Point of law : Under the D.V.Act, the Magistrate has the powers to adjudicate upon the application filed by the aggrieved person for the relief's under Sections 17 to 23 of the Act. The mere pendency of the matrimonial cases between the parties does not divest the Magistrate of the jurisdiction under those provisions of the D.V.Act.

ORDER :

1. “Whether the order dated 10.01.2019 passed by the JMFC., II Court, Mangaluru, D.K. (for short ‘the trial Court’) in Criminal M.C.No.02/2019 and the entire proceedings in the said case amount to abuse of the process of the Court” is the question involved in this case.

2. Respondent was the petitioner and petitioner was the respondent in Crl.Misc.No.2/2019 before the Trial Court. The marriage of the petitioner and respondent was solemnized on 03.12.2011 at Mangaluru according to the Christian rights as the parties belong to Christian religion. Out of the wedlock the couple begot daughter by name Sarah on 01.10.2012 and son by name Jayden on 17.02.2015. The couple had the troubled marriage.

3. For the purpose of convenience petitioner and respondent are referred to henceforth as husband and wife respectively. The wife filed Crl.M.C.No.2/2019 before the JMFC, II Court, Mangaluru, D.K., under Section 12 of Protection of Women from Domestic Violence Act, 2005 (for short ‘D.V. Act’) against the husband on 08.01.2019. Under the petition she claims that the respondent has kidnapped the minor children and she sought restoration of the custody of the children, protection order for herself and her children, maintenance of Rs.50,000/-each to the children, separate residence, cost, compensation etc. Before that the husband and wife had filed complaints against each other before the police.

4. Even before the notice of the petition in Crl.M.C.No.2/19 was issued, the husband voluntarily appeared before the trial Court. Along with the petition, the wife had filed interlocutory application under Sections 21 and 23 of the D.V.Act, for a direction to the Station House Officer, Mangaluru, East Police Station to procure Baby Sarah and Master Jayden and restore them to her custody and interim protection for herself and the children.

5. The application was actually to grant ex-parte order. Since the husband appeared before the trial Court even before issuance of notice he was also heard in the matter. The trial Court order indicates that husband filed a memo denying the allegations made in the interim application and making allegations that the wife is leading adulterous life and therefore he has filed complaint against her, the alleged adulterer and his mother-in-law. He also produced the alleged WhatsApp messages exchanged between the wife and the alleged adulterer etc.

6. The trial Court after hearing the parties, by the impugned order directed the husband to hand over the children to the custody of the wife pending disposal of the application on merits. Further the trial Court directed the jurisdictional police to procure the children from wherever they are and to restore them to the custody of wife. The trial Court held that though the husband has to be given an opportunity, looking in to the interest of the minor children aged 4 and 6 years, it is necessary to restore them to the custody of the petitioner/wife for care and protection till further orders.

7. The husband has filed this petition for quashing of the order granting interim custody and the entire proceedings before the trial Court on the following grounds;

(i) Since the parties belong to Christian religion, they are governed by Indian Divorce Act. The husband has filed M.C.No.412/2019 against the wife and wife has filed M.C.No.206/2019 against the husband for dissolution of marriage. The custody of the children can be granted only in those proceedings.

(ii) Only the Court adjudicating the matrimonial cases or the Court of under Guardians and Wards Act, are competent to decide the issue of custody of the children.

(iii) The adjudication for custody of the children does not lie under the D.V.Act. At the most under D.V.Act, temporary custody can be granted. The trial Court bypassing family/personal laws resorted to pass such order which is abuse of the process of the Court.

(iv) The enquiry as required under Section 23 of the D.V.Act was not conducted. Therefore, the order is