1. By this applica(cid:26)on under Sec(cid:26)on 482 of the Code of Criminal Procedure, 1973, the applicant seeks to challenge the order dated 3rd
February 2018 passed by the Sessions Court, Mumbai rejec(cid:26)ng the applicant's appeal filed under Sec(cid:26)on 29 of the Protec(cid:26)on of Women from
Domes(cid:26)c Violence Act, 2005 (`D.V.Act') which was filed challenging order dated 5th January 2018 passed by Metropolitan Magistrate, 31st
Court, Vikroli, Mumbai.
2. The relevant facts for determining the issues raised in this application are as follows :
(a)Â The marriage between the applicant and respondent no.1 was solemnized on 7th May 2008. Out of the wedlock child Vihan was born on
14th September 2012;
(b)Â On 17th July 2017 the applicant filed an applica(cid:26)on before the learned Metropolitan Magistrate under Sec(cid:26)on 12 of DV Act seeking relief
under Sections 18, 19, 20, 21 and 22 of the DV Act. The said application was filed against respondent no.1 and his mother. The proceedings were
numbered as CC.122/DV/2017;
(c)Â The applicant le(cid:66) her matrimonial home on 2nd December 2017 with child Vihan and made separate residen(cid:26)al arrangement along with
her parents;
(d)Â The applicant addressed a le(cid:67)er dated 6th December 2017 to the school authori(cid:26)es of Vihan. The respondent no.1 preferred applica(cid:26)on
vide ExhibitÂ9 dated 20th December 2017 seeking access of Vihan;
(e)Â The applicant filed her affidavitÂinÂreply before the learned Magistrate opposing the said application on the ground of maintainability;
(f)Â By order dated 5th January 2018, learned Metropolitan Magistrate, 31st Court, Vikroli, allowed the applica(cid:26)on filed by respondent no.1
and he was allowed to exercise his visita(cid:26)on rights and keep custody of his child for 48 hours for twice in a month i.e. on every second and
fourth Friday from 6 pm to Sunday 6 pm i.e. on alternate week ends;
(g)Â The applicant challenged the aforesaid order by preferring appeal before the Sessions Court. The applicant also preferred an applica(cid:26)on
for stay of the order passed by the learned Magistrate. The Sessions Court by order dated 12th January 2018 granted interim stay to the order of
the learned Magistrate pending hearing of the appeal. The respondent no.1 filed his affidavitÂinÂreply on 18th January 2018. The Sessions
Judge by order dated 3rd February 2018 dismissed Appeal No.30 of 2018 filed by applicant and upheld the order dated 5th January 2018 passed
by learned Magistrate.
3. Learned counsel for applicant submi(cid:67)ed that the impugned orders are contrary to the provisions of law. The applicant was constrained to
prefer an applica(cid:26)on under the DV Act seeking reliefs u/s 18 19, 20, 21 and 22 of the DV Act on 17th July 2017. The said applica(cid:26)on was
preferred on account of immense verbal, emo(cid:26)onal, physical, economical violence at the hands of respondents. The respondent no.1 did not
file his wri(cid:67)en statement denying any charges against him on several dates and had threatened the applicant to withdraw the complaint. The
applicant was constrained to lodge the NC complaints with police. Due to severe apprehension and scary atmosphere at the matrimonial
house, the applicant had no alterna(cid:26)ve but to leave her matrimonial home on 2nd December 2017 with child Vihan and made separate
residen(cid:26)al arrangement along with her parents. It is further submi(cid:67)ed that the applicant had to address le(cid:67)er dated 6th December 2017 to the
school authori(cid:26)es of Vihan as the respondent no.1 had threatened kidnapping of child, which is reflected in the NC dated 28th November
2017. Without filing wri(cid:67)en statement and a(cid:66)er a period of about five months of filing the complaint under DV Act, the respondent no.1 had
preferred an applica(cid:26)on for urgent interim relief vide ExhibitÂ9 on 20th December 2017. The applicant filed her affidavitÂinÂreply opposing
the applica(cid:26)on on the ground of maintainability. It is submi(cid:67)ed that the learned Magistrate vide order dated 5th January 2018 erroneously
allowed the application preferred by respondent no.1 and granted relief to respondent no.1. The Sessions Court has also committed an error in
rejec(cid:26)ng the appeal preferred by the applicant. The learned Sessions Judge has passed the order in viola(cid:26)on of principles of natural jus(cid:26)ce.
The applicant was not given an opportunity to represent her by advocate and compelled to argue in person. The Sessions Court also refused to
permit the applicant to file the rejoinder. The learned Sessions Judge failed to appreciate that Sec(cid:26)on 21 applies only when gran(cid:26)ng custody
order during the hearing. The Courts below failed to appreciate that Sec(cid:26)on 21 does not permit the husband to move for relief under the DV
Act independent of the applica(cid:26)on of the aggrieved person. The learned Sessions Judge failed to appreciate that the DV Act does not
contemplate any person besides wife filing an applica(cid:26)on for custody. The learned Judge failed to appreciate that as per Sec(cid:26)on 2(a) of DV Act
aggrieved person means any woman who is or who has been in a domes(cid:26)c rela(cid:26)onship with the respondent and who alleges to have been
subjected to any act of domes(cid:26)c violence by the respondent and the provision under Sec(cid:26)on 21 is not applicable for any person other than the
aggrieved person. The Courts below have failed to appreciate the scope of Sec(cid:26)on 21 of DV Act and the scope of visita(cid:26)on rights. The visita(cid:26)on
rights can only be for some hours in the Court premises or at some convenient place in presence of mother of the child, who is aggrieved
person, as defined in the DV Act. The Sessions Judge has failed to take into considera(cid:26)on the judgments relied upon by the applicant. The
child was disturbed a(cid:66)er learning about the impugned orders passed by the Courts below. The preliminary objec(cid:26)on with regards to the
maintainability of the applica(cid:26)on preferred by respondent no.1 has not been considered in proper perspec(cid:26)ve by the subordinate Courts. The
applica(cid:26)on was preferred without showing the provision under which respondent no.1 is en(cid:26)tled to file the applica(cid:26)on. Sec(cid:26)on 21 clearly
expresses that the temporary custody of a child or children can be given to the aggrieved person or the person making an applica(cid:26)on on her
behalf by making necessary arrangement for visit of such child or children by the respondent. The applica(cid:26)on preferred by respondent no.1
suffers from grave error. The husband cannot file such an applica(cid:26)on seeking interim custody of the child and the said right is given under the
special enactment to the aggrieved person. The aggrieved person as contemplated under the DV Act would mean any woman who is or has
been in a domes(cid:26)c rela(cid:26)onship with the respondent and who alleges to have been subjected to any act of domes(cid:26)c violence of the
respondent and hence the said applica(cid:26)on was not maintainable in law. It is only when the aggrieved person prefers applica(cid:26)on for custody
and the same is being adjudicated, the Court can consider grant of visita(cid:26)on right of husband. Applicant has filed addi(cid:26)onal affidavit dated 3rd
May 2018 and brought on record certain subsequent facts. It is stated that applicant had never tried to keep vihan away from respondent no.1
and made efforts to give access even during pendency of application. However, Vihan is not willing to go overnight with the respondent no.1.
4. Learned counsel for the applicant relied upon several decisions which are as follows :
(i) Â Board of Trustees of Port of Bombay Vs. Dilipkumar Raghvendranath Nadkarni and others 1983Â1ÂSCCÂ124;
(ii)Â Prakashkumar @ Prakash Bhutto Vs. State of Gujarat 2005Â2Â SCCÂ409;
(iii)Â Pallavi Resources Limited Vs. Protos Engineering Co. Pvt.Ltd. 2010Â5ÂSCCÂ196;
(iv)Â Judgment passed by Kerala High Court in the case of M.J.Shibin v/s K.C.Diji and others in MAT Appeal No.60/2015;
(v)Â Cotton Corporation of India Ltd. Vs.United Industrial Bank Ltd. And others (AIR 1983 SC 1272);
(vi)Â Payal Agarwal Vs. Kunal Agarwal, the decision of the High Court of Rajasthan 2014ÂCr.L.J.Â4281;
(vii)Â Decision of the Karnataka High Court in the case of Mrs.Girija Patel Vs. Vijay Rao delivered in Criminal Revision Petition No.1062 of 2014;
(viii)Â Prakash Kumar Singhee Vs Amrapali Singhee delivered by this Court in Writ Petition No.3553 of 2018 dtd.4.5.2018;
(ix)Â Dennision Paulraj and others Vs. Union of India 2009ÂDJLS (Madras)Â818;
(x)Â Director, CBI and another Vs. D.P.Singh (2010)1ÂSCCÂ647;
(xi)Â Bharat Alumium Company vs. Kaisar Aluminium Technical Service Inc. (2012)9ÂSCCÂ552;
 (xii) Roxana Sharma Vs Arun Sharma AIRÂ2015ÂSCÂ2232;
(xiii)Â Firm Amarnath Bashshwar Dass Vs Tekchand AIRÂ1972ÂSCÂ 1548.
5. Learned counsel for respondent no.1 submi(cid:67)ed that the complaint under the DV Act was filed by the applicant as a means to pressurize
the respondent no.1. During pendency of the said complaint the par(cid:26)es were referred to media(cid:26)on on 18th September 2017. On 5th October
2017 media(cid:26)on proceedings took place. Apprehensive of the fact that the applicant may act on the threat to leave the house with Vihan, the
respondent no.1 had addressed the le(cid:67)er to the Senior Inspector of Park Site Police Sta(cid:26)on narra(cid:26)ng the state of events. On 23rd October 2017
media(cid:26)on proceedings took place. On 3rd November 2017 media(cid:26)on proceedings were conducted again and the mediator filed a failure
report sta(cid:26)ng that media(cid:26)on between both the par(cid:26)es had failed and the ma(cid:67)er was adjourned to 2nd December 2017. On 1st December 2017
brothers of applicant had arrived at their house and began packing certain belongings. On 2nd December 2017 the ma(cid:67)er was listed before the
Court of learned Magistrate. However, the Court was not presiding. The respondent no.1 no(cid:26)ced that the applicant is loading her belongings in
to a car. Being aggrieved by the development, the respondent no.1 went to Park Site Police Sta(cid:26)on to report the incident. The applicant was
present at the police sta(cid:26)on along with her mother and filed NC complaint against respondent no.1. Police refused to entertain the complaint
of respondent no.1 and hence he was constrained to file a written complaint with the Assistant Police Inspector and the DCP. The applicant left
the matrimonial home on 2nd December 2017 with Vihan. The respondent no.1 made repeated a(cid:67)empts to reach out to applicant and Vihan
through phone and e mails asking her whereabouts and where she has taken Vihan and why she was not responding. The respondent no.1
visited school where he was informed that Vihan had not a(cid:67)ended school. The respondent no.1 then addressed an eÂmail to the school
authori(cid:26)es informing them that applicant and Vihan have le(cid:66) the house without informing him. On 6th December 2017 applicant had
addressed a le(cid:67)er to the school that due to marital discord the applicant and respondent no.1 do not live together and that the respondent
no.1 should not be granted access of Vihan without her permission. She also forwarded a le(cid:67)er to school bus authori(cid:26)es on 12th December
2017 informing them that Vihan should not be dropped at any loca(cid:26)on other than the one provided by applicant. She also stated that the
respondent no.1 should not be allowed to take Vihan any where from the school directly without her prior permission. The respondent no.1
met the school authori(cid:26)es and expressed his concerns. The school assured that they will coÂoperate and all communica(cid:26)ons regarding Vihan
will also be sent to him. As the applicant was not responding and also the police were not suppor(cid:26)ve, the respondent no.1 filed an applica(cid:26)on
for child access u/s 21 of DV Act on 20th December 2017. The ma(cid:67)er was heard by the Trial Court and by order dated 5th January 2018, the
learned Magistrate partly allowed the application allowing access of Vihan to respondent no.1.
6. It is further submi(cid:67)ed that the applicant then preferred an appeal before the Sessions Court which was heard at length. Both the sides
were heard and case laws were tendered by both the par(cid:26)es. The Sessions Court was pleased to dismiss the appeal and upheld the legality
and validity of order dated 5th January 2018 passed by the learned Magistrate. It is further submi(cid:67)ed that in spite of the aforesaid orders, the
a(cid:67)empts to contact applicant to avail the access were fu(cid:26)le. The respondent no.1 then visited Park Site Police Sta(cid:26)on and requested the
Protection Officer to facilitate the access. On 15th February 2018, the police report was filed by the Protection Officer stating that applicant had
refused to grant access as she has filed quashing pe(cid:26)(cid:26)on in the High Court challenging the orders passed by the Courts below. It is submi(cid:67)ed
that there is no reason to interfere in the orders passed by the learned Magistrate and the Sessions Court.
7. It is submi(cid:67)ed that the respondent no.1 is deeply concerned about his son's well being and safety. He had never stayed away from him or
the house (cid:26)ll 2nd December 2017. The applicant had forcibly and willfully kept Vihan away from him. The applicant is ac(cid:26)ng against Vihan's
interest. It is in the interest of child's welfare that he received company of both the parents. However, the applicant has taken unilateral
decision of removing him from the company of his father. The respondent no.1 being the natural guardian cannot be denied the access to his
child and the said fact has been considered by the Courts below. The child needs the company and influence of both his parents. However, the
applicant is not considering child's needs and is misusing her posi(cid:26)on as mother to forcibly keep him away from the respondent no.1. The
impugned order passed by the learned Magistrate grants him over night visita(cid:26)on rights for 48 hours i.e. twice in a month as provided for in
the said order. It is submi(cid:67)ed that the respondent no.1 had specifically prayed for an equal and fair access of his child and has also prayed for
an over night week end access for his child. The respondent no.1 denies the allega(cid:26)ons that the applicant had suffered any verbal, emo(cid:26)onal,
physical or economical violence or immense cruelty at his hands or his mother's hands. Since the child was forcefully and illegally removed
from the company of respondent no.1, he was constrained to prefer an applica(cid:26)on u/s 21 of the DV Act which provides powers to Court to
grant visita(cid:26)on rights to the father. It is submi(cid:67)ed that the welfare of the child is paramount. It is established by Child Rights Founda(cid:26)on that
equal and substan(cid:26)al access should be granted to both the parents. The applicant is trying to deprive over night access of the child and to the
father which clearly shows that she is using the child as a tool and thus compromising the growth and well being of the child. As per Sec(cid:26)on 21
of DV Act, learned Magistrate has exercised his power to grant visita(cid:26)on rights to the respondent no.1 as per the prayer made in the
applica(cid:26)on. The applicant is confusing the two concepts of custody and visita(cid:26)on rights. The Trial Court had allowed over night access to
respondent no.1 to exercise his visita(cid:26)on rights. Hence, the order is proper and legal. Learned counsel for applicant relied upon the guidelines
circulated by Child Right Founda(cid:26)on which has been accepted by the Government of Maharashtra and circulated to all the Courts across the
State of Maharashtra. He placed reliance on clauses 28 and 31 of the said guidelines which are relevant for deciding access and visita(cid:26)on rights.
It is submi(cid:67)ed that the child was in exclusive custody of the applicant from 2nd December 2017 and in these circumstances the applica(cid:26)on
preferred by the respondent no.1 u/s 21 of DV Act was maintainable. It is further submi(cid:67)ed that applicant had appeared in person before the
Sessions Court and has argued the ma(cid:67)er. She has also relied upon the decisions in support of her arguments and therefore in the
circumstances it cannot be said that the principle of natural jus(cid:26)ce has been violated by not giving opportunity to her advocate to advance
submissions before the Sessions Court. It is submi(cid:67)ed that if the interpreta(cid:26)on given by the applicant about maintainability of the applica(cid:26)on
preferred by the respondent no.1 is accepted, it would defeat the whole purpose of the statute. The intent of the legislature and the aim and
object of the act has to be taken into considera(cid:26)on. Thus, even if the applicant (wife) had not preferred any applica(cid:26)on u/s 21 of DV Act, the
husband can prefer such an applica(cid:26)on seeking access to the child. It is submi(cid:67)ed that the applicant had taken the child in her custody and in
the circumstances she would not have preferred any applica(cid:26)on u/s 21 of DV Act and the respondent no.1 in such a situa(cid:26)on would be
rendered without any remedy. It is further submi(cid:67)ed that apart from the aforesaid interpreta(cid:26)on of law, it has to be noted that the applicant
in her applica(cid:26)on u/s 12 of DV Act had prayed for the custody of the child i.e. sought reliefs u/s 21 of DV Act. Even in such circumstances the
applicant was empowered to prefer the application for access.
8. Learned counsel for the respondent no.1 relied upon the following decisions :
(i)Â Decision in the case of Smt.Huidrom Ningol Ongbi Vs Mr.Inaobi Singh Maibam delivered by High Court of Manipur at Imphal in
Cri.Revn.Petition No.16/2015;
(ii)Â Sandeep Kumar Thakur Vs Madhubala decided by High Court of Himachal Pradesh at Shimla 2016ÂSCC OnlineÂHPÂ3354;
(iii)Â Deepti Bhandari Vs Nitin Bhandari and another decided by Supreme Court in Special Leave Petition (Cri) No.5213 of 2010;
 (iv) Mrs.Mary Pinto Vs Cedric Pinto and another decided by this Court in Criminal Writ Petition No.353 of 2008;
(v)Â Ruchi Majoo Vs Sanjiv Majoo delivered in Civil Appeal No.4435 of 2011;
(vi)Â Decision of Supreme Court delivered in Civil Appeal No.4983 of 2016;
(vii)Â Dr.Parijat Kanetkar Vs Mallika Kanetkar 2017(2)ÂMh.L.J.Â218
9. The primary issue in these proceedings is whether an applica(cid:26)on preferred by respondent no.1 u/s 21 of DV Act was maintainable. The
learned Magistrate has entertained the said applica(cid:26)on and allowed the access of the child to respondent no.1. The said order was upheld by
the Sessions Court. The learned Magistrate has adverted to the child access and custody guidelines along with paren(cid:26)ng plan placed before
the Court by the respondent no.1. The factual matrix indicate that the applicant and the respondent no.1 are highly educated persons. The
marriage was registered between them on 7th May 2008. It was a love marriage. Child Vihan was born on 14th September 2012. The applicant
had preferred the complaint under the DV Act on 17th July 2017. In the said complaint she has narrated the purported acts amoun(cid:26)ng to
domes(cid:26)c violence. During the pendency of said complaint, the applicant had le(cid:66) the matrimonial home on 2nd December 2017 with Vihan.
According to applicant, on account of the atmosphere she was constrained to leave the matrimonial home along with the child and had to
make residen(cid:26)al arrangement with her parents. The respondent no.1 had preferred the applica(cid:26)on u/s 21 of DV Act on 20th December 2017.
According to him, since the applicant had le(cid:66) the matrimonial home along with Vihan and the whereabouts were not known and in spite of
a(cid:67)empts being made to contract the applicant and his son, he was constrained to prefer such an applica(cid:26)on before the Court. The applica(cid:26)on
was opposed by applicant (wife) by filing reply. The learned Magistrate by order dated 5th January 2018 partly allowed the said applica(cid:26)on by
gran(cid:26)ng visita(cid:26)on rights to respondent no.1. It was directed that the respondent no.1 is allowed to exercise his visita(cid:26)on rights and keep
custody of his child Vihan for 48 hours for twice in a month i.e. on every second and fourth Friday from 6 pm to Sunday 6 pm i.e. on the
alternate week ends. It was further directed that the applicant shall arrange the talk between Vihan and respondent no.1 on video call on each
Thursday between 7 pm to 8 pm. The applicant was also directed to disclose her residen(cid:26)al address and submit copy of said address to Senior
Police Inspector, Park Site Police Sta(cid:26)on and Protec(cid:26)on Officer. Any change in the address be in(cid:26)mated. She shall not change admission of
Vihan from the school without consent of respondent no.1. The respondent no.1 shall not approach the child while he travels in school bus.
Senior PI Park Site Police Sta(cid:26)on shall appoint Police Sta(cid:26)on Officer as Protec(cid:26)on Officer, who shall keep the record of visita(cid:26)on by
maintaining separate diary and to submit a report to the Court once in two months. Apparently the said order was challenged by preferring
appeal before the Sessions Court. The respondent no.1 had opposed the reliefs prayed in the said appeal by filing reply. The learned Sessions
Judge by order dated 12th January 2018 granted interim stay to the opera(cid:26)on of the order dated 5th January 2018 passed by the Trial Court. The
appeal was finally heard. The applicant had appeared in person and advanced her arguments. She also relied upon the decisions of the Court in
support of her submissions. The learned Sessions Judge has observed that the proceedings under the Act were filed in JulyÂ2017. The mother
and father were residing together (cid:26)ll 1st December 2017. Their son Vihan was living with them (cid:26)ll that (cid:26)me. The mother along with son le(cid:66)
the house. The father had only occasion to see his son once on 27th December 2017 in the Court of learned Magistrate. The Court also referred
to the guidelines in respect of child access and custody along with paren(cid:26)ng plan. In clauseÂ31 it is provided that the Courts are under
obliga(cid:26)on to consider that the child shall spend equal and substan(cid:26)al (cid:26)me with each parent. In making the paren(cid:26)ng order, the Court must
consider that the child must spend equal (cid:26)me or if not substan(cid:26)al and significant (cid:26)me with each parent. The substan(cid:26)al and significant (cid:26)me
means essen(cid:26)al, week days and over night week ends and holidays which allow the parents to be involved in the child's daily rou(cid:26)ne as well
as occasions and events that are of par(cid:26)cular significance to the child or the parents to maintain or consolidate a secure a(cid:67)achment with the
parent whose behaviour is oriented only to visi(cid:26)ng rather than care giving. The Court further observed that the said guidelines further
provides that the child has a right to spend (cid:26)me on regular basis with both parents and other people significant to their care, well fare and
development. The over night access at home of non custodial parent should be encouraged at an early stage so that the children have a close
and con(cid:26)nuing rela(cid:26)onship and get love and affec(cid:26)on of not only the parents but also of grandparents and other family members. On the
strength of the guidelines, the visita(cid:26)on rights of either of the par(cid:26)es to mean father or the mother to have access to their child cannot be
denied. The applica(cid:26)on made therefore is thus tenable. It manifest that mother has excluded father from enjoying access to son. It transpires
that a(cid:67)endance of the child in school has decreased. Obviously it would affect on smooth and well development of the child. It can be against
the interest of the child. The Court therea(cid:66)er observed that in the instant case, the custody of the child is already with his mother. The father
has merely sought visita(cid:26)on rights to see his son which right has been granted for limited days and limited period as apparent from the
impugned order. In case the visita(cid:26)on right is not given to the father, the minor child would be deprived of father's love and affec(cid:26)on. The
paramount considera(cid:26)on is welfare of child. Irrespec(cid:26)ve of the facts for the well being and smooth development of the child, the father is
en(cid:26)tled for visita(cid:26)on rights. The father made an applica(cid:26)on for grant of permission to have an equal and fair access to him. The prayer made
by the father is just and proper and the same cannot be interfered with. It was further observed that the learned Magistrate has rightly done
so. While passing the impugned order, learned Magistrate took all precau(cid:26)on. The order is reasoned and well thought. Thus, no flaw can be
found in the impugned order. For the said reasons and discussion, the learned Sessions Judge was pleased to dismiss the appeal preferred by
the applicant.
10. It would be relevant to extract Section 21 of DV Act. The said provision reads as follows :
“21. Custody orders. Notwithstanding anything contained in any other law for the (cid:26)me being in force, the Magistrate may, at any stage of
hearing of the applica(cid:26)on for protec(cid:26)on 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 applica(cid:26)on on her behalf and specify, if necessary, the arrangement for visit of such child or
children by the respondent :
Provided that if the Magistrate is of the opinion that any visit of the respondents may be harmful to the interests of the child or children, the
Magistrate shall refuse to allow such visit.â€
According to learned counsel for applicant on reading the said provision it is apparent that the Magistrate at any stage of hearing of the
applica(cid:26)on for protec(cid:26)on 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 applica(cid:26)on 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 interest of the child or
children, the Magistrate shall refuse to allow such visit. It is contended that the husband has no right to independently prefer an applica(cid:26)on
for custody orders as contemplated u/s 21 of DV Act. The applica(cid:26)on can be preferred by the aggrieved person or any person on her behalf
during the pendency of her applica(cid:26)on under for any reliefs under the DV Act. The respondent no.1 was therefore not empowered to prefer
such an applica(cid:26)on. It is submi(cid:67)ed that for seeking custody of the child, the respondent no.1 had other remedies available in law under the
provisions of the DV Act. It is submi(cid:67)ed that the respondent no.1 could have approached the Court under Sec(cid:26)on 26 of the Hindu Marriage Act
seeking custody of the child. The remedy lies before other forum and the applica(cid:26)on before the Trial Court in the present case was not
maintainable. The Trial Court had passed the order without jurisdic(cid:26)on. On perusal of the orders passed by the Courts below and child access
and custody guidelines which were referred to by the said Courts, and for the reasons to be stated herein, I do not find any reason to interfere
in the orders under challenge. The learned Magistrate and the learned Sessions Judge has passed the well reasoned order which do not
require any interference.
11. The factual matrix of the present case indicate that the child was in custody of mother (applicant) from 2nd December 2017. In the
complaint under the DV Act preferred on 17th July 2017, the same indicate that the applicant had preferred the said complaint u/s 18, 19, 20,
21, 22 and 23 of DV Act. The form/complaint reflects that the applicant had sought relief under the various provisions including Sec(cid:26)on 21
which relates to custody orders. It is the conten(cid:26)on of the applicant that unless the applicant prefers any applica(cid:26)on under Sec(cid:26)on 21 for
custody order, the access cannot be granted to the husband on an independent applica(cid:26)on preferred by him. In the present case according to
the applicant, she had not preferred such applica(cid:26)on and therefore the respondent no.1 ought not to have preferred the applica(cid:26)on seeking
access and the same was not maintainable in law. When there is no provision under the law, the Court cannot infer existence of such provision
and entertain the applica(cid:26)on. The scope and object of the DV Act is required to be taken into considera(cid:26)on. It is contended that since Sec(cid:26)on
21 does not provide any right to the husband to prefer such applica(cid:26)on, and since the legislature has not provided such right to the husband,
except as s(cid:26)pulated in Sec(cid:26)on 21 of DV Act, the Court ought not to have entertained the applica(cid:26)on and granted relief as prayed by
respondent no.1. If the interpreta(cid:26)on advanced by the applicant is accepted, it would defeat the whole purpose of the statute. It is well
se(cid:67)led principle of interpreta(cid:26)on that Court must start with the presump(cid:26)on that legislature did not make a mistake and it must interpret so
as to carry out the obvious inten(cid:26)on of legislature and that it must not correct or make up a deficiency nor the Court read into a provision any
word which is not there par(cid:26)cularly when literal reading does not lead to an intelligible result. The said proposi(cid:26)on of law has been laid down
in the case of Rajender Prashad Vs. Darshana Devi (2001)7ÂSCCÂ6.9 In the case of Nathidevi Vs. Radhadevi Gupta (2005)2ÂSCCÂ271 ,it was
observed that in interpre(cid:26)ng a statute, Court must, if the words are clear, plain, unambiguous and reasonable insuscep(cid:26)ble to only one
meaning, give to the words that meaning irrespective of the consequences.
12. In the present case, it is the grievance of the applicant that on 2nd December, 2017, on account of the circumstances referred to by her,
the applicant had le(cid:66) the matrimonial home along with the child. The reliefs sought in the applica(cid:26)on enumerates the reliefs under Sec(cid:26)ons
18, 19, 20, 21, 22 and 23 of the said Act. The complaint also men(cid:26)ons that requisite orders under Sec(cid:26)on 21 with regards to the custody of the
child are also sought. The said aspect is apparent from paragraph 5 of the complaint. The intent of the legislature as expressed under the
proviso has to be taken into account keeping in view the aim and object of the Act. The applica(cid:26)on under Sec(cid:26)on 21 of the Act by the
respondent could be made in the factual matrix of the present case. In the case of Smt. Hudidrom Ningol Ongbi (supra) relied upon by the
counsel for the respondent the High Court of Manipur has observed that where there is no obscurity or ambiguity and inten(cid:26)on of legislature
is clearly conveyed, there is no scope for the Court to innovate or to take upon its task of amending or altering a statutory provisions which
proposi(cid:26)on of law has been laid down in several cases including in a case of Ins(cid:26)tute of Chartered Accounts of India Vs. Price Water House and
another â€" (1997)6ÂSCCÂ312. In that case it has been observed that the judges should not proclaim that they are playing the role of law
makers merely for an exhibi(cid:26)on of judicial valour. They should remember that there is a line though thin which separates adjudica(cid:26)on from
legisla(cid:26)on. That line should not be crossed. This can be vouchsafed by an alert recogni(cid:26)on of the necessity not to cross it and ins(cid:26)nc(cid:26)ve as
well as trained reluctance to do so. However, where there appears to be obscurity, ambiguity, what the Court is supposed to do has been dealt
with in the case of Grid Corpora(cid:26)on of Orissa Limited Vs. And others. Eastern Ma(cid:67)ers Ferros Allous and others reported in (2011)11ÂSCCÂ334
wherein it has been observed that the golden rule of interpreta(cid:26)on is that the words of the statute have to be read and understood in their
natural, ordinary and popular sense. Where however, the words used are capable of bearing two or more construc(cid:26)ons, it is necessary to
adopt purposive construc(cid:26)on, to iden(cid:26)fy the construc(cid:26)on to be preferred by posing the following ques(cid:26)ons. (i) what is the purpose for which
the provision is made; (ii) what was the posi(cid:26)on before making the provision; (iii) whether any of the construc(cid:26)ons proposed would lead to an
absurd result or would render any part of the provisions redundant; (iv) which of the interpreta(cid:26)ons will advance the object of the provision.
The answer to these ques(cid:26)ons will enable the Court to iden(cid:26)fy the purposive interpreta(cid:26)on to be preferred while excluding others. Such an
exercise is involving ascertainment of the object of the provision and choosing the interpreta(cid:26)on that will advance the object of the provision
can be undertaken only where the language of the provision is capable of more than one construc(cid:26)on. It is further observed that Sec(cid:26)on 21 is
amenable to two interpreta(cid:26)ons as is being highlighted by the par(cid:26)es, in such event only that interpreta(cid:26)on which advanced the object of the
provision can be accepted. It is worthwhile to note that the Act enacted to prevent the occurrence of domes(cid:26)c violence in the society and
keeping in view that several protec(cid:26)on orders including the safety of the aggrieved person and the child have been contemplated to be
passed. Therefore, the cause of the safety of the aggrieved person or the child is always warrants to be taken into account in interpre(cid:26)ng the
provision. In such situa(cid:26)on if the interpreta(cid:26)on given on behalf of the wife aggrieved par(cid:26)es accepted it will render the provision incomplete
as in case where wife â€" aggrieved party seeks custody of the child, if the child is in custody of the husband and an order of custody is passed
in favour of the aggrieved party, visita(cid:26)on right can be granted to the husband. But if custody lies with the wife â€" aggrieved party, than the
husband will have no remedy of visita(cid:26)on right if the interpreta(cid:26)on as contemplated by the wife â€" aggrieved party is given effect to and
thereby it can easily be said that interpreta(cid:26)on given by the aggrieved party â€" wife will never advance the cause of the child. On the other
hand, if it is held that the husband, in absence of any applica(cid:26)on for grant of custody can maintain his applica(cid:26)on for visita(cid:26)on right will
advance the object of the provision as in case of child being in custody of the husband, applica(cid:26)on for custody can be filed by the wife wherein
the husband can have visita(cid:26)on right if order is of custody of child passed in favour of the aggrieved party. In other situa(cid:26)on, when the custody
of the child lies with the wife, there would be no occasion for the wife for filing an applica(cid:26)on for custody. In that situa(cid:26)on, husband will have
remedy to have visitation right by filing application to that effect. The said interpretation and observations can be applied in the present case.
As indicated above, the child was in custody of the applicant from 2nd December 2017. In these circumstances, there was no occasion for the
applicant to prefer any application seeking relief under Section 21 of the Act.
13. Child access and custody guidelines along with paren(cid:26)ng plan were accepted by the various High Courts and communica(cid:26)on was sent to
the subordinates Courts to enforce the recommenda(cid:26)ons in their respec(cid:26)ve divisions. The guardian judges of the family Courts in the State of
Maharashtra have been pleased to approve the paren(cid:26)ng plan as the best document to be modified as per the facts and circumstances of the
case, the Hon'ble Chief Jus(cid:26)ce was pleased to direct circula(cid:26)on of the child access and custody guidelines among all the Hon'ble Judges of the
Bombay High Court. The Hon'ble guardian judges of the Family Courts in the State of Maharashtra have been pleased to direct the circulation of
the guidelines among the Family Court judges and the marriage councilors in the Family Courts across the State of Maharashtra. The interim
child visita(cid:26)on guidelines indicates that the basic principles of the Court are to ensure that the child/children yet to spent equal or substan(cid:26)al
significant (cid:26)me to be showered with love and affec(cid:26)on from both the parents irrespec(cid:26)ve of parents conflict. Efforts should be made by
par(cid:26)es and if necessary, Court should direct par(cid:26)es to mutually agree upon a visita(cid:26)on schedule to be drawn up along with the marriage
councilor within a maximum period of 60 days pending finaliza(cid:26)on of mutual final overnight visita(cid:26)on agreement and interim access has to be
worked out immediately. The guidelines assume that each parent has con(cid:26)nuous presence in the children's life. In the event that a parent has
at limited or no contact with his or her children and wishes to be reintroduce into the children's life, it is upto the parents to agree on the
means by which this is to be accomplished if the parents are unable to agree the first alterna(cid:26)ve shall be to mediate the conflict. If media(cid:26)on
is unsuccessful, it shall be the responsibility of the Court to adopt a schedule. In the present case, the applicant has not asked for custody of
child since the child is already in her custody. The paramount considera(cid:26)on shall be welfare of the child. The endeavor of the Court should be
to ensure that child gets love and affec(cid:26)on of both the parents. The smooth and proper development of the child requires affec(cid:26)on of both
parents. ClauseÂ31 of the guidelines deals with overnight access. It is provided that the Courts shall consider that the child shall spend equal
and substan(cid:26)ve (cid:26)me with each parents. In while making paren(cid:26)ng order the Court has to consider that the child must spend equal (cid:26)me or if
not equal then substan(cid:26)al and significant (cid:26)me with each parent. Substan(cid:26)al and significant (cid:26)me has been defined to mean essen(cid:26)ally,
weekdays and overnight weekends and holidays which allow the parent to be involved in the child's daily rou(cid:26)ne as well as occasions and
events that are of par(cid:26)cular significance to the child or the parents to maintain or consolidated a secure a(cid:67)achment with a parent whose
behavior is oriented only to visi(cid:26)ng rather than care giving. It further provides that the children have right to know and be cared for by both
their parents regardless of whether their parents are married, separated, divorced, have never married or have never leave together and
children have a right to spend (cid:26)me on a regular basis with both parents and other people significant to their case, welfare and development
including grandparents and family members. It is further provided that overnight access at home of the non custodial parents should be
encouraged at an early stage, so that the children have a closed and con(cid:26)nuing rela(cid:26)onships and get love and affec(cid:26)on of not only parents but
also a grandparents and other immediate family members like uncles, aunts, cousins etc. Both the Courts below had taken into considera(cid:26)on
the aforesaid aspects. The Trial Court has also observed that the applicant has not disclosed her residen(cid:26)al address where she resides along
with the child. In reply, filed vide ExhibitÂ10, the address has been given that she had resided in rental flat at Nahar Complex. By issuing
various le(cid:67)ers to school it has been confirmed that the applicant has excluded the father of the child from enjoying access and company of the
child. The absence of child in school has been increased. Obviously the behavior of pe(cid:26)(cid:26)oner would affect a smooth and well development of
child. The Respondent No.1 is therefore en(cid:26)tled for visita(cid:26)on right and it is appropriate to 48 hours visita(cid:26)on rights on second and fourth
Saturday and half of longer holidays be availed by the respondent No.1. The Trial Court has therefore taken into considera(cid:26)on the factual
aspects and has passed the impugned order taking the broad view of the ma(cid:67)er. During pendency of this applica(cid:26)on this Court by consent of
both par(cid:26)es as interim measure had passed an order on 3rd May 2018 sta(cid:26)ng that every Sunday between 9 am to 9 pm, custody of child shall
remain with respondent no.1.
14. Learned counsel for the applicant had relied upon the decision in the case of Board of Trustees of the Port of Bombay (supra), in support
of his submission that there is viola(cid:26)on of principle of natural jus(cid:26)ce. It was contended that the applicant was required to argue the appeal in
person and the appellate Court deprive the applicant to contest her appeal with the help of the advocate. The applicant was compelled to
argue the ma(cid:67)er in person. The applica(cid:26)on involved several legal issues and thus the applicant has to proceed with hearing of appeal without
the assistance of the advocate which has resulted in viola(cid:26)on of principle of nature jus(cid:26)ce. In the said decision the Government employee
requested the Inquiry Officer to permit him to appear through a legal prac(cid:26)(cid:26)oner and even though trained public prosecutor was appointed as
presen(cid:26)ng officer, the request was turned down. When the ma(cid:67)er had reached the Court, it was held that the inquiry was in breach of the
principle of natural jus(cid:26)ce. The order of the Domes(cid:26)c Tribunal was to be sustained on the submission that SubÂRule 5 of Rule 15 of the Central
Civil Services Rules that the Government servant may present his case with the assistance of any Government servant approved by the
disciplinary authority may not engage legal prac(cid:26)(cid:26)oner for the purpose of unless the person nominated by the disciplinary authority as
aforesaid is a legal prac(cid:26)(cid:26)oner or unless disciplinary authority having regard to the circumstance of the case so permits. The ra(cid:26)o in the said
decision is not applicable in the present case. On perusal of the order passed by the Appellate Court, it is apparent that the applicant had
argued the ma(cid:67)er in person. It can also be seen that the applicant was able to put forth her case and has even relied upon the judicial
pronouncement in support of her submission advanced before the said Court. By referring to decision in the case of Prakash Kumar @ Prakash
Bhu(cid:67)o (supra) learned counsel drew my a(cid:67)en(cid:26)on to the observa(cid:26)ons made in paragraphs 20, 21, 22, 30 31 and 32 of the said decision. It was
observed that it is trite law that the jurisdic(cid:26)on of the Court to interpret a statute can be invoked only in case of ambiguity. The Court cannot
enlarge scope of legisla(cid:26)on or inten(cid:26)on when the language of the statute is plain and unambiguous. Narrow and paden(cid:26)c construc(cid:26)ons may
not always be given effect to. Court should avoid a construc(cid:26)on which would reduce the legisla(cid:26)on to fu(cid:26)lity. It is well se(cid:67)led that the every
statute is to be interpreted without any violence to its language. It is also trite that when an expression is capable of more than one meaning,
the Court would a(cid:67)empt to resolve ambiguity in the manner consistent with the purpose of the provision having regard to the consequence of
the alterna(cid:26)ve construc(cid:26)ons. The Apex Court had made reference to several other decisions wherein it was observed that the Court's
jurisdic(cid:26)on to interpret the statute can be invoked when the same is ambigious. It cannot be revived and recast legisla(cid:26)on. It is also necessary
to determine that there exist a presumption that the legislature has not used any superfluous words. It is well settled that the real intention of
the legisla(cid:26)on must be gathered from the language used. It may be true that use of expression shall or may is not decisive for arriving at a
finding as to whether the statute is directory or mandatory. But the inten(cid:26)on of the legislature must be found out from the scheme of the Act.
It is also equally well se(cid:67)led that when nega(cid:26)ve words are used the Court will presume that the inten(cid:26)on of legislature was that the
provisions are mandatory in character. Even in rela(cid:26)on to the penal statute any narrow and pedan(cid:26)c, literal and lexical construc(cid:26)on may not
be always given effect to. The law would have to be interpreted having regard subject ma(cid:67)er of the offence and object of the law it seeks to
achieve. The purpose of the law is not to allow the offender to sneak out the message of law. It is also observed that no part of the statute and
no word of statute can be construed in isola(cid:26)on. It is trite that the Statute or Rules made thereunder should be read as a whole and one
provision should be construed with reference to the other provisions to make the provision consistent with the object sought to be achieved.
The statute is best interpreted when we know why it was enacted. Reference was also made to the decision in the case of Anwar Hassan Khan
Vs. Mohd. Saffi (2001)8ÂSCCÂ540 wherein it was observed that it is cardinal principal of construc(cid:26)on of a statute that the effort should be
made in construing its provisions in avoiding conflict and adop(cid:26)ng a harmonious construc(cid:26)on. The statute and rules made thereunder should
be read as a whole and one provision should be construed with reference to other provisions to make the provision consistent with the object
sought to be achieved. While applying the said principles enunciated in the aforesaid decision, I do not find that both the Courts have
commi(cid:67)ed any patent error of law in passing the impugned orders. The reasons s(cid:26)pulated in the said orders are in accordance with the
aforesaid principles. It would be relevant to note that in the same decision in paragraph 14 it has been observed that more stringent the law,
the less is discre(cid:26)on of the Court. Stringent laws are made for the purpose of achieving its objec(cid:26)ve. This being the intentment of the
legislature the duty of the Court is to see that the inten(cid:26)on of the legislature is not frustrated. If there is any doubt or ambiguity in the statute,
the rule of purposive construc(cid:26)on should be taken recourse to achieve to its objec(cid:26)ves. Similar view was expressed in the decision of Pallavi
Resources Ltd., (supra). In paragraph 17 to 19 and 24 of the said decision, it was observed that principle of statutory interpreta(cid:26)on that the
legislature is precise and careful in its choice of language. If the statutory provision is enacted in a certain manner, the only reasonable
interpreta(cid:26)on which can be resorted to by the Courts is that such was inten(cid:26)on of the legislature and that the provision was consciously
enacted in that manner. In the order passed by the Kerala High Court placed for considera(cid:26)on by the learned counsel for the applicant, it was
observed that a(cid:66)er evalua(cid:26)ng the facts and circumstances in the case the child is of tender age of four years and all of a sudden if fortnight
custody is granted to the father who is not having much acquaintance with the child there are chances that welfare of the child will be
affected. The said decision cannot be applied in the present case. In the case of Co(cid:67)on Corpora(cid:26)on of India Limited (supra) it was observed
that interim relief can be granted only if the Court is empowered to grant final relief. In the case of Payal Agrawal (supra), the High Court of
Rajasthan has dealt with the provisions of Sec(cid:26)on 21 of the said Act. In the said decision, it was observed that Sec(cid:26)on 21 does not provide
independent remedy to seek custody of the minor child and the jurisdiction has been conferred.
15. In the above decision it was held that the Court had no jurisdic(cid:26)on to entertain such an applica(cid:26)on. On perusal of the factual matrix of
the said decision, it can be seen that the wife had preferred an applica(cid:26)on under the Domes(cid:26)c Violence Act of 2005 for various reliefs against
her husband and his family members. During the pendency of the aforesaid applica(cid:26)on, the husband filed an applica(cid:26)on under sec(cid:26)on 21 of
the said Act praying that permanent custody of the minor child of the par(cid:26)es may be given to him and in the alterna(cid:26)ve it was prayed that
visita(cid:26)on right may be granted to him to meet the minor child of the par(cid:26)es. A pe(cid:26)(cid:26)on for grant of decree of divorce was also filed by the
husband under Sec(cid:26)on 13 of the Hindu Marriage Act and the Family Court Jaipur with the consent of the par(cid:26)es passed an order regarding
visi(cid:26)ng rights of the Respondents to the effect that the pe(cid:26)(cid:26)oner will remain present along with the child on Second Saturday of every month
and Respondent will be en(cid:26)tled to meet the child during that period. For the reasons stated herein above, I do not agree with the said
decision and it was dealt in the peculiar facts and circumstances of the said case. The learned counsel for the applicant has relied upon several
other decisions which are stated herein above. The said decisions are on broad principles of interpreta(cid:26)on which are referred to herein above
and it is not necessary to analyze the ratio laid down in the said decisions.
16. Learned counsel for the respondent had relied upon the decision of High Court of Manipur at Imphal which has been referred to
hereinabove. It was also submi(cid:67)ed that the said decision was confirmed by the Apex Court. However, learned counsel for applicant had
disputed the said fact and submi(cid:67)ed that what was challenged before the Apex Court is a different order in rela(cid:26)on to the same proceedings.
In the case of Sandeep Kumar Thakur Vs. Madhubala (supra), the High Court of Himachal Pradesh has dealt with the provision of Sec(cid:26)on 21 of
the said Act. In paragraph 6 of the said decision it was observed that Sec(cid:26)on 2(d) of DV Act defines the custody order as an order granted in
terms of Sec(cid:26)on 21. Sec(cid:26)on 2(a) defines aggrieved person to mean any woman who is or has been in a domes(cid:26)c rela(cid:26)onship with the
respondent and who alleges to have been subjected to any act of domes(cid:26)c violence by respondent. Sec(cid:26)on 2(q) defines respondent to mean
any adult male person who is or has been in a domes(cid:26)c rela(cid:26)onship with the aggrieved person and against whom the aggrieved person has
sought any relief under this Act. Sec(cid:26)on 21 is referred to in the said paragraph and it is observed that Sec(cid:26)on 21 starts with nonÂobstante
clause. On plain reading of the said provision and the language employed therein it can be said that Court may at any stage of hearing of the
applica(cid:26)on for protec(cid:26)on order or for any other relief under this Act grant temporary custody of child or children to the aggrieved person i.e.
mother or the person making an applica(cid:26)on on her behalf and specify if necessary the arrangements for visit of such child or children by the
father. The proviso a(cid:67)ached to Sec(cid:26)on 21 s(cid:26)pulates that if the Magistrate is of the opinion that any visit of the respondent may be harmful to
the interest of child or children, the Magistrate shall refuse to allow such visit. It was further observed that the child in the said case was
already in custody of his mother. The respondent had not asked for custody of the child for the simple reason that the child is already in her
custody. It is the respondent i.e. father who has sought merely visita(cid:26)on right to his son which right was granted to him by the Trial Court that
too for limited days. In case the visita(cid:26)on right is not given to the pe(cid:26)(cid:26)oner, minor child would be deprived of father's love and affec(cid:26)on. The
paramount considera(cid:26)on is welfare of child. The pe(cid:26)(cid:26)oner could not be faced to seek remedy either under the Guardians and Wards Act, 1890
and Hindu Minority and Guardianship Act, 1956, as observed by the Sessions Court as it would lead to mul(cid:26)plicity of li(cid:26)ga(cid:26)on. The Act is a self
contained code. The endeavour of the code should be to cut short the li(cid:26)ga(cid:26)on and to ensure that the child gets love and affec(cid:26)on of both
parents i.e. mother and father. The approach of the Court should be prac(cid:26)cable to work out the modali(cid:26)es in prac(cid:26)cal manner in evolving the
process whereby the child suffers minimum trauma. The interpreta(cid:26)on of the statute should be purposive. I find that the aforesaid
observa(cid:26)ons of the Court deserves to be accepted and the impugned orders passed by the Courts below are within the aforesaid parameters
which do no require interferance. The respondent shall not be refused the visita(cid:26)on rights on the ground that remedies are available in the
provisions of the other enactments. It would be per(cid:26)nent to note that the respondent no.1 has not been granted permanent custody by the
Court and the relief which was granted is visita(cid:26)on rights. In the case of Purvi Gada (supra), the Supreme Court has dealt with the issue of
custody of minor child and elaborated the considera(cid:26)ons for appointment of guardians/welfare of child etc. The Court has dealt with the
relevant considera(cid:26)ons in the interest of the welfare of the child. It was observed that custody ba(cid:67)les are always regre(cid:67)able not only for the
spouses to resort to the kind of li(cid:26)ga(cid:26)on, which is the offshoot of matrimonial discord and results in their separa(cid:26)on from each other, but also
for their child/ children who become the subject ma(cid:67)er of this kind of dispute. Failure of marriage generally leads to disputes of varied
nature, either in the form of divorce or enforcement of conjugal rights or maintenance etc and even criminal cases in the form of proceedings
u/s 498A of IPC and so on. However, in those cases where their togetherness as spouses has resulted in procrea(cid:26)on of children, the war is
extended by laying respec(cid:26)ve claims on the custody of those children as well. These minor children for their proper upbringing, need the
company of both the parents, mother as well as father, for financial reasons, security reasons, psychological reasons etc. The love of both their
parents. Not only separa(cid:26)on of their parents from each other deprives the children the company of both the parents when it results in legal
ba(cid:67)le of custody in the Courts, the situa(cid:26)on becomes more trauma(cid:26)c for these children because of various obvious reasons. That is why such
cases which seriously impact the children are most unfortunate. In the said decision it was further observed that it was incumbent upon High
Court to find out the welfare of the children as on that (cid:26)me when it was passing the order. Apart from discussing the welfare principle, the
High Court has not done any exercise in weighing the pros and cons for determining as to which of the two alterna(cid:26)ves namely giving custody
to the appellants or to the respondent is better and more feasable.
17. In the case of Dip(cid:26) Bhandari (supra), the apex Court has dealt with a situa(cid:26)on wherein the complaint under the DV Act was filed by wife.
The husband preferred an applica(cid:26)on u/s 21 of DV Act for visita(cid:26)on rights which was dismissed by the Family Court. The husband filed an
appeal against the said order before the District Judge, which was also dismissed. The husband then preferred an applica(cid:26)on u/s 482 of Cr.P.C
for quashing the charge sheet in FIR u/s 498A of IPC. The High Court stayed the said proceedings. The husband also preferred pe(cid:26)(cid:26)on
challenging the proceedings under the DV Act. The same was also stayed by the High Court. The Court requested both the par(cid:26)es to consider
se(cid:67)lement of the ma(cid:67)er. The High Court also passed orders allowing visita(cid:26)on rights to respondent no.1 husband in respect of minor child.
The order dismissing applica(cid:26)on for visita(cid:26)on right was challenged before the appropriate Court. The applica(cid:26)on for visita(cid:26)on rights was
allowed and the pe(cid:26)(cid:26)oner therein was directed to arrange for the mee(cid:26)ng of the respondent no.1 with the pe(cid:26)(cid:26)oner and their minor
daughter. The Apex Court in the said decision modified the said order and disposed off the pe(cid:26)(cid:26)on. The conten(cid:26)on of the counsel for the
respondent is that while deciding the said pe(cid:26)(cid:26)on, the Apex Court did not observe that the applica(cid:26)on preferred by the husband u/s 21 of DV
Act is not maintainable.
18. In the case of Mrs.Merry Pinto decided by this Court, it was observed in paragraph 8 of the said decision that it is well se(cid:67)led law that
while deciding an applica(cid:26)on for custody of minor child, the only paramount considera(cid:26)on is welfare of minor child and the legal rights of the
parties or the parents are not relevant.
In the case of Ruchi Majoo (supra), the Apex Court has dealt with the basic rules with regards interpreta(cid:26)on of statutes and liberal
interpreta(cid:26)on. It was observed that the first and foremost rule of interpreta(cid:26)on is the literal meaning of the words has to be taken into
considera(cid:26)on. In the case of Manoj Reberro the father of the minor child had sought visita(cid:26)on rights. The High Court had declined to grant the
relief to the father. The Apex Court observed that whatever may be the background of the case, it cannot be so acrimonious so as to deny the
right of the father to see his daughter. In the case of Dr.Kanetkar (supra), this Court has observed that the welfare of the child is paramount
considera(cid:26)on It was observed that jurisdic(cid:26)on of the Family Court under the both the parts of Sec(cid:26)on 7 do not cover the jurisdic(cid:26)on
exercisable by Judicial Magistrate, First Class in respect of grant of interim custody u/s 21 of the DV Act and therefore there is no ques(cid:26)on of
jurisdic(cid:26)on of the Magistrate u/s 21 of DV Act, 2005 being inconsistent with the provisions conferring jurisdic(cid:26)on upon the Family Court and as
such the DV Act of 1984 will not have any overriding effect upon 2005 Act. Reliefs available u/s 18, 19, 20, 21 and 22 of DV Act, 2005 are in the
nature of help, which is extended to an aggrieved person in addi(cid:26)on to the assistant that the aggrieved person may have under any other law
for the (cid:26)me being in force whether civil or criminal. This is clear from the provision of Sec(cid:26)on 26 of 2005 Act which lays down that any relief
available u/s 18, 19, 20, 21 and 22 of DV Act may also be sought in any legal proceedings before the Civil Court, Family Court or a Criminal Court.
In other words, the relief available under the 2005 Act are supplementary in nature and do not exclude similar reliefs available under the other
laws. This is further reÂaffirmed by the provisions of Sec(cid:26)on 36 of 2005 Act prescribing that the provisions of this Act shall be in addi(cid:26)on to and
not in derogation of provisions of any other law for the time being in force.
19. It was also observed that the applica(cid:26)on filed under Sec(cid:26)on 21 of the Domes(cid:26)c Violence Act seeking interim custody is maintainable
before a Magistrate exercising jurisdic(cid:26)on in rela(cid:26)on to area where family Court is established and the Magistrate has jurisdic(cid:26)on to decide
such an application in accordance with law. Irresistible conclusion further would be that the application filed under Section
21Â before the Court of Judicial Magistrate First Class Amrava(cid:26) in the instant case is tenable and impugned order cannot be assailed on the
ground of want of jurisdiction.
20. For the reasons stated herein above, I do not find that the order passed by the Courts below suffers from any legal infirmity and pe(cid:26)(cid:26)on
is therefore devoid of merits and same deserves to be dismissed. Hence, I pass the following order.
ORDER
(i)Â Criminal Application No.186 of 2016 stands dismissed;
(ii)Â the impugned orders are confirmed;
(iii)Â Parties to comply the order dated 5th January 2018 passed by learned Metropolitan Magistrate, 31st Court, Vikroli, Mumbai.
21. At this stage learned Counsel for the applicant submits that the applicant would take a decision whether to challenge the order passed by
this Court before the Apex Court. It is prayed that the opera(cid:26)on of the Trial Court's order be stayed and the interim arrangement made vide
order dated 3rd May, 2018 by this Court be con(cid:26)nued for a period of six weeks. It is also submi(cid:67)ed that the applicant had given access to the
respondent No.1. The applicant had complied the interim order dated 3rd May, 2018 and in the vaca(cid:26)on the access was given for two days
every week. Learned counsel for the respondent No.1 vehemently opposed the prayer of the applicant. It is submi(cid:67)ed that the respondent
No. 1 is en(cid:26)tled for access of the child. Although the order was passed by the trial Court on 5th January, 2018 the said order is not complied. It
is submi(cid:67)ed that on account of the vaca(cid:26)on and Diwali fes(cid:26)val, the respondent No.1 is en(cid:26)tled for overnight custody of the child. Considering
submissions advanced by both the par(cid:26)es, interim arrangement in accordance with order dated 3rd May, 2018, shall con(cid:26)nue for a period of
two weeks from today.
