The Protection of Women from Domestic Violence Act allows only for temporary custody orders, reinforcing the need to comply strictly with statutory provisions.

ORDER

This revision petition has been filed against the judgment dated

30.5.2012 in Criminal Appeal No.689 of 2010 of the Sessions Court, Alappuzha. The first respondent is the wife of the first petitioner. The wife filed M.C.No.81 of 2008 before the Chief Judicial Magistrate Court, Alappuzha under section 12 of the Protection of Women from Domestic Violence Act (for short the 'Act') seeking orders for maintenance and damages and also for custody of the elder child born in her wedlock with the first petitioner herein. She was examined as PW1. Exts.P1 and P2 were marked on her side. There was no oral or documentary evidence on the side of the revision petitioners/respondents therein. After a careful consideration of the rival contentions and also on evaluation of the evidence on record, the trial court directed the first respondent therein to pay monthly Crl.R.P.1517/12 2 maintenance @ Rs.4,000/- to the petitioner and children. The claim for damages was rejected by the trial court holding that the petitioner therein is not entitled to any amount by way of compensation. This revision petition has been filed on being aggrieved by the order of the Chief Judicial Magistrate to hand over custody of the elder child of the petitioner to the first respondent within two weeks from the date of that order. Contending that passing of such an order is beyond the scope and power under section 12 of the Act, the first petitioner herein took up the matter in appeal as Crl.Appeal No.689 of 2010. True that besides challenging the order for handing over the custody of the elder child, he has raised grievances against the fixation of monthly maintenance @ Rs.4,000/- also in the appeal. The appellate court found that the amount awarded cannot be said to be exorbitant and therefore, declined to interfere with the same. As regards the challenge against the order of custody of the elder child, his grievance is that the challenge raised in view of the specific provisions under the Act was not properly considered by the appellate court. It is submitted that the impugned order would reveal total non-application Crl.R.P.1517/12 3 of mind on that question. The order to the extent it relates to the custody of the child reads thus:-

“The order of custody of elder child also does not call for interference by this court and hence the appeal fails, deserves only a dismissal and I am doing so.”

In the impugned order, the first petitioner herein was directed to hand over the custody of the elder child within a period of two weeks from the date of that order.

2. Heard the learned counsel on both sides.

3. For a proper consideration of the issue involved in this matter, it is profitable to extract section 21 of the Act. It runs 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 Crl.R.P.1517/12 4 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.”

4. The provisions under section 21 of the Act would make it very clear that the order of custody passed by the Magistrate concerned can be only for temporary custody of any child or children to aggrieved person or the person making an application on her behalf. A scanning of the impugned order would reveal that these crucial aspects were not taken into account while passing custody order under section 21 of the Act by the learned Magistrate. Evidently, the M.C was finally disposed as per order dated 21.12.2010. No particular period was specified in the order for custody of the said child and the order insofar as custody of the elder child of the first petitioner is concerned reads thus:

“In the result, the petition is allowed directing the respondent to pay monthly maintenance of R