The welfare of the child is a paramount consideration in matters of custody, and the Appellate Court has limited power to stay the operation of the order passed by the Magistrate under the PWDV Act.

JUDGMENT

John Michael Cunha, J. - By making an application under Article 226 of the Constitution of India and section 482 Cr.P.C., petitioner has sought to stay the operation of the order dated 11.12.2019 passed on I.A.No.1 in Criminal Appeal No.5009/2019 by the II Additional District and Sessions Judge, Kodagu, Madikeri, sitting at Virajpet (Annexure-F). By the said order, learned Sessions Judge while entertaining the appeal filed by the first respondent herein suspended the order dated 25.03.2019 passed by the Trial Court in Crl.M.C.No.157/2018 regarding custody of the child till disposal of the appeal or till further orders.

2. The facts necessary for consideration of the prayer sought for by the petitioner are as follows:-

The first respondent is the mother of the minor by name Dillan Devaiah. She married one Sri.K.M.Madaiah on 06.01.2008. In the wedlock, she gave birth to a son by name Dillan Devaiah and a daughter by name Keerti. Her husband met with an untimely death on 12.05.2013. According to the first respondent, after the death of her husband, she was ill-treated by her mother-in-law namely the petitioner herein and her sister-in-law and brother of her mother-in-law namely respondent Nos.2 and 3 herein. She was thrown out of the matrimonial home with her small daughter and was not allowed to take her son. Since then, first respondent along with her daughter took shelter in her parental house. As she was unable to maintain herself and as there were threats of alienation of the properties fallen to the share of her late husband, she presented an application under section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "PWDV Act") seeking protection order, residence order, compensation as well as custody order in respect of her minor son.

3. On considering the averments made in the application and the supporting affidavit, learned Magistrate passed an ex-parte interim order dated 06.08.2018 under section 21 of the PWDV Act, 2005 granting temporary custody of the child named Dillan Devaiah to the first respondent namely his mother. The mother-in-law/petitioner herein was directed to pay maintenance to the mother of the child. Against the said ex-parte interim order, petitioner herein mother-in-law filed an application under section 25(2) of PWDV Act for modification of the ex-parte interim order. Learned Magistrate, by order dated 25.03.2019, set-aside the ex-parte interim order granting temporary custody of the child named Dillan Devaiah to the first respondent namely his mother and the contesting respondents were prohibited from alienating or mortgaging or creating any kind of charge on the share of the minors in the ancestral properties. The ex-parte order regarding interim maintenance was directed to be in force till disposal of the main petition.

4. Feeling aggrieved by the said order, respondent No.1 preferred an appeal before the learned District and Sessions Judge of Kodagu-Madikeri, sitting at Virajpet and the learned Sessions Judge while entertaining the appeal Crl.A.No.5009/2019, passed an order dated 11.12.2019 on I.A.No.1, suspending the order passed by the learned Magistrate dated 25.03.2019 in Crl.M.C.No.157/2018, which is impugned in the present petition.

5. Learned counsel appearing for the petitioner placing reliance on the decision of this Court in the case of Smt.YASHASWINI vs. Mr.M.ANEGUDDE GANESH, (2016) ILR(Kar) 2155 , would submit that the impugned order passed by the Appellate Court is wholly without jurisdiction in the absence of any express or implied provision under the PWDV Act and also in the absence of anything conferring the benefits of section 389 Cr.P.C. on the Appellate Court in respect of an order passed by the learned Magistrate under section 12 of the PWDV Act, the Appellate Court has no power to stay the operation of the order passed by learned Magistrate. Further, referring to the observations made by learned Magistrate while setting aside