1. The petitioner is husband of respondent no.1. They got married in the year 2002. Out of the wedlock, wife gave birth to a son on 6.11.2004 named Mihir. Subsequently, however, disputes arose between husband and wife. It is stated that wife and husband reside separately since 17.5.2007. With respect to who is responsible for such separation, there are contradicting versions. It is not necessary for me to go into the same in the present proceedings. It is however, not in dispute that since separation, son is with the father. Here again wife's case is that despite best efforts the custody of the child is not given to her. Again with respect to this, also I propose to make no observations because proceedings for custody of child are pending before the Sessions Court.

2. In the present proceedings, husband has challenged an order dated 13.3.2009 passed by learned JMFC, Bhuj in Criminal Application No.481/2008 filed by wife under the Protection of Women from Domestic Violence Act(“the Act” for short). Said order was confirmed by the Sessions Court in Appeal by order dated 14.7.2010 passed in Criminal Appeal No.7/2009.

3. In the impugned order, learned Magistrate has on the application of wife passed several different orders which are to the following effect :

Resistance Order Learned Magistrate directed the husband to provide one

bedroom premise in Ahmedabad to the wife for her residence or in lieu therof to pay Rs. 2,000/- by way of rent to her.

Financial Assistance Learned Magistrate directed the husband to pay Rs. 4,000/-

per month to the wife by way of maintenance.

Custody Order Learned Magistrate further directed the husband to hand

over the custody of the child Mihir to the wife till disposal of the proceedings under the Guardians and Wards Act and directed him to pay for his education and also permitted husband to visit son periodically.

Protection Order Learned Magistrate directed the husband and family members not to commit any act of domestic violence against the wife

4. This order was confirmed by the Sessions Court in appeal. Husband therefore, has filed the present petition challenging the said order.

5. On 16.8.2010, while issuing notice, this Court had stayed the directions for handing over custody of the child. Interim order was confirmed while admitting the petition.

6. I have heard learned advocates for the parties for final hearing of the proceedings.

7. Counsel Shri N.V. Solanki for the petitioner contended that learned Magistrate could not have passed any order for custody of the child under the said Act since the Act empowers the Magistrate to pass only interim order. Since application of wife under Section 12 of the Act was being disposed of, no such order of interim custody of the child could have been passed.

7.1 He further contended that child is residing with the father. Father is looking after the child since May 2007 in absence of the mother. Particularly, when proceedings under the Guardians and Wards Act are pending, even otherwise on facts, learned Magistrate ought not to have directed handing over custody of the child to the mother.

7.2 Counsel further submitted that petitioner is employed in a shop run by his father. He therefore, has some financial difficulties but is duty bound to pay maintenance and other charges fixed by the learned Magistrate for which some time may be granted.

8. On the other hand, learned counsel Shri Adeshra opposed the petition contending inter-alia that the order of custody is to enure only till the proceedings under the Guardians and Wards Act are concluded. No interference is therefore, called for.

8.1 He further contended that husband has not paid maintenance and other charges as directed by learned Court though he has sufficient means to do so.

9. At the outset, I may notice that Section 12 of the said Act pertains to application to the Magistrate that the aggrieved person or the protection officer may file seeking various reliefs under the Act. The Act p