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BOMBAY HIGH COURT
Prakash D. Naik, J.
Payal Sudeep Laad @ Payal Sharma —Appellant
versus
Sudeep Govind Laad —Respondent
Criminal Application No.186 of 2018
Decided on 2.11.2018
Protection of Women from Domestic Violence Act, 2005 – Section 21 – Applicant wife filed an application under Section 12 of the Act seeking reliefs under Sections 18, 19, 20, 21 and 22 of the Act – Applicant had left her matrimonial home with minor child and made separate residential arrangement with her parents – Respondent filed application seeking access of child – Magistrate allowed application and granted visitation rights and keeping custody of child for 48 hours for twice in a month – Order was affirmed in appeal by Sessions Court – Application under Section 482 Cr.P.C. seeking challenge to order – Whether application preferred by respondent under Section 21 of DV Act was maintainable? Yes.
(Paras 9, 11, 13 and 19)
Result: Petition dismissed.
Certainly. Based on the provided legal document, here are the key points:
A petition under Section 12 of the Domestic Violence (DV) Act was filed by the wife seeking various reliefs, including custody and visitation rights, after leaving the matrimonial home with the child due to violence and threats. The application also included relief under Section 21 of the DV Act for visitation rights (!) (!) .
The Magistrate granted visitation rights to the respondent (husband) and custody of the child for 48 hours twice a month, which was affirmed by the Sessions Court. The applicant challenged these orders, arguing they were contrary to law and principles of natural justice (!) (!) .
The applicant contended that the respondent’s application under Section 21 of the DV Act for custody or visitation was not maintainable because the respondent is not an “aggrieved person” under the Act, and the law primarily recognizes the wife as the aggrieved party for such relief (!) (!) .
The applicant emphasized that she had left the matrimonial home with the child due to violence and threats, and thus, she had not sought custody under Section 21 herself, which limits the application of that section to the “aggrieved person” or someone acting on her behalf (!) (!) .
The Court clarified that under Section 21, a magistrate can grant custody and specify visitation arrangements at any stage of proceedings under the DV Act, but the application must be made by the “aggrieved person” or someone acting on her behalf. The respondent’s application was thus not maintainable as it did not meet these criteria (!) (!) .
The courts below correctly interpreted that the primary purpose of the DV Act is to protect the safety and welfare of the “aggrieved person,” and the law does not envisage the husband independently initiating custody or visitation applications under Section 21 unless he is the “aggrieved person” or acting on her behalf (!) (!) .
The interpretation of Section 21 must be aligned with the object and purpose of the legislation, which is to safeguard the welfare of the victim and the child. The courts emphasized that the law intends to provide relief to the “aggrieved person” and does not grant independent rights to the respondent in the absence of such status (!) (!) .
The courts also noted that the applicant had already been in custody of the child since December 2, 2017, and therefore, had not sought custody under Section 21. The respondent’s application for visitation was therefore not barred but was subject to the legal framework that limits such applications to the “aggrieved person” or her representative (!) (!) .
The courts upheld that the orders granting visitation rights were within the scope of the law, considering the welfare of the child, and were based on proper interpretation of the relevant provisions, including the child access and custody guidelines (!) (!) .
The overall order dismissed the petition, confirming the legality of the lower courts’ decisions, and directed the parties to comply with the existing orders regarding visitation and custody arrangements (!) (!) .
The applicant’s request to stay the operation of the court’s order was considered, but the interim arrangement was continued for a limited period, and ultimately, the petition was dismissed (!) (!) .
Please let me know if you need further analysis or specific legal advice.
JUDGMENT
Prakash D. Naik, J.—By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant seeks to challenge the order dated 3rd February 2018 passed by the Sessions Court, Mumbai rejecting the applicant’s appeal filed under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (‘D.V.Act’) which was filed challenging order dated 5th January 2018 passed by Metropolitan Magistrate, 31st Court, Vikroli, Mumbai.
2. The relevant facts for determining the issues raised in this application are as follows:
a) The marriage between the applicant and respondent no.1 was solemnized on 7th May 2008. Out of the wedlock child Vihan was born on 14th September 2012;
b) On 17th July 2017 the applicant filed an application before the learned Metropolitan Magistrate under Section 12 of DV Act seeking relief under Sections 18, 19, 20, 21 and 22 of the DV Act. The said application was filed against respondent no.1 and his mother. The proceedings were numbered as CC.122/DV/2017;
c) The applicant left her matrimonial home on 2nd December 2017 with child Vihan and made separate residential arrangement along with her parents;
d) The applicant addressed a letter dated 6th December 2017 to the school authorities of Vihan. The respondent no.1 preferred application vide Exhibit9 dated 20th December 2017 seeking access of Vihan;
e) The applicant filed her affidavit-in-reply before the learned Magistrate opposing the said application on the ground of maintainability;
f) By order dated 5th January 2018, learned Metropolitan Magistrate, 31st Court, Vikroli, allowed the application filed by respondent no.1 and he was allowed to exercise his visitation rights and keep custody of his child for 48 hours for twice in a month i.e. on every second and fourth Friday from 6 pm to Sunday 6 pm i.e. on alternate week ends;
g) The applicant challenged the aforesaid order by preferring appeal before the Sessions Court. The applicant also preferred an application for stay of the order passed by the learned Magistrate. The Sessions Court by order dated 12th January 2018 granted interim stay to the order of the learned Magistrate pending hearing of the appeal. The respondent no.1 filed his affidavit in reply on 18th January 2018. The Sessions Judge by order dated 3rd February 2018 dismissed Appeal No.30 of 2018 filed by applicant and upheld the order dated 5th January 2018 passed by learned Magistrate.
3. Learned counsel for applicant submitted that the impugned orders are contrary to the provisions of law. The applicant was constrained to prefer an application under the DV Act seeking reliefs u/s 18 19, 20, 21 and 22 of the DV Act on 17th July 2017. The said application was preferred on account of immense verbal, emotional, physical, economical violence at the hands of respondents. The respondent no.1 did not file his written statement denying any charges against him on several dates and had threatened the applicant to withdraw the complaint. The applicant was constrained to lodge the NC complaints with police. Due to severe apprehension and scary atmosphere at the matrimonial house, the applicant had no alternative but to leave her matrimonial home on 2nd December 2017 with child Vihan and made separate residential arrangement along with her parents. It is further submitted that the applicant had to address letter dated 6th December 2017 to the school authorities of Vihan as the respondent no.1 had threatened kidnapping of child, which is reflected in the NC dated 28th November 2017. Without filing written statement and after a period of about five months of filing the complaint under DV Act, the respondent no.1 had preferred an application for urgent interim relief vide Exhibit9 on 20th December 2017. The applicant filed her affidavitinreply opposing the application on the ground of maintainability. It is submitted that the learned Magistrate vide order dated 5th January 2018 erroneously allowed the application pre
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