IMPORTANT POINT
Magistrate is empowered to pass an ex parte order in granting interim/temporary custody of any child to aggrieved party.

JUDGMENT

S.K. Sahoo, J.—The little angel ‘Sadhika’ came to see the beauty of this wonderful world with an honest face, simple looks and heart touching smiles. She was full of expectations that her parents would be her role models and would shoulder all the responsibilities to give her the wings of independence and allow her to grow of in an atmosphere of unselfishness. She wanted to prove herself to be the greatest gift of God with the divine love of her parents. Time rolled on. With the passage of time, her dream started shattering. She kept on wondering, fearing and doubting her peaceful existence. She saw her parents fighting for their ego forgetting all ethics of domestic discipline. She started crying, “Please Papa Mama! Don’t spoil your tiny creation. Be magnanimous in forgiving each other. Don’t fight for my custody. I can’t be happy with one without the other. Come together. I am waiting for both of you with open arms. Hold my hands from both the sides. Lead me ahead. With all your brilliancy, we can recreate a heavenly home and prove ourselves to be the best family in the world.”

The petitioner Vinay Gupta has filed this criminal revision petition challenging the impugned order dated 02.08.2016 passed by the learned Sessions Judge, Cuttack in Criminal Appeal No. 70 of 2016 in dismissing his criminal appeal and thereby upholding the order dated 18.07.2016 passed by the learned S.D.J.M. (Sadar), Cuttack in D.V. CRLMC No. 179 of 2016 in allowing the petition filed by the opposite party Saveri Nayak under section 23(2) of the Protection of Women from Domestic Violence Act, 2005 (hereafter ‘P.W.D.V. Act’) for ex-parte order of interim custody of the minor girl child of the parties namely, Sadhika Gupta in favour of the opposite party and directing District Protection Officer (D.P.O.), Cuttack for the production of the girl child from the custody of the petitioner on or before 08.08.2016 in his Court.

2. On 01.07.2016 the opposite party filed an application under sections 12, 18 and 21 of P.W.D.V. Act against the petitioner in the Court of learned S.D.J.M. (Sadar), Cuttack which was registered as D.V. CRLMC No. 179 of 2016.

It is the case of the opposite party that she is the legally married wife of the petitioner and their marriage was solemnized on 23rd February 2003 at Ludhiana in accordance with Hindu rites and customs and both of them are software professionals working in Multi National Company. After marriage, both the petitioner and the opposite party stayed at Noida, U.P. till December 2003 and then they shifted to Gurgoan, Haryana in January 2004 and stayed till 2010. During this period, it is the case of the opposite party that the petitioner tortured her both physically and mentally and one year after marriage, the petitioner and his family members started demanding dowry and the petitioner did not even hesitate to assault the opposite party demanding a son. In May 2007 when the opposite party had to undergo surgery for the removal of her right ovary, neither the petitioner nor his parents took care of her. In December 2007 when the opposite party met with an accident and sustained injury on her spinal cord and after surgery, the doctor advised her to take complete bed rest for three months, the petitioner and his family members created an unhealthy atmosphere for which the opposite party had to undergo a state of depression, leading to migraine and was often in a state of anxiety. In January 2011, the opposite party became pregnant but the petitioner and his parents did not cooperate with the opposite party. They were expecting a male child. The opposite party came to her native place at Cuttack where she gave birth to a girl child namely Mehr @ Sadhika Gupta in the month of August 2011. The petitioner did not spend any amount towards the delivery and upbringing of the girl child and everything was managed by the opposite party with a lot of hardship and agony. As a girl child was born, the petitioner and his pa