ISSUE:

The primary legal issue in this case is whether the applicant/wife is entitled to temporary custody of her minor female child, who was below five years of age at the relevant time, under Section 21 of the Domestic Violence Act (D.V. Act).

RULE:

The relevant legal provisions are:

1. Section 21 of the Domestic Violence Act- This section empowers the Magistrate to grant temporary custody of children to the aggrieved person (usually the mother) during the pendency of proceedings under the Act.
2. Section 12 of the D.V. Act- Provides for the application by an aggrieved person seeking various reliefs under the Act.
3. Sections 17 and 19 of the D.V. Act- Deal with the right to reside in a shared household and the power to pass residence orders, respectively.
4. Section 29 of the D.V. Act- Deals with the right to appeal against an order passed by the Magistrate.
5. Judicial Precedents and Principles- Courts have generally favoured the mother for custody of children below five years of age unless there are compelling reasons to decide otherwise, focusing on the best interest and welfare of the child.

APPLICATION:

1. Facts Considered by Lower Courts-

• The Magistrate initially rejected the wife’s application for temporary custody based on an interview with the child.
• The Sessions Judge upheld the Magistrate’s decision, dismissing the wife’s appeal for temporary custody.

2. Supreme Court’s Considerations-

• The Supreme Court noted the narrow and limited scope of interference under the revisional jurisdiction.
• It highlighted the inherent limitations on exercising power under the revisional jurisdiction.
• The Court recognized that the wife’s allegations of mental and physical harassment by the husband were not doubted at the preliminary stage.
• The Court emphasized the necessity to consider the ordinary comfort and interest of the child, which generally favours the mother for children below five years of age.

3. Observations and Errors by Lower Courts-

• The lower courts had rejected temporary custody based on a brief interview with the child.
• The appellate Court’s order was found to be cryptic and passed in a casual manner without considering the detailed circumstances.
• The Supreme Court noted that the child, when brought from the mother’s custody, expressed a desire to live with the mother, indicating a preference that aligns with the child’s best interests.

4. Current Custody Status-

• Despite the rejection of her application by the lower courts, the wife currently had custody of the child, and the Supreme Court found it appropriate to continue this arrangement.

CONCLUSION:

The criminal revision application filed by the wife was allowed. The impugned orders dated 13/07/2021 by the Sessions Court and 18/02/2021 by the Magistrate were quashed and set aside. The wife was granted temporary custody of the child under Section 21 of the D.V. Act. The father was granted sufficient access to the child, with specific terms and conditions to be decided by the Magistrate after hearing both sides.

By-

AARCHI TIBDEWAL