Case Note & Summary
The revision arose from concurrent orders granting maintenance and custody under the Protection of Women from Domestic Violence Act, 2005. The respondent-wife had filed an application before the Judicial Magistrate, First Class, Jalgaon, seeking reliefs including custody of minor children. The Magistrate directed the applicant-husband to pay maintenance and to place the minor children, Kalyani and Kunal, in the respondent's custody during summer vacations until they attained majority, and to facilitate meetings during other holidays. The maintenance order was not contested, but the applicant challenged the custody directions as being beyond the Magistrate's jurisdiction under Section 21 of the Act. The Sessions Court confirmed the order, leading to the present revision. Before the High Court, the applicant's counsel argued that Section 21 only permits 'temporary custody' during pendency of the main application, and cannot authorize permanent custody extending beyond its disposal. The respondent's counsel contended that a liberal interpretation should be adopted, citing Supreme Court judgments in Reema Aggarwal and Sandhya Manoj Wankhade to argue that 'temporary' could encompass permanent relief. The State supported the impugned order. The High Court examined the language of Section 21, noting that it explicitly uses 'temporary custody' and that the dictionary meaning of 'temporary' is limited duration. Referring to the decision in Dr. Parijat Vinod Kanetkar, the court observed that the power under Section 21 is temporary and coterminous with the main application, beginning with its filing and ending with its disposal. The expression 'at any stage of hearing' does not include the stage of judgment, as hearing concludes before judgment. The court distinguished the cited Supreme Court cases as dealing with different statutory contexts. The order directing custody until majority was permanent in nature and thus exceeded the Magistrate's jurisdiction under Section 21. Accordingly, the revision was partly allowed: the maintenance order remained undisturbed, but the custody directions were quashed.
Headnote
A) Family Law - Domestic Violence - Custody of Children - Protection of Women from Domestic Violence Act, 2005, Section 21 - The Magistrate has power to grant only temporary custody of children during pendency of the main application under Section 12 and not a permanent order. The word 'temporary' means lasting or intended to last only for a limited time. Once the main application is disposed, the temporary custody order ceases. The direction to give custody during summer vacations until children attain majority was permanent in nature and beyond jurisdiction. Held, the order of custody was set aside as it exceeded the scope of Section 21. (Paras 5-15)
Issue of Consideration
Whether the words 'temporary custody' used in Section 21 of the Protection of Women from Domestic Violence Act, 2005, refer to grant of custody only during pendency of the application under Section 12, or can be granted permanently covering the period after disposal as well.
Final Decision
The revision was partly allowed. The maintenance order was not disturbed. The custody directions in the impugned orders were quashed as being beyond the jurisdiction of the Magistrate under Section 21 of the Protection of Women from Domestic Violence Act, 2005.
Law Points
- Interpretation of 'temporary custody' under Section 21 of the Protection of Women from Domestic Violence Act
- 2005 is limited to pendency of main application
- cannot grant permanent custody beyond disposal
- expression 'at any stage of hearing' does not include stage of judgment.
