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 respo