The PWDV Act is not a final remedy for custody and guardianship issues of a minor child, and the provisions of the PWDV Act and the Family Courts Act should be harmoniously construed.

ORDER

1. This petition is directed against an order dated 02 April 2022 passed by the Family Judge granting visitation rights albeit supervised and in the concerned Court complex. The order is assailed with learned counsel contending that in light of the restraint which stood imposed by the Court dealing with the application made under the Protection of Women from Domestic Violence Act, 2005 ['PWDV'] and more particularly the order of 06 August 2021 made therein, the rights of limited visitation as granted by the Family Judge would not only be incongruous and incompatible but also wholly arbitrary and illegal.

2. Having heard learned counsel for parties this Court finds no ground to sustain the challenge on grounds addressed on the aforesaid lines for the following reasons.

3. The Court notes that the order passed under the PWDV was based upon the allegations which were made by the petitioner here against the husband. There was no allegation of cruelty or physical abuse levelled against the husband in relation to the children.

4. Bearing in mind the allegations that were laid by the petitioner the Court notes that the respondent here stood restrained from communicating with the children and the complainant in any manner whatsoever in light of the order passed in the PWDV proceedings. It was further provided in those proceedings that the respondent would not disturb the custody of the children.

5. That order in the considered opinion of this Court would not detract from the authority and jurisdiction as conferred on the Family Court to consider the grant of interim visitation rights to the father of the minor child. It is pertinent to note that the provisions of the PWDV do not in the considered opinion of this Court denude the Family Judge of the jurisdiction to make arrangements as embodied in the order impugned. Ultimately the ambit and extent of the two competing statutes must be harmoniously construed so as to avoid a situation of repugnancy and conflict. This very aspect was noticed and underlined by a learned Judge of this Court in Amit Kumar and another Vs. Charu Makin [2017 SCC OnLine Del 7861] where the Court held:-

10. It is thus evident that notwithstanding anything contained in any other law as an interim measure in the best interest of the child and to avoid any harm to the interest of the child/children, the Court under Section 21 of the PWDV Act can pass order granting temporary custody of the child/children and/or make necessary arrangements for the visit of the child. However, PWDV Act is not a final remedy for the custody and guardianship issues of a minor child. Section 7(g) of the Family Courts Act, 1984 vests jurisdiction in a Family Court to decide suits or proceedings in relation to the guardianship of a person or the custody of or access to any minor. Section 7(g) of the Family Courts Act, 1984 provides for the remedy i.e.:

'7. Jurisdiction

(1).

(a) .

(g) a suit or proceedings in relation to the guardianship of the person or the custody of, or access to, any minor.'

11. The petitioner having already availed the remedy under the Family Courts Act and having lost in respect of the prayer made in the present petition cannot be permitted to continue with this remedy. Moreover, as stated by the learned counsel for the petitioner, he has already challenged the order dated 26th December, 2016 passed by the learned Additional Principal Judge, Family Court, West District before this Court in an appeal.

12. Similar issue came up for consideration before the High Court of Rajasthan where in the decision reported as 2014 LawSuit (Raj) 545 Payal Agarwal v. Kunal Agarwal it was held:

11. Under section 21 of the Act 2005 independent remedy has not been provided to seek custody of the minor child and jurisdiction has been conferred on the Magistrate to grant temporary custody of such a child to the aggrieved person during the course of hearing of an application for grant of protection order or for any other relief under the provis