The power of the Magistrate to grant interim custody under Section 21 of the DV Act is independent of the provisions of the Guardians and Wards Act.

JUDGMENT :

1. This original petition has been filed against the order in C.M.P.No.670/2020 in Crl.A.No.171/2020 of the Sessions Court, Kozhikode.

2. The petitioner filed M.C.No.43/2019 before the Judicial First Class Magistrate Court-II, Thamarassery under Section 12 of Protection of Women from Domestic Violence Act, 2005 (in short 'the DV Act'). In that petition, she had filed C.M.P.No.3794/2019 under Section 21 read with Section 23(2) of the Act, seeking for interim custody of the minor child. By Ext.P4 order, the learned Magistrate dismissed the petition. Against which the petitioner filed Crl.A.No.171/2020 before the District and Sessions Court, Kozhikode along with a delay condonation petition C.M.P.No.670/2020 for condoning the delay of 72 days. By Ext.P7 order, the learned Sessions Judge dismissed the delay condonation petition and consequently, the appeal also dismissed. Aggrieved by the same, the petitioner came up before this Court by filing this original petition.

3. The learned counsel for the petitioner submitted that the petitioner had seen the child in July 2019. Thereafter, she had no occasion to see the child.

4. The learned counsel for the respondent would contend that she left the company of the husband and the child and is living with another man.

5. At the time of argument, it is conceded by both sides that there is no delay in view of the directions of the Apex Court as well as this Court due to Covid 19 pandemic, since limitation admittedly had been stated from 12.04.2020.

6. Head both sides.

7. The finding of the learned Sessions Judge is that the Family Court is the competent authority to decide the question of interim custody of the child. It is further found that since there is a Forum to get remedy in considering the interim custody of the child, the delay in filing the appeal is not condoned. Consequently appeal also dismissed.

8. The provisions under Section 21 of the DV Act for seeking interim custody and the power of the Magistrate to grant interim custody provided under Section 21 is independent of the provisions of the Guardians and Wards Act. It is a remedy provided under the DV Act to the aggrieved person who approaches the Magistrate seeking various relieves provided under that Statute.

9. As per the dictum laid down in Dhavai Rajendrabhai Soni vs. Bhavani Dhavalbhai Soni and others (2012 KHC 2303) by the Gujrat High Court, even during the pendency of the proceedings under Guardians and Wards Act, the learned Magistrate can pass temporary orders for temporary custody under Section 21 of the DV Act. So, the impugned order passed by the Sessions Judge finding that the Family Court is the proper Forum for granting interim custody is illegal and perverse. Hence, it is liable to be set aside.

In the result, this original petition is allowed and the Sessions Court, Kozhikode is directed to consider Crl.A.No.171/2020 on merit. The learned counsel for the petitioner pressed for interim custody of the child in view of the fact that the petitioner is the mother of the child and has not seen the child since 29.07.2019. Parties can agitate their claim with regard to the interim custody before the Sessions Court.