Case Note & Summary
The applicant wife and the non-applicant husband, both engineers, were married in 2015 and had a daughter born on 23 May 2016. After matrimonial discord, the wife alleged domestic violence and filed an application under the Protection of Women from Domestic Violence Act, 2005 seeking multiple reliefs, including temporary custody of the child who was then about four years and two months old. The husband had taken the child to his brother’s house in Akola during the lockdown. The wife claimed she was denied access to the child. The Judicial Magistrate First Class rejected her interim application for temporary custody under Section 21 of the DV Act by order dated 18 February 2021 (mentioned as 2020 in the text but later corrected to 2021). The wife’s appeal under Section 29 of the DV Act was dismissed by the Additional Sessions Judge on 13 July 2021. Aggrieved, she filed the present criminal revision before the High Court. The husband raised a preliminary objection that the impugned order was interlocutory and barred under Section 397(2) CrPC. The High Court held that the interim order merged into the appellate order under Section 29, thus becoming revisable under Sections 397(1) and 401 CrPC. Turning to merits, the Court examined the legal principles governing custody of minor children. It noted that the welfare of the child is the paramount consideration, and the proviso to Section 6 of the Hindu Minority and Guardianship Act, 1956 states that custody of a child who has not completed five years shall ordinarily be with the mother. The child was below five years when the application was filed and had just crossed five years by the time of the hearing, but the Court held that no mathematical calculation can defeat the statutory provision. The father, being employed in a multinational company at Thane and requiring travel, left the child with his brother and mother at Akola, who had also filed a civil suit restraining the wife from entering their house. The Court found that the father failed to rebut the presumption in favor of the mother and that the mother, a qualified engineer residing with her parents, was capable of caring for the child. Observing that the father’s circumstances did not justify departure from the statutory preference, the High Court allowed the revision, set aside the orders of the courts below, and granted temporary custody of the minor daughter to the applicant wife pending final disposal of the main application by the Magistrate. The Magistrate was directed to proceed expeditiously.
Headnote
A) Criminal Procedure – Revision – Maintainability – Code of Criminal Procedure, 1973, Sections 397(1), 401 – Interim order passed by Magistrate under Section 21 of the Protection of Women from Domestic Violence Act, 2005 merged into appellate order under Section 29 of that Act, thereby transforming its character and making it revisable by the High Court; preliminary objection that the order was interlocutory and barred by Section 397(2) CrPC rejected. (Paras 7-9) B) Family and Personal Laws – Custody of Minor Child – Welfare Principle – Protection of Women from Domestic Violence Act, 2005, Section 21; Hindu Minority and Guardianship Act, 1956, Section 6 – Temporary custody of minor below five years: while welfare is paramount, Court is not bound by mere legal rights of parents but must consider ordinary comfort and interest of the child; statutory proviso that custody of child under five shall ordinarily be with the mother places onus on father to show why this should not be the case. (Paras 10-13) C) Family and Personal Laws – Custody of Child Below Five Years – Statutory Preference – Hindu Minority and Guardianship Act, 1956, Section 6 proviso – Proviso to Section 6 mandates that custody of a minor who has not completed five years shall ordinarily be with the mother; mere fact that child crossed five years during pendency does not defeat statutory intent; father, being in permanent job at Thane with travel obligations and having left child with relatives at Akola, failed to rebut the presumption in favor of mother; temporary custody granted to mother. (Paras 14-17)
Issue of Consideration
Whether the revision application under Section 397 CrPC is maintainable against an interlocutory order passed under Section 21 of the DV Act, and whether the applicant wife is entitled to temporary custody of her minor female child aged about four years and two months
Final Decision
The High Court allowed the revision, set aside the orders of the Magistrate and the Sessions Court, and granted temporary custody of the minor female child to the applicant wife. The Magistrate was directed to proceed with the main application under the DV Act expeditiously.
Law Points
- welfare of child is paramount consideration
- proviso to Section 6 of Hindu Minority and Guardianship Act 1956 creates strong presumption that custody of child under five years shall ordinarily be with mother
- onus on father to rebut
- parens patriae jurisdiction of court
- order under Section 21 of DV Act even if interlocutory when merged into appellate order under Section 29 becomes revisable under CrPC
- rights of parents subordinate to child's interest
