The welfare of the child is the paramount consideration in granting visitation rights to the father under the Protection of Women from Domestic Violence Act, 2005.

Rajiv Sharma, J.

1. This petition is instituted against the impugned order dated 23.3.2016 rendered by learned Sessions Judge, Una, H.P. in Criminal Appeal Nos. 70/2015 and 71/2015.

2. The key facts necessary for the adjudication of the petition are that the marriage between the parties was solemnized as per Hindu rites and customs and out of the wedlock, a male child was born. The respondent filed an application under Sections 12, 17, 18, 19, 20, 22 and 23 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the “Act” for brevity sake) against the petitioner and his mother, Rupindera Devi. The application was contested by the petitioner. During the pendency of the aforesaid application, the petitioner also filed an application seeking permission to meet his minor son, Ayudeep, who was in the custody of respondent. The application was contested by the respondent. The learned Judicial Magistrate, 1st Class allowed the application vide order dated 26.10.2015. Feeling aggrieved with the order dated, 26.10.2015, the respondent filed an appeal (Cr. Appeal No. 70/2015), whereas the petitioner also filed an appeal (Cr. Appeal No. 71/2015). The learned Sessions Judge while allowing the appeal preferred by the respondent dismissed the appeal preferred by the petitioner vide order dated 23.3.2016. Hence, this petition.

3. Mr. Subhash Sharma, learned Advocate appearing for the petitioner, has vehemently argued that the appeal was maintainable under Section 21 of the Act.

4. Mr. Pankaj Chauhan, learned Advocate appearing for the respondent, has supported the impugned order dated 23.3.2016 passed by the learned Sessions Judge.

5. I have heard learned counsel for the parties and have also gone through the orders dated 26.10.2015 and 23.3.2016 carefully.

6. Section 2(d) of the Act defines “custody order” an order granted in terms of Section 21. Section 2(a) defines “aggrieved person” to mean any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. Section 2(q) defines “respondent” to mean any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act. Section 21 reads as under:-

“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.”

7. Section 21 starts with non obstante clause. It is evident from the plain language employed in Section 21 that the Court 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, i.e. mother 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 i.e. father can also be ordered. The proviso attached to Section 21 stipulates that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.

8. In the instant case, custody of the child is already with her mother. The respondent has not asked for custody of the child for the simple reason that the child is already in her custody. It is the respondent, i.e. father, who has sought merely visitation rights to see his son, which right was granted to him by the learned Judicial Magistrate, 1st Class vide order dated 26.10.2015, that too, on limited days, i.e. 2nd and 4th Saturday of each month between 3.00 P.M.