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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
FARJAND ALI, J.
Nidhi Bansal W/o Punit Bansal – Appellant
Versus
Punit Bansal S/o Gangadhar Bansal – Respondent
S.B. Criminal Revision Petition No. 58 of 2023
Decided on : 06-04-2023
Protection of Women from Domestic Violence Act, 2005 - Sections 12, 18, 19, 20 21 & 22 – Criminal procedure Code,1973 - Section 397 r.w. 401 – Application - Domestic Violence - Respondents stated that petitioner filed application under Section 21 of Act of 2005 with an intention to harass and humiliate him and his family members - It was further stated that he has not deserted her wife; she started living with her parents since last four years without any reasons - Further, it was stated in reply that petitioner-wife used to beat and intimidate her son and, his son was not happy with her and that’s why Master is living with him and he has been provided all facilities for his study and other welfare - Petitioner filed an application for custody of her minor child and same was dismissed.
Finding of the court :
It is not disputed that right from inception Master is living with respondents - Welfare of child can never be measured by money alone or by physical comfort. - Settled position of law is that petitioner is natural guardian of minor son and she got every right of visitation of her minor child so that he may not completely alienated from her mother - Minor child requires love, care and affection of both parents - For over all development, and welfare of child, it is always necessary that though spouses may be fighting and litigating against each other but nonetheless child should not be used as a tool for satisfaction of their respective egos - In peculiar facts and circumstance of case, order passed by learned trial Court deems to be more appropriate than to judgment passed by learned Appellate Court - It would be onerous for respondent-husband to make arrangements for two visits in a month from District, Punjab to District - Moreover, looking to fact that minor child is a school-going boy and two visitations in a month will adversely affect his studies as also, his physical and mental health, a slight relaxation is required to be made in order passed by learned trial Court and order passed by learned Appellate Court is required to be quashed and set aside.
Result : Stay application and all other pending applications, if any, are also stand disposed of
ORDER :
1. By way of filing of the instant Criminal Revision Petition under Section 397 r.w. Section 401 of the Cr.P.C. challenge has been made to the judgment dated 22.11.2022 passed by the learned Additional Sessions Judge, Sujangarh, District Churu in Criminal Appeal No.11/2022 by which the learned Judge has partly allowed the appeal filed by the respondents against the order dated 25.04.2022 passed by the learned Judicial Magistrate, Sujangarh, District Churu in Criminal Misc. Case No.218/2021 whereby the application under Section 21 of the Protection of Women From Domestic Violence Act, 2005 filed by petitioner was allowed.
2. Brief facts of the case as narrated by the petitioner are that she filed an application under Sections 12, 18, 19, 20 21 & 22 of the Protection of Women from Domestic Violence Act, 2005 (herein after referred to as ‘the Act of 2005’) and on 16.11.2021 she filed another application under Section 21 of the Act of 2005 before the Court of learned Judicial Magistrate, Sujangarh (hereinafter referred to as ‘the learned trial Court’) averring therein that from the very beginning of the marriage, she was physically and mentally harassed and humiliated by the respondent and the members of her in-laws family. She and her daughter were ousted out from her marital home and her minor son Gitish Bansal aged 9 years and 6 months at the relevant point of time was forcefully separated from her and she was not allowed to meet him. Thus, she prayed that she may be allowed to meet his son once in a week.
3. In reply thereto, the respondents stated that the petitioner filed application under Section 21 of the Act of 2005 with an intention to harass and humiliate him and his family members. It was further stated that he has not deserted her wife; she started living with her parents since last four years without any reasons. Further, it was stated in the reply that petitioner-wife used to beat and intimidate her son and, therefore, his son was not happy with her and that’s why Master Gitish is living with him and he has been provided all facilities for his study and other welfare. The petitioner filed an application under Section 97 of the Cr.P.C. for custody of her minor child and the same was dismissed. On 25.04.2022, the learned trial Court after hearing the rival parties, allowed the petitioner’s application filed under Section 12 of the Act of 2005 and ordered that she would be entitled to meet her son on 2nd and 4th Sunday of every month between 11:00 am to 04:00 pm but compliance of which was not feasible.
4. Aggrieved against the said order, the respondents filed an appeal before the Court of learned Additional Sessions Judge, Sujangarh, (herein after referred to as ‘the learned appellate Court’) which was partly allowed vide order dated 22.11.2022 and it was ordered that the petitioner would meet her son on third Saturday of every month between 11:00 am to 04:00 pm in the Conference Hall of the Court complex. He submits that the order passed in appeal is a just and reasonable one and, therefore, the same does not warrant interference by this Court.
5. Learned counsel for the petitioner submits that the learned appellate court has erred in passing the order dated 22.11.2022 by which she was allowed to meet her son in the conference hall of the Court complex, Sujangarh on 3rd Saturday of every month whereas the learned trial Court allowed the petitioner to meet her son on 2nd and 4th Sunday of every month at any public place. Learned counsel further submits that petitioner has filed an application under Sections 12, 18, 19, 20, 21 & 22 of the Act of 2005 alleging that she was maltreated by the respondents and his family members; she and her daughter were ousted from the marital home and was not allowed to meet her minor son Gitish. It has been further contended that the learned trial Court allowed the said application under Section 21 of the Act of 2005 whereby she was allowed to meet his son twice in a month i.e. on 2
Point Of Law : In the matters pertaining to custody of minor; welfare and interest of child to be given a paramount importance.
The court affirmed that domestic violence encompasses various forms of abuse, and maintenance should be awarded from the date of the application under the DV Act, not the date of the order.
The central legal point established is the interpretation and application of Section 29 and Section 23 of the Protection of Women from Domestic Violence Act, 2005.
The paramount consideration in custody disputes is the welfare of the child, favoring maternal custody for girls over seven, barring harmful circumstances.
The main legal point established in the judgment is that a widowed daughter-in-law is entitled to maintenance and other relief from her father-in-law according to the provisions of the PWDV Act.
The main legal point established in the judgment is that for Section 31(1) of the Protection of Women from Domestic Violence Act, 2005 to be attracted, there must be a breach of a specific protection....
The courts upheld the protective provisions of the Domestic Violence Act, emphasizing the aggrieved person's rights to custody and financial relief.
The main legal point established in the judgment is the court's interpretation and application of the provisions of the Protection of Women from Domestic Violence Act, 2005, to address domestic viole....
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