Heard Sri K. Chidambaram, learned counsel for the petitioner, Sri M. Rajasekhara Reddy, learned counsel for the 1st respondent and Sri A. Ramesh, learned counsel representing the learned Public Prosecutor for the 2nd respondent.

In D.V.C. No.7 of 2008 on the file of the II Additional Chief Metropolitan Magistrate-cum-Mahila Magistrate, Vijayawada, the petitioner herein filed Criminal M.P. No.1140 of 2008 for the custody of Manaswini alias Vyshnavi, the girl child, aged 5 years, born out of the conjugal relationship between the petitioner and the 1st respondent. The learned Magistrate passed an order on 17-04-2008 after enquiring the child, directing the custody of the child to be with the father/the petitioner as per the preference expressed by the child in the Court. In Criminal Appeal No.110 of 2008 before the Sessions Judge, Mahila Court, Vijayawada, the said order was challenged and the learned Judge by the judgment, dated 29-06-2009 considered the question whether the trial Court had power to grant permanent custody of the child to the father under the Protection of Women from Domestic Violence Act, 2005 (for short “the Act”). This was because it was specifically contended that the entrustment of custody to the father was not in tune with Section 21 of the Act. However, the appellate Court interfered with the order granting such custody on the ground that the custody of the child, aged below 5 years, should have been given only to the mother but not the father and did not go into the question of jurisdiction to grant or not to grant such an order.

Against the direction of the appellate Court to hand over the custody of the minor daughter to the 1st respondent within one day, the present criminal petition has been filed contending that it was the welfare of the child as elicited by the trial Court that should be the paramount consideration for passing an appropriate order and in interfering with such an order in the appeal, the appellate Court travelled beyond the scope of the appeal. The petitioner further referred to some factual circumstances justifying the continuance of custody of the child with him. Pending the criminal petition, the operation of the judgment in Criminal Appeal No.110 of 2008 was suspended to the extent of the direction to handover the custody of the minor daughter by the petitioner to the 1st respondent herein.

Sri M. Rajasekhara Reddy, learned counsel for the 1st respondent brought to notice of the Court the specific and unambiguous language of Section 21 of the Act, which permitted grant of temporary custody of any child by the Magistrate only to the aggrieved person or the person making an application on her behalf.

The Special Statute gave specific power to the Magistrate in respect of grant of such temporary custody to the aggrieved person or any other person on her behalf notwithstanding anything contained in any other law for the time being in force and therefore, the considerations arising under personal law of the parties or any other statutory provisions also may not matter to the extent of exercise of jurisdiction by the Magistrate under Section 21 of the Act. While the Magistrate has such jurisdiction to exercise in favour of the aggrieved person or any person on behalf of the aggrieved person, any converse power to the Magistrate to grant temporary custody of any child to the respondent cannot be read from the said provision nor does it enable the Magistrate to entertain an application from the respondent for such a purpose like the application in question, which was entertained by the trial Court at the instance of the petitioner herein. The Magistrate could not have travelled beyond the specific and restricted power granted by Section 21 of the Act in ascertaining the wishes of the child and directing entrustment of the custody of the child to the petitioner, who is the respondent in the domestic violence case.

Sri K. Chidambaram, learned counsel for the petitioner referre