Permanent custody cannot be granted under Section 21 of the Protection of Women from Domestic Violence Act; only temporary custody is permissible.

ORDER

This revision petition is directed against the order in Crl. Appeal No. 575/2011 of the Court of Sessions Judge, Palakkad whereby the order in Crl. M.P. No. 3577/2011 in M.C. No. 27/11 was confirmed. M.C. No. 27/11 has been filed by the first respondent herein under Section 12 of the Protection of Women from Domestic Violence Act (for short 'the Act'). The issue involved in this case pertains to the custody of the younger daughter born in her wedlock with the revision petitioner herein. In view of the order I propose to pass in this revision petition, I do not think it necessary to deal with the facts and contentions, in detail. A scanning of the impugned order would reveal that it was passed mainly taking into account the failure on the part of the revision petitioner herein to produce the child before the court below pursuant to an order for production. The court below also took note of the fact that on the previous posting also there was no representation. Under such circumstances, the learned Magistrate passed the order directing the revision petitioner to give custody of the child Habsa Varghese, the younger daughter of the couple, to the petitioner within two weeks from the date of the order. Feeling aggrieved by the same the matter was taken up to an appeal by the revision petitioner herein as Criminal Appeal No. 575/2011. Evidently, the revision petitioner herein attempted to explain the reasons that incapacitated him from appearing before court. However, the appellate court also was not satisfied with such explanations and reasons and on finding no reason to interfere with the order passed by the learned Magistrate the appellate court dismissed the appeal. It is in the said circumstances that the revision petitioner herein has come up in revision.

2. The revision petitioner herein raised bifold contentions. Firstly, it is contended that his non appearance before the court was not wilful or deliberate and therefore the non-production of the child also ought not have been taken as a wilful action on the part of the revision petitioner. Secondly, it is contended that in terms of the provisions under Section 21 of the Act, it will be beyond the scope of the jurisdiction of the learned Magistrate to grant permanent custody of a child by invoking the limited power conferred thereunder. There can be no two views with respect to the said position. Even a bare perusal of Section 21 of the Act would reveal that the nature of custody can only be pro-tempore and there cannot be a permanent custody order under Section 21 of the Act. Section 21 of the Act is worthy to be extracted. It reads thus:-

“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”.

The order passed by the learned Magistrate regarding the custody of the child Habsa Varghese reads thus:

“The counter petitioner is hereby directed to give custody of the child Habsa Varghese, who is the younger daughter of the petitioner, to the petitioner, within two weeks from the date of this order.”

(emphasis added)

Now, bearing in mind the provisions under Section 21 of the Act the sustainability of the impugned orders has to be examined. Though a time limit was fixed for the purpose of giving custody of the child Habsa Varghese to the petitioner/first respondent herein the nature of the order would undoubtedly suggest that this is not a temporary order whilst it is an order for giving permanent custody of the