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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S. S. SHINDE, J.
Pramod Prakash Mulik and Ors. – Petitioners
Versus
Sou. Manisha Pramod Mulik and Ors. – Respondents
Criminal Writ Petition No.3222 of 2018
Decided On : 31-07-2019
Custody - Domestic Violence - Criminal Procedure Code, 1973 - Section 97, Protection of Women from Domestic Violence Act, 2005 - Section 18, 19, 20, 21, 22 - [Criminal Procedure Code, 1973 - Section 97, Protection of Women from Domestic Violence Act, 2005 - Section 18, 19, 20, 21, 22] - The court discussed the scope and purport of Section 97 of the Criminal Procedure Code and Section 21 of the Domestic Violence Act. It emphasized that the power under Section 97 of the Cr. P C could only be exercised by the Magistrate if a person is confined and such confinement amounts to an offence. On the other hand, Section 21 of the Domestic Violence Act deals with custody orders and allows the Magistrate to grant temporary custody of a child to the aggrieved person. The court held that the impugned orders did not require any interference as the findings recorded by both the Courts below were reasonable and plausible.
Fact of the Case:
The case revolved around the custody of a child, Pravesh, with the Petitioners and the Respondent No.1 wife. The Respondent No.1 alleged ill-treatment and illegal demands by the Petitioners, while the Petitioners claimed that the Respondent No.1's behavior changed significantly after the birth of the child and that she was diagnosed with Schizophernia Paraniod. The courts below granted temporary custody of the child to the Respondent No.1 wife and directed the Petitioners to pay maintenance and compensation.
Finding of the Court:
The court found that the impugned orders did not require any interference as the findings recorded by both the Courts below were reasonable and plausible. It emphasized the welfare of the child as the paramount consideration and upheld the direction to hand over custody of the child to the Respondent No.1 wife.
Issues: The main issue revolved around the custody of the child, allegations of ill-treatment, and the application of relevant provisions of the Criminal Procedure Code and the Protection of Women from Domestic Violence Act.
Ratio Decidendi: The court emphasized the difference between the scope and purport of Section 97 of the Criminal Procedure Code and Section 21 of the Domestic Violence Act. It held that the impugned orders did not require any interference as the findings recorded by both the Courts below were reasonable and plausible.
Final Decision: The Writ Petition was rejected, and the Rule was discharged. The Petitioners were directed to hand over custody of the child to the Respondent No.1 as directed by the learned Judicial Magistrate, First Class, Kadegaon.
JUDGMENT :
1. Rule. Rule made returnable forthwith and heard with the consent of parties.
2. By this Writ Petition, the Petitioners challenged the order dated 15/06/2018 (the actual date of order is 12/06/2018), passed by the learned Additional Sessions District Judge, Sangli rejecting the Application below Exhibit 5 in Criminal Appeal No.264 of 2017. By the impugned order, the learned Additional Sessions Judge, Sangli has partly allowed the application filed by the Petitioners for staying the execution of the judgment and order passed by the learned Judicial Magistrate, First Class, Kadegaon in Criminal Misc. Application No.132 of 2015 and, partly stayed the order of the learned Magistrate dated 23/11/2017 to the extent of direction to the Respondent Nos.1 to 6 therein i.e. the Petitioners herein, to pay the amount of compensation of Rs.11,00,000/- to the Respondent No.1 wife and to hand over the gold ornaments of 150 grams and other personal articles and gift articles to Respondent No.1 wife. However, the learned Additional Sessions Judge, refused to stay the said order of the learned Magistrate directing the Petitioners herein to pay monthly maintenance of Rs.9500/- to Respondent No.1 - wife and to hand over custody of son Pravesh to Respondent No.1.
3. The case of the Petitioners in brief can be stated thus :-
Petitioner No.1 got married with Respondent No.1 on 18/01/2013. On 10/01/2014 Petitioner No.1 and Respondent No.1 are blessed with a male child by name Pravesh who is now, according to the Petitioners, five and half years old. It is the case of the Petitioners that after delivery of child the nature of Respondent No.1 changed significantly, and Respondent No.1 started quarreling with the Petitioners. It is stated that Respondent No.1 was not taking care of the son and, she started abusing and assaulting as well as detaining the son in bedroom. It is the case of the Petitioners that because of such type of behaviour of Respondent No.1, the Petitioners started medical treatment to Respondent No.1 from their family doctor. They further stated that when Respondent No.1 was diagnosed that, she is suffering from Schizophernia Paraniod, and as the behaviour of Respondent No.l was violent, she was hospitalized as per the advice of the doctors. It is stated that somewhere in December 2014, the father of Respondent No.1 took Respondent No.1 and son Pravesh to his native place and, when Petitioner No.1 husband visited the place of the parents of Respondent No.1 to take back Respondent No.1 and the son, the father refused custody of the son. At that time Petitioner No.1 noticed burn injuries on the legs of the child, therefore, he lodged a complaint to concerned Police Station Chinchni Police Station, Sangli. Accordingly the Police handed over the custody of son and Respondent No.1 to Petitioner No.1. Thereafter Respondent No.1 resumed her treatment and admitted in J. J. Hospital from 04/08/2015. The Petitioners stated that, on 11/08/2015 the father of Respondent No.1 forcibly took away Respondent No.1 to his house by taking discharge from the hospital. Thereafter Petitioner No.1 gave a notice to Respondent No.1 through his advocate on 12/08/2015 calling upon Respondent No.1 for cohabitation. It is the case of the Petitioners that, the custody of the child was always with the Petitioners and they were taking care of the son.
4. Thereafter on 17/08/2015 Respondent No.1 filed miscellaneous application being M.A. No.118 of 2015 under the provisions of Section 97 of the Criminal Procedure Code before the learned JMFC Kadegaon for issuing search warrant and seeking custody of child Pravesh from the Petitioners. The Petitioner No.1 has filed his written statement to the said Miscellaneous Application.
5. It is stated by Respondent No.1 wife in the said M A No. 118 of 2015 that after marriage she went to Mumbai for cohabitation with Petitioner No.1 husband, there her in-laws started ill treating her on miscellaneous reasons and for illegal d
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