Case Note & Summary
The petitioners, Dr. Parijat Vinod Kanetkar (husband), his mother, father, and sister, challenged the order dated 8.10.2015 passed by the Judicial Magistrate, First Class, Amravati, granting interim custody of the minor child Ayaan to the respondent No.1 (wife/mother) under Section 21 of the Protection of Women from Domestic Violence Act, 2005, and the appellate order dated 31.8.2016 confirming it. The marriage was solemnized on 18.2.2014, and a son Ayaan was born prematurely on 25.10.2014. The respondent alleged mental harassment and that she was prevented from caring for the child. She left the matrimonial home on 17.2.2015 and went to her parental home. The child remained with the petitioners. The Magistrate granted interim custody to the mother without hearing the petitioners adequately and without considering the child's welfare. The High Court held that the welfare of the child is paramount and that the mother's right to custody is not absolute. The court found that the child had been with the father and grandparents for over a year, and there was no evidence that the child was not well cared for. The orders were quashed, and the matter was remanded for fresh consideration.
Headnote
A) Domestic Violence - Interim Custody - Section 21 Protection of Women from Domestic Violence Act, 2005 - Welfare of Child - The court held that while granting interim custody, the welfare of the child is of paramount consideration and the court must assess the child's best interests based on evidence, not merely allegations. The order granting custody to the mother was set aside as it was passed without considering the child's welfare and without giving the father an opportunity to be heard (Paras 1-28).
Issue of Consideration
Whether the interim custody of a minor child granted to the mother under Section 21 of the Protection of Women from Domestic Violence Act, 2005, was legally sustainable when the child was in the care of the father and grandparents and the mother had not seen the child for over a year.
Final Decision
The High Court allowed the petition, quashed the order dated 8.10.2015 and the appellate order dated 31.8.2016, and remanded the matter to the Judicial Magistrate for fresh consideration of interim custody in accordance with law, keeping in mind the welfare of the child.
Law Points
- Welfare of child is paramount
- interim custody order must be based on evidence and not merely allegations
- right of mother to custody is not absolute
- child's best interest is the guiding principle
Case Details
2016 LawText (BOM) (12) 95
Criminal Writ Petition No.750 of 2016
Shri Shyam Dewani for Petitioners, Smt. R.S. Sirpurkar for Respondent No.1, Shri N.R. Patil, Additional Public Prosecutor for Respondent No.2
Dr. Parijat Vinod Kanetkar, Mrs. Sandhya Vinod Kanetkar, Vinod Rajaram Kanetkar, Kum. Priyanka Vinod Kanetkar
Mrs. Malika Parijat Kanetkar, State of Maharashtra
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Nature of Litigation
Criminal writ petition challenging interim custody order under Domestic Violence Act
Remedy Sought
Quashing of interim custody order and appellate order confirming it
Filing Reason
Petitioners alleged that the interim custody order was passed without considering the welfare of the child and without proper hearing
Previous Decisions
Judicial Magistrate, First Class, Amravati granted interim custody to respondent No.1 on 8.10.2015; Additional Sessions Judge-3, Amravati confirmed it on 31.8.2016
Issues
Whether the interim custody order under Section 21 of the Domestic Violence Act was legally sustainable without considering the welfare of the child
Whether the mother's right to custody is absolute and can be enforced without assessing the child's best interests
Submissions/Arguments
Petitioners argued that the child was well cared for and that the mother had not seen the child for over a year; the order was passed without giving them proper opportunity to be heard
Respondent No.1 argued that she was the mother and had a right to custody; the child was being denied to her
Ratio Decidendi
The welfare of the child is of paramount consideration while granting interim custody under Section 21 of the Protection of Women from Domestic Violence Act, 2005. The court must assess the child's best interests based on evidence and not merely on allegations. The mother's right to custody is not absolute and must yield to the child's welfare.
Judgment Excerpts
The welfare of the child is of paramount consideration while granting interim custody under Section 21 of the Domestic Violence Act.
The mother's right to custody is not absolute and must yield to the child's welfare.
Procedural History
The respondent No.1 filed a complaint under the Domestic Violence Act, leading to proceedings CC (DV) No.98/2015. The Judicial Magistrate granted interim custody of the child to the respondent No.1 on 8.10.2015. The petitioners appealed, and the Additional Sessions Judge confirmed the order on 31.8.2016. The petitioners then filed the present writ petition.
Acts & Sections
- Protection of Women from Domestic Violence Act, 2005: 21
