CRL.M.C. 1755/2016

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Decided on: 28^th March, 2017

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CRL.M.C. 1755/2016 and Crl. M.A. No. 7418/2016

AMIT KUMAR & ORS

..... Petitioners

Represented by:

Mr. Prashant Mendiratta and

Mr. Anirudh K. Mudgal,

Advocates.

versus

CHARU MAKIN

..... Respondent

Represented by:

Ms. Shradha Karol, Amicus

Curiae with respondent in

person.

CORAM:

HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

1.

The respondent filed a complaint case being CC No. 217/4/2014 under

Section 12 of the Protection of Women from Domestic Violence Act, 2005

(in short ‘PWDV Act’) before the learned Metropolitan Magistrate inter alia

seeking restraint against the petitioner from approaching or visiting the

house of the respondent or her workplace and restraining him from

committing any act of domestic violence. Prohibition was also sought

against the petitioner from having any access to the minor child or coming to

school of the child or to any other place where the minor child went for her

extracurricular activity and also prohibiting the petitioner from removing the

minor child from the custody of the respondent. In view of the interim relief

sought vide order dated 19^th November, 2014 the learned Metropolitan

Magistrate restrained the petitioner from interfering with the custody of the

minor daughter till the next date of hearing.

CRL.M.C. 1755/2016

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2.

Served with the interim order passed by the learned Metropolitan

Magistrate, the petitioner filed an application before the learned Trial Court

for modification of the order dated 19^th November, 2014 wherein on 26^th

November, 2014 an interim consent order was passed. As an interim

measure the parties agreed that the minor child shall go to the place of the

mother of the respondent on every Saturday till the next date from 10.00 AM

to 10.00 AM Sunday and the petitioner shall be with the daughter for 24

hours.

3.

The interim application filed by the respondent under Section 23 of

the PWDV Act and that of the petitioner seeking setting aside of the ex-parte

order dated 19^th November, 2014 under Section 25 of the PWDV Act was

decided by the learned Metropolitan Magistrate vide order dated 9^th

November, 2015. Vide order dated 9^th November, 2015 the learned

Metropolitan Magistrate noting that the minor child was aged six years and

was in the custody of the respondent, restrained the petitioner from removing

the minor child from the custody of the respondent or from having any

access to the minor child or visiting the child in school or at any of the place

where she went for her extra-curricular activity. It was further directed that

the petitioner shall have visitation rights twice a week on every Saturday and

Sunday between 5.00 PM to 9.00 PM at the place mutually decided by the

parties.

4.

The petitioner thereafter filed an application under Section 25 of the

PWDV Act seeking modification of the order dated 9^th November, 2015

which was decided by the learned Metropolitan Magistrate vide order dated

2^nd January, 2016 with rest of the conditions remaining the same, the

visitation rights were extended from 10.00 AM to 5.00 PM.

CRL.M.C. 1755/2016

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5.

Aggrieved by the order dated 2^nd January, 2016 the petitioner filed an

appeal before the learned Additional Sessions Judge which was dismissed

vide the impugned order dated 8^th March, 2016. Hence the present petition.

6.

Learned counsel for the petitioner submits that the petitioner being the

father of the minor child is entitled to keep the child in custody even during

night hours for the proper upbringing of the child so that the child can enjoy

the company of the father as well.

7.

Learned Amicus Curiae for the respondent points out that the

petitioner has concealed material facts before this Court and that he has

shifted to Dubai without informing the Courts. Thus there