The welfare and best interest of the child is the paramount consideration in custody matters.

Janak Raj Kotwal, J.

1. This is a petition under Section 561-A of the Jammu and Kashmir Code of Criminal Procedure (for short the Code). Petitioners seek quashing of a complaint/application under Section 12(1) of the Jammu and Kashmir Protection of Women from Domestic Violence Act, 2010 (for short the Act) filed against them by the respondent in the court of Spl. Excise Mobile Magistrate, Jammu as also order dated 30.04.2015 passed by the learned Magistrate and judgment dated 22.07.2015 passed in appeal by learned Second Additional Sessions Judge, Jammu.

2. Heard. I have perused the record.

3. Respondent is the wife of Petitioner No. 1. their marriage was solemnized on 28.01.2008. Petitioners 2 and 3 are the parents of Petitioner No. 1. In her application under Section 12(1) of the Act respondent has levelled various allegations of domestic violence and harassment against the petitioners. Relevant for disposal of this petition is the allegation that on 02.01.2014 Petitioner No. 1 at the instigation of Petitioners 2 and 3 gave her physical thrashing at her matrimonial house and demanded 15 lac rupees in cash. She informed her parents who reached there and brought her to her parental house at Goura Bakshi Nagar, Jammu. Her minor child, Vihaan, was forcibly snatched from her by the petitioners, custody whereof, however, was handed over to her with the intervention of the Police. It is alleged further by the respondent that on 31.03.2014 Petitioner No. 1 took the minor away from her father on the pretext of meeting him and thereafter has forcibly retained the minor, who is just three years old. She has alleged that there is every threat to the life of the minor and that the minor is not safe in the hands of petitioners particularly when Petitioner No. 1 most of the time remains busy in his business activity.

4. Respondent in her application under Section 12(1) of the Act among others has sought relief of order for custody of the minor in terms of Section 21 of the Act. She also filed application seeking inter alia ex-parte interim direction in terms of Section 23 of the Act to the petitioners to hand over the custody of the minor to her. Learned Magistrate obtained objections from the petitioners who resisted the application inter alia alleging that respondent was leading adulterous life and that Petitioner No. 1 has already filed petition for divorce and a complaint under Section 497 Ranbir Penal code against the respondent, which are sub-judice. Petitioners in particular resisted the prayer for handing over of the custody of the minor to the respondent contending that in such circumstances welfare of the minor lies in keeping him with Petitioner No. 1(father).

5. Learned Magistrate, vide order dated 30.04.2015, while relying upon the Supreme Court judgment in Nil Rattan Kundu and Anr. v. Abhijit Kundu, 2008 (9) SCC 413, issued direction for handing over of the temporary custody of the minor to the respondent within ten days with a further direction that if minor has been admitted in a play school or in any other school, his studies shall not be interrupted and Petitioner No. 1 (father) shall continue to defray education related expenses of the minor including expenses on transportation. Aggrieved by the direction issued by learned Magistrate, Petitioner No. 1 filed appeal in terms of Section 29 of the Act before learned 2nd Additional Sessions Judge, Jammu. Learned appellate court vide its judgment dated 22.07.2015, however, upheld the order passed by learned Magistrate and dismissed the appeal.

6. Petitioners invoke inherent jurisdiction of this Court to seek quashing of the application under Section 12(1) of the Act as also the order of temporary custody passed by the learned Magistrate and judgment rendered in appeal by learned 2nd Additional Sessions Judge, firstly on merits of the case. It is contended that after fi