This petition is filed seeking for a writ of certiorari to quash

Sections 21 and 31 of the Protection of Women from Domestic Violence

Act, 2005 (for short "the DV Act") as being ultra vires the Constitution.

The learned counsel for the petitioner submits that the provisions

of Section 21 and 31 of the DV Act are unconstitutional. So far as Section

21 of the DV Act is concerned, the same would refer to the custody of the

child being given by the orders of the Magistrate. Section 21 of the DV

Act which reads as follows:-

"21. 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:

Provided 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."

3.

It is further pleaded that in terms of Section 12 of the Guardian and

Wards Act, 1890 (for short "the Guardians and Wards Act") the provisions

are quite different. The same reads as follows:-

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"12. Power to make interlocutory order for production of

minor and interim protection of person and property.

1. The Court may direct that the person, if any, having the

custody of the minor, shall produce him or cause him to be

produced at such place and time and before such person as it

appoints, and may make such order for the temporary custody

and protection of the person or property of the minor as it

thinks proper.

2. If the minor is a female who ought not to be compelled to

appear in public, the direction under sub-section (1) for her

production shall require her to be produced in accordance

with the customs and manners of the country.

3. Nothing in this section shall authorise-

(a) the Court to place a female minor in the temporary custody

of a person claiming to be her guardian on the ground of his

being her husband, unless she is already in his custody with

the consent of her parents, if any, or

(b) any person to whom the temporary custody and protection

of the property of a minor is entrusted to dispossess otherwise

than by due course of law any person in possession of any of

the property."

4.

Therefore, the Guardian and Wards Act would apply for a manner

in which an order could be passed. That recording of evidence is

necessary before an order could be passed by the Court. That a child is

required to be produced at such place and time and before such person as

the Court deems appropriate for the purposes of granting temporary

custody. None of this is present in Section 21 of the DV Act. Therefore,

this provision is ultra vires the Constitution.

5.

Reference is also made to Section 31 of the DV Act with regard to

penalty for breach of protection order by the respondent. That in the

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absence of any opportunity being given, a person can be punished with

imprisonment of either description for a term which may extend to one

year, or with fine which may extend to Rs.20,000/-, or with both.

6.

However, on considering the contentions, we do not find that any

of the pleas of the petitioner could be accepted.

7.

It is apposite to mention herein the Statements of Objects and

Reasons of the DV Act, which reads as follows:

"Statement of Objects and Reasons.—Domestic violence is

undoubtedly a human right issue and serious deterrent to

development. The Vienna Accord of 1994 and the Beijing

Declaration and the Platform for Action (1995) have

acknowledged this. The United Nations Committee on

Convention on Elimination of All Forms of Discrimination

Against Women (CEDAW) in its General Recommendation No.

XII (1989) has recommended that State parties should act to

protect women against violence of any kind especially that

occurring