Point of Law: DV Act – Domestic voilence - It is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt.

JUDGMENT :

SOPHY THOMAS, J.

1. The short question that arises for consideration is, whether the Family Court can proceed with the petition for guardianship and custody of the minor child, when there is an interim order for custody passed by the Magistrate under Section 23(2) of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred as the ‘D.V. Act’).

2. The petitioner is the father of the minor children Bevin Cesil and Bryan Cesil and the respondent is their mother. The marriage between the petitioner and respondent was solemnised on 11.04.2007 and they were living together with their children at his house. During Onam vacation, in September 2019, the respondent went to her paternal house along with the children and never returned thereafter. She filed M.C. No. 100 of 2019 before the Judicial First Class Magistrate Court-V, Thiruvananthapuram and obtained protection order against the petitioner in which he was restrained from taking custody of the minor children. Meanwhile, she filed O.P. No. 374 of 2020 seeking a decree of divorce, and the petitioner filed O.P. (G&W) No. 2305 of 2020, for getting permanent custody of the children. During counseling, the respondent produced the order of the Magistrate, to show that the petitioner was restrained from taking custody of the children and so, according to her he cannot seek custody of the children before the Family Court. Apprehending that he may not get custody of the children because of Ext.P1 order of the Magistrate, he approached this Court with this petition for a clarification that, pendency of Ext.P1 order will not be a bar for granting custody of the children as per Ext.P3 O.P. filed by him.

3. Sri. Umasankar, learned counsel appearing for the respondent vehemently opposed the petition saying that, without challenging Ext.P1 order of the Magistrate, the petitioner cannot seek custody of the children before the family court.

4. For answering that challenge, we have to find out the impact of an interim order passed by a Magistrate under Section 23(2) of the D.V. Act. Section 12 of the said Act reads thus:

“An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under that Act.”

5. Section 19 of the D.V. Act deals with residence orders. Section 20 deals with monetary reliefs, Section 21 deals with custody orders and Section 22 deals with compensation orders. Section 21 of the D.V. Act reads as follows:

“21. Custody Orders - Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent.”

6. Section 23 of the D.V. Act deals with the power of the Magistrate to grant interim and ex-parte orders. It says that, in any proceedings before him under this Act, the Magistrate may pass such interim order as he deems just and proper. If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex-parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.

7. So, obviously, the Magistrate has got the power to pass orders for temporary custody of children under Section 21 of the Act and an interim or ex-parte order also can be passed for custody, under the said Section, on disclosure of a prima facie case, on the basis of an affidavit filed by the aggrieved perso