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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
S.B. Shukre, J.
Dr. Parijat Vinod Kanetkar - Petitioner
Versus
Mrs. Malika Parijat Kanetkar, Nee Ms. Malika Vasant Purohit - Respondent
Criminal Writ Petition No. 750 Of 2016
Decided On : 21-12-2016
In the present case, by seeking custody of the child, the respondent No. 1 has shown that she is concerned about the welfare of her child and desirous of giving him all that care, love and affection which only a mother can give. If this is so, any denial of interim custody to her would result in harming her mental health and thus cause domestic violence to her. But, of course this would not be the primary consideration for deciding custody of the child. Welfare of the child, as held in several cases, including those relied upon by both sides, is of the paramount consideration. In the fact situation of this case, the baby is so small that his being with mother, who is yearning for her reunion with her child, would only help him grow and develop, physically, psychologically and mentally well, at least for the present. The facts and circumstances of this case discussed earlier would also show that the respondent No. 1, for the time being, has established herself to be a fit person to have the custody of the baby. Her conduct for about two and half months during the period from 17.2.2015 till about early May 2015 has also been found to be not showing indifference or non-attachment) towards `A`. All this would show that welfare of `A`, for the present, will be well achieved, if his interim custody is given to respondent No. 1.
Family Courts Act, 1984 - Sections 7, 8 and 20-Protection of Women from Domestic Violence Act, 2005, Section 21-Grant of interim custody of child.-Welfare of child is of paramount consideration for grant of interim custody of child.
In the present case, by seeking custody of the child, the respondent No. 1 has shown that she is concerned about the welfare of her child and desirous of giving him all that care, love and affection which only a mother can given. if this is so, any denial of interim custody to her would result in harming her mental health and thus cause domestic violence to her. But, of course this would not be the primary consideration for deciding custody of the child. Welfare of the child, as held in several cases, including those relied upon by both sides, is of the paramount consideration. In the fact situation of this case, the baby is so small that his being with mother, who is yearning for her reunion with her child, would only help him grow and develop, physically, psychologically and mentally well, at least for the present. The facts and circumstances of this case discussed earlier would also show that the respondent No. 1, for the time being, has established herself to be a fit person to have the custody of the baby.
Family Courts Act, 1984 - Section 7(1), Explanation (g), (2), 8 and 20-Protection of Women from Domestic Violence Act, 2005, Section 21-Jurisdiction of Magistrate.-Magistrate, exercising jurisdiction in relation to area where Family Court is established, has jurisdiction to give interim custody under Section 21 of D.V. Act.
Jurisdiction of the Family Courts under both parts of Section 7 do not cover the jurisdiction exercisable by Judicial Magistrate, First Class in respect of grant of interim custody under Section 21 of the Protection of Women from Domestic Violence Act, 2005 and, therefore, there is no question of jurisdiction of the Magistrate under Section 21 of 2005 Act being inconsistent with the provisions conferring jurisdiction upon the Family Court and as such, the Act, 1984 will not have any overriding effect upon 2005 Act.
Reliefs available under Sections 18, 19, 20, 21 and 22 of 2005 Act are in the nature of a help, which is extended to an aggrieved person in addition to the assistance that the aggrieved person may have under any other law for the time being in force whether civil or criminal. This is clear from the provision of Section 26 of 2005 Act which lays down that any reliefs available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding before the Civil Court, Family Court or a Criminal Court. In other words, the reliefs available under the 2005 Act are supplementary in nature and do not exclude similar reliefs available under other laws.
This is further reaffirmed by the provision of Section 36 of 2005 Act prescribing that the provisions of this Act shall be in addition to and not in derogation of provisions of any other law for the time being in force.
Family Courts Act, 1984 - Sections 7(1) Explanation (g)(2), 8 and 20-Protection of Women from Domestic Violence Act, 2005, Section 21-Questions to jurisdiction of the Court-Determination of.-In instant case, it was held that application under Section 21 of D.V. Act seeking interim custody was maintainable before a Magistrate exercising jurisdiction in relation to an area where Family Court was established and Magistrate had jurisdiction such application, legally.
Jurisdiction of the Family Courts under both parts of Section 7 do not cover the jurisdiction exercisable by Judicial Magistrate, First Class in respect of grant of interim custody under Section 21 of the Protection of Women from Domestic Violence Act, 2005 and, therefore, there is no question of jurisdiction of the Magistrate under Section 21 of 2005 Act being inconsistent with the provisions conferring jurisdiction upon the Family Court and as such, the Act, 1984 will not have any overriding effect upon 2005 Act. Reliefs available under Sections 18, 19, 20, 21 and 22 of 2005 Act are in the nature of a help, which is extended to an aggrieved person in addition to the assistance that the aggrieved person may have under any other law for the time being in force whether civil or criminal.
This is clear from the provision of Section 26 of 2005 Act which lays down that any reliefs available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding before the Civil Court, Family Court or a Criminal Court. In other words, the reliefs available under the 2005 Act are supplementary in nature and do not exclude similar reliefs available under other laws. This is further reaffirmed by the provision of Section 36 of 2005 Act prescribing that the provisions of this Act shall be in addition to and not in derogation of provisions of any other law for the time being in force.
S.B. Shukre, J.
This petition questioned the legality and correctness of the portion of the order dated 8.10.2015 granting interim custody to the respondent No.1 passed by the Judicial Magistrate, First Class, Amravati in domestic violence proceedings being CC (DV) No. 98/2015 and also the order dated 31.8.2016 confirming the order of interim custody, passed on 31st August, 2016 in Criminal Appeal No. 175/2010 by Additional Sessions Judge-3, Amravati.
2. The petitioner No. 1 is the husband of respondent No.1 and petitioner Nos. 2, 3 and 4 are respectively the mother-in-law, father-in-law and sister-in-law of respondent No.1. The marriage of petitioner No.1 with respondent No.1 was solemnized at Amravati on 18.2.2014 as per Hindu Rites and Customs and also under the Special Marriage Act, 1955. After the marriage, the respondent No.1 started cohabiting with the petitioner No.1, who was in joint residence with petitioner Nos.2 to 4 at Mumbai. It appears that soon after the marriage, a discord developed between petitioner No.1 and respondent No.1, for which, according to the respondent No.1, even the petitioner Nos.2 to 4 were responsible. The respondent No.1 alleged that she was tortured mentally by the petitioners when she was residing in their house at Mumbai. The respondent No.1, immediately after the marriage, carried pregnancy and on 25.10.2014 gave birth to a son Ayaan, prematurely. It was in her 7th moth of pregnancy. The respondent No.1 alleged that the petitioners, on the excuse of the baby being prematurely born, did not allow her to handle and take care of the baby. She alleged that after the baby was brought back home in November 2014, the respondent No.1 was not permitted to nurture and raise her child. She further alleged that she was subjected by petitioners to mental harassment by hurling abuses and critical comments. She further alleged that on 17.2.2015, when the child was to be taken to the hospital for vaccination, the petitioners prevented respondent No.1 from touching and handling her child charging that she was incapable of rearing a child. This all created a disgusting situation for respondent No.1 and as submitted by her, she could no longer bear the mental torture and, therefore, she straightaway headed parental home at Amravati from the hospital. The respondent No.1 further maintained that after her mental condition was stabilized, she approached the Court of Judicial Magistrate, First Class at Amravati by filing application under the Protection of Women from Domestic Violence Act, 2005 (in short, DV Act") seeking various reliefs from that Court. It was registered as CC (DV) case No. 98/2015. In these proceedings, the respondent No.1 also filed an application (Exh.5) for seeking interim reliefs including the relief of grant of interim custody under Section 21 of the DV Act.
3. The allegations and the claims made against the petitioners were vehemently denied by them. They alleged that the respondent No.1 was inhuman in treating her baby and utterly irresponsible in her motherly duties. They contended that the respondent No.1 was never mentally prepared for a pregnancy and was unable to breastfeed her child due to lack of lactation. They also submitted that the respondent No.1 did not take adequate care of the child as advised by the doctor. They claimed that the respondent No.1 never wanted to marry with petitioner No.1. They also submitted that it was in the interest and welfare of the baby Ayaan, who required love and affection as well as proper treatment from expert doctors available in Mumbai, that his custody was not handed over even by an interim order to respondent No.1.
4. On merits of the case, the learned Judicial Magistrate, First Class, Amravati found that it was in the interest and welfare of the child that the custody was handed over to respondent No.1 and accordingly, by her order passed on 8th October, 2015, granted the same to the respondent No.1. This order was challenged in appe
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