Tuesday, February 10, 2015

ablaa leaves 3 yr old kid goes away files 498a DV pack. Looses kid's custody ! father gets custody !


* ablaa leaves matri home and 3 year old kid , goes away to her place and files 498a + DV cocktail
* then she wakes up and files for custody of kid
* Initially at lower court father gets custody as kid is studying
* mother tries again after completion of school etc. wins case, but father gets kid back at Rajasthan HC !!
* Held "....Sec 7 of Family court act overrides Sec 21 of DV act ..." when it comes to matters of child custody

Excerpts
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"...wife, after leaving her matrimonial house and three years' old child came to Jodhpur and thereafter filed a case under Section 498A, 406, 323, 376/511, 313 and 315 IPC against the petitioner.....
"... Thereafter, the respondent-wife filed an application .. custody of child .. Protection of Women from Domestic Violence Act, 2005 ..."


IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

****************

:ORDER:

Harsh                       Vs.   Smt. Komal @ Priyanka

S.B. Criminal RevisionPetition No.721 of 2014 under Section 397/401 Cr.P.C. against the order dated 21.06.2014 passed by the learned Additional Sessions Judge, No.2, Jodhpur Metropolitan in Criminal Appeal No.57/2013 reversing the order dated 08.10.2013 passed by the learned Additional Chief Judicial Magistrate, No.4, Jodhpur in Criminal Misc. Case No.115/2013, whereby the application filed by the respondent-wife under the Protection of Women from Domestic Violence Act, 2005 seeking custody of child was dismissed.

****************


Date of Order               :::         February 4, 2015

Present

Hon'ble Mr. Justice Banwari Lal Sharma

Mr. Mahesh Bora, Sr. Advocate assisted by Mr. Nishant Bora, for the petitioner.

Mr. Varun Goyal, for the respondent.

****************

By the Court:

This revision petition has been preferred against the order dated 21.06.2014 passed by the learned Additional Sessions Judge, No.2, Jodhpur Metropolitan in Criminal Appeal No.57/2013 reversing {2} the order dated 08.10.2013 passed by the learned Additional Chief Judicial Magistrate, No.4, Jodhpur in Criminal Misc. Case No.115/2013, whereby the application filed by the respondent-wife under the Protection of Women from Domestic Violence Act, 2005 seeking custody of child was dismissed.

The brief facts of the case are that respondent- wife, after leaving her matrimonial house and three years' old child came to Jodhpur and thereafter filed a case under Section 498A, 406, 323, 376/511, 313 and 315 IPC against the petitioner. The child Krishna Parihar was residing with the petitioner-father and was studying at Udaipur. Thereafter, the respondent-wife filed an application seeking custody of the child under the provisions of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'the Act of 2005'). The said application was dismissed by the learned trial court vide order dated 08.12.2013 on the ground that the child has been studying in Udaipur and since his financial condition is better he {3} could very well take care of the child. The respondent- wife, thereafter, moved another application seeking custody of the child alleging that the circumstances have now changed and the session of the school in which he was studying has ended and hence the child can be shifted to Jodhpur and can be given admission in a good school at Jodhpur. This application was also dismissed by the learned trial court vide order dated 13.05.2014. Though the order dated 08.10.2013 stood merged in the order dated 13.05.2104, but the respondent-wife filed appeal against the order dated 08.10.2103 under Section 29 of the Act of 2005. The learned appellate court allowed the appeal vide order dated 21.06.2014 and gave the custody of the child to the respondent-wife. Hence, this revision petition.

I have heard the learned counsel for the parties and perused the material available on the record.

The main contention of the learned counsel for the petitioner is that where the Family Court has been {4} established, then under the Family Courts Act,1984 (hereinafter referred to as 'the Act of 1984'), the learned trial court or the lower appellate court has no power to give the custody of the child in the proceedings initiated under the provisions of Section 21 of the Act of 2005 as the Family Court has been conferred exclusive jurisdiction in this regard and placed reliance upon the judgment of this court in Payal Agarwal (Smt.) Vs. Kunal Agarwal [2014(1) RAF (Raj.) 415].

On the other hand, the learned counsel for the respondent supported the impugned order and submitted that the Act of 2005 being a subsequent enactment and section 21 of it having non-obstante clause, it will have overriding effect on the Act of 1984.

I have considered the rival submissions made at the Bar.

{5} Before parting with this case, I deem it proper to refer the relevant provisions of law.

Section 7 of the Act of 1984 reads as under:-

] "7. Jurisdiction.-
]
] (1) Subject to the other provisions of this Act, a Family Court
] shall-
]
] (a) have and exercise all the jurisdiction exercisable by any
] district court or any subordinate civil court under any law for
] the time being in force in respect of suits and proceedings of
] the nature referred to in the explanation; and
]
] (b) be deemed, for the purposes of exercising such jurisdiction
] under such law, to be a district court or, as the case may be,
] such subordinate civil court for the area to which the
] jurisdiction of the Family Court extends.
]
] Explanation.-The suits and proceedings referred to in this sub-
] section are suits and proceedings of the following nature,
] namely:-
]
] (a) a suit or proceeding between the parties to a marriage for
] a decree of nullity of marriage (declaring the marriage to be
] null and void or, as the case may be, annulling the marriage) or
] restitution of conjugal rights or judicial separation or
] dissolution of marriage;
]
] (b) a suit or proceeding for a declaration as to the validity
] of a marriage or as to the matrimonial status of any person;
]
] (c) a suit or proceeding between the parties to a marriage with
] respect to the property of the parties or of either of them;
]
] (d) a suit or proceeding for an order or injunction in
] circumstances arising out of a marital relationship;
]
] (e) a suit or proceeding for a declaration as to the legitimacy
] of any person;
]
] (f) a suit or proceeding for maintenance;
]
] (g) a suit or proceeding in relation to the guardianship of the
] person or the custody of, or access to, any minor.
]
] (2) Subject to the other provisions of this Act, a Family Court
] shall also have and exercise-
]
] (a) the jurisdiction exercisable by a Magistrate of the First
] Class under Chapter IX (relating to order for maintenance of
] wife, children and parents) of the Code of Criminal Procedure,
] 1973 (2 of 1974); and
]
] (b) such other jurisdiction as may be conferred on it by any
] other enactment."


Section 8 of the Act of 1984 reads as under:-

] "8. Exclusion of jurisdiction and pending proceedings.-Where a
] Family Court has been established for any area,-
]
] (a) no district court or any subordinate civil court referred
] to in sub-section (1) of section 7 shall, in relation to such
] area, have or exercise any jurisdiction in respect of any suit
] or proceeding of the nature referred to in the Explanation to
] that sub-section;
]
] (b) no magistrate shall, in relation to such area, have or
] exercise any jurisdiction or power under Chapter IX of the Code
] of Criminal Procedure, 1973 (2 of 1974);
]
] (c) every suit or proceeding of the nature referred to in the
] Explanation to sub-section (1) of section 7 and every proceeding
] under Chapter IX of the Code of Criminal Procedure, 1973 (2 of
] 1974),-
]
] (i) which is pending immediately before the establishment of
] such Family Court before any district court or subordinate court
] referred to in that sub-section or, as the case may be, before
] any magistrate under the said Code; and
]
] (ii) which would have been required to be instituted or taken
] before or by such Family Court if, before the date on which such
] suit or {7} proceeding was instituted or taken, this Act had
] come into force and such Family Court had been established"


Section 20 of the Act of 1984 reads as under:-

] "20. Act to have overriding effect.- The provisions of this Act
] shall have effect notwithstanding anything inconsistent
] therewith contained in any other law for the time being in force
] or in any instrument having effect by virtue of any law other
] than this Act."


Section 21 of the Act of 2005 reads as under:-

] "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 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."

From the perusal of the above, it reveals that in Section 21 of the Act of 2005, no independent remedy has been provided to seek custody of the minor child and jurisdiction has been conferred upon the Magistrate to grant temporary custody of the child to the aggrieved person during the course of hearing of an application for grant of protection order. Whereas, under the provisions of the Act of 1984, any person can file an independent suit or proceeding in relation to the guardianship of the person or custody of or access to any minor.

Further, from a bare perusal of section 20 of the Act of 1984, it reveals that the provisions of the Act shall have overriding effect on all other enactments in force dealing with the issue of custody of a minor.

In the case of Payal Agarwal (supra), this Court had occasion to deal with the same situation and while considering the relevant provisions of the law, it was observed as under:-

] "... ... Thus, the scope of Act of 1984 is much wider in
] comparison to Section 21 of the Act of 2005. As the non-obstante
] clause used in Section 21 of the Act of 2005 does not refer to
] any particular statute or provision or provisions of a
] particular statute and rather it {9} is general in nature, the
] Court has to determine the scope of its use very strictly. The
] law is that when a non obstante clause is used in the aforesaid
] fashion, the extent of its impact has to be found out on the
] basis of consideration of the intent and purpose of insertion of
] such a clause. When a non obstante clause is used in such a
] blanket fashion the Court has to determine the scope of its use
] very strictly. Section 8 of the Act of 1984 confers exclusive
] jurisdiction upon the Family Court in relation to the suits and
] proceedings of the nature mentioned in explanation to Section 7
] of the Act. Although, Section 21 of the Act of 2005 also
] contains the non obstante clause, but the same has limited
] application and despite being subsequent legislation it cannot
] have overriding effect on the Act of 1984. When both the
] enactments have the non obstante clause then in that case the
] proper perspective would be that one has to see the subject and
] dominant purpose for which the special enactment was made and in
] case the dominant purpose is covered by the contingencies, then
] notwithstanding that the Act might have come at a later point of
] time still the intention can be ascertained by looking to the
] objects and reasons. The Act of 1984 was specially meant for
] establishment of special Courts so that matters referred in
] explanation to Section 7 of the Act can be dealt by the special
] Courts established for that purpose whereas the object of
] enactment of the Act of 2005 was to protect the woman from being
] victim of the domestic violence and to prevent to the occurrence
] of domestic violence in the society."

The Coordinate Bench of this court, thereafter, while observing that since Family Court has already been established, held the proceedings initiated under Section 21 of the Act of 2005 as not maintainable and declared the impugned orders as null and void.

In view of the above, the order dated 08.10.2013 passed by the learned trial court and reversed by the appellate court vide order dated 21.06.2014 are declared to be null and void and the application filed by the respondent-wife for custody of the child under the provisions of the Act of 2005 is dismissed as not maintainable.

The revision petition stands disposed of accordingly.

Record of the courts below be sent back with a copy of this order for necessary action.

[Banwari Lal Sharma],J.


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Criminal Revision Petition No.721/2014

Harsh Vs. Smt. Komal @ Priyanka

04.02.2015

Hon'ble Mr. Justice Banwari Lal Sharma

Mr. Mahesh Bora, Sr. Advocate assisted by Mr. Nishant Bora, for the petitioner.
Mr. Varun Goyal, for the respondent.


The order was pronounced today in open court. The revision petition stands disposed of accordingly. (see separate order) By Order [Court Master] C.No.17


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Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist