The best interest of the child is paramount in custody matters, and a child's expressed wishes must be considered, especially when the child is of sufficient age to form a rational opinion.

JUDGMENT :

SASHIKANTA MISHRA, J.

The petitioner questions the correctness of the order dated 11.07.2022 passed by learned Additional Sessions Judge, Jharsuguda in Criminal Revision Case No.17 of 2018 (treated as Appeal), whereby the order passed by learned S.D.J.M., Jharsuguda on 04.06.2018 in CMC No.79 of 2018 under Section 21 of PREVENTION OF WOMEN FROM DOMESTIC VIOLENCE ACT , 2005 (in short, the ‘PWDV Act’) was set aside. The present opposite party- had filed an application under Section 21 of the PWDV Act claiming temporary custody of her child residing with his father. While learned S.D.J.M. rejected the prayer, learned Additional Sessions Judge set aside the order of learned S.D.J.M. by directing the petitioner- husband to deliver custody of the child to his wife within 30 days.

2. The petitioner and the opposite party are husband and wife having married on 28.11.2010. A male child named, Akhil Singh was born to them. The opposite party-wife being allegedly tortured by her husband and in- laws went to stay in her parental house along with her minor son on 01.01.2018. Her husband came and met her in her parental home and assured not to ill-treat her in future but forcibly took the child with him to his house. As such, the wife filed an application under Section 21 of the PWDV Act before learned S.D.J.M., Jharsuguda (CMC No.79 of 2018). After hearing both parties, learned S.D.J.M. took note of the age of the child at the relevant time, i.e.,4 years and 8 months but held that he had been residing with his father and grant parents. Learned S.D.J.M., further held that even though the mother is the natural guardian of the child yet it would not be proper to disturb the healthy psychological environment of the child by sending him to a new place for a temporary period. It was further observed that Section 21 of the PWDV Act only speaks about temporary custody and in case the mother is interested for custody of her child, she can file application before the competent Civil Court under the Guardians and Wards Act, 1890 or any other law. Learned S.D.J.M. therefore, found no reason to grant temporary custody to the opposite party-wife and thus, rejected the petition.

3. The matter was carried in appeal to the court of Session. Learned Additional Sessions Judge after analyzing the facts of the case held that Section 21 provides for grant of custody to the aggrieved person or the person making an application on her behalf. In the instant case, the husband tortured his wife physically and mentally and drove her out along with her minor child. Since the child is aged below five years, the custody of the child should be with the mother. Learned Additional Sessions Judge further held that there is no evidence on record to prove that the child would not be safe if he is kept in custody of the mother. As per Section 21 , the appellant-wife is entitled to the custody of her child and the respondent-husband is entitled only to visiting rights. According to learned Additional Sessions Judge, learned S.D.J.M., should have taken into consideration the provisions prescribed under other law (Hindu Minority and Guardianship Act, 1956) and therefore, such order is palpably wrong. It was also held that the analysis of factual aspects made by the lower court is beyond the facts and evidence available in the case record and that the order was passed without recording any evidence. On such findings, learned Additional Sessions Judge allowed the appeal by directing the husband to deliver custody of the minor child to the wife within 30 days.

4. The said order is impugned in the present revision.

5. Heard Mr. P.K.