November 09, 2018
The seminal issue involved in this recent case was whether an application preferred by respondent i.e. the husband under Section 21 of Domestic Violence Act was maintainable?
The entire case can be accessed here.
Here it would be relevant to reproduce the text of Section 21 which speaks about 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 arrangement for visit of such child or children by the respondent:
Provided that if the Magistrate is of the opinion that any visit of the respondents may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.”
Brief Facts of the case: In the present case, the wife had initially preferred an application under the Domestic Violence Act of 2005 for various reliefs against her husband and his family members. During the pendency of the aforesaid application, the husband filed an application under section 21 of the said Act praying that permanent custody of the minor child of the parties may be given to him and in the alternative it was prayed that visitation right may be granted to him to meet the minor child of the parties. The husband’s prayer was accepted by the Trial Court and the said order was objected by the wife on the ground that under the Domestic Violence Act, the husband could not claim any relief as the “aggrieved person” under the Act is the wife.
The High Court of Maharashtra in view of prevailing law and the settled principle that welfare of child is of paramount importance, allowed the husband’s application Section 21 of the Domestic Violence Act and granted him visitation rights to meet the minor child. The High Court made the following observations in the case:
- Scope of Section 21 of Domestic Violence Act- That on a plain reading of Section 21 and the language employed therein it can be said that Court may at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of child or children to the aggrieved person i.e. mother or the person making an application on her behalf and specify if necessary the arrangements for visit of such child or children by the father. The proviso to Section 21 stipulates that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interest of child or children, the Magistrate shall refuse to allow such visit.
- With reference to the facts of the present case, the Court noted that the child was already in custody of his mother and it was the father who has sought merely visitation right to his son which right was granted to him by the Trial Court that too for limited days.
- That in case the visitation right is not given to the petitioner, minor child would be deprived of father’s love and affection. The paramount consideration is welfare of child and that the father could not be faced to seek remedy either under the Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956, as it would lead to multiplicity of litigation.
- That the Domestic Violence Act is a self-contained code. The endeavour of the code should be to cut short the litigation and to ensure that the child gets love and affection of both parents i.e. mother and father. The approach of the Court should be practicable to work out the modalities in practical manner in evolving the process whereby the child suffers minimum trauma. The interpretation of the statute should be purposive.