@JUDGMENTTAG-ORDER
Budihal R.B., J.@mdashThe petitioner-wife, being aggrieved by order dated 22.12.2014 passed by the Fast Track Court - V at Bengaluru in Criminal Appeal No. 1335/2014 confirming the order dated 1.12.2014 passed in Crl. Misc. No. 28/2012 on I.A. by the Metropolitan Magistrate Traffic Court-VI, Bengaluru City, prefers the above revision petition against the respondent-husband on the grounds that:
"The impugned judgment and order are contrary to law, procedure and materials on record. Under the provisions of the Protection of Women from Domestic Violence Act, 2005 (for short ''the PWDV Act''), the Magistrate is not vested with the power of granting custody to the respondent. The Sessions Court ought not to have passed the impugned order as welfare of the child is at paramount consideration. It has not appreciated the fact that the child was abducted by the respondent and that he had kept the child away from the petitioner for over two years and the respondent cannot be allowed to benefit from his own fault. The Superior Court of California has also observed that the respondent kept the child away from the mother intentionally. The Sessions Court ought to have seen that the entire dispute between the parties is regarding the property which has been observed by both the Superior Court of California as well as this Court. It ought to have gone into the merits of the case before talking to the child as the Magistrate-in-charge who interviewed the child was not aware of the case and its intricacies and did so only because a memo to the effect was filed against the respondent. The Sessions Court has not considered the fact that the child is a girl nearing the age of puberty and that she has to be with her mother for proper care during this period. The Sessions Court has failed to appreciate that the respondent has psychological problems, for which he was being treated, which fact has been admitted by him before the Superior Court of California. The Sessions Court has not looked into the fact that the child is happy in the school and the surroundings and also happily celebrated the petitioner''s birth day recently. Enquiry ought to have been conducted by the Sessions Court and it ought to have spoken to both the parties to evaluate the parents before passing the impugned order. The impugned order is passed without considering evidence, citations and the documents produced by the petitioner. The Sessions Court ought to have seen that if the relief claimed in the interim application is the same as claimed in the final relief, then no relief ought to be granted without any enquiry or trial. The sessions Court, not being conversant with the facts and merits of the case and not being sensitized about the matter, has not posed the right questions to find out the actual mind of the child and it has also failed to appreciate that the child has been in the custody of the respondent, who has poisoned the mind of the child, but the petitioner never spoken ill about the respondent to the child only saying that she will understand the scenario once she grows up. The Sessions Court has also grossly erred in not taking into consideration the fact that this Court has set aside the order passed by the Magistrate. Hence, sought to allow the revision petition."
2. Heard the arguments of the learned senior counsel appearing for the revision petitioner-wife and learned counsel appearing for the respondent-husband.
3. Learned Senior Counsel appearing for the petitioner-wife, while arguing the matter, drew the attention of this Court to the provisions under Sections 2(a), 12, 18, 21, 23, 25, 28 and 36 of the PWDV Act and submitted that under the provisions of the said Act, it is the aggrieved person alone can apply for the reliefs and not any other person. The petitioner wife is the aggrieved person and hence, she is competent to apply for the relief seeking custody of the child. Learned Senior Counsel further submitted that after coming back from abroad, the petitioner wife was thrown out and the child was kept with the respondent husband. When the matter was pending before the trial court, notice was served on the father of the respondent-husband. It is further submitted that the appeal filed by the respondent-husband came to be dismissed and then Crl.R.P. No. 65/2014 filed by him was also disposed. The jurisdiction aspect was also not considered by the courts below. She further submitted that the petitioner wife has also filed a petition under the provisions of the Guardian and Wards Act and the respondent-husband has not yet filed objections and purposefully, delaying the matter. The learned Senior Counsel drew the attention of this Court to para Nos. 17 and 26 of the order of the first appellate court and submitted that the impugned order passed by the courts below is not in accordance with the provisions of PWDV Act and hence, submitted to allow the revision petition and to set aside the order under revision. In support of her contentions, learned Senior Counsel has relied upon the following decisions:
"1. CDJ 2013 BHC 2068 - (Lalithkumar R Yadav v. Mrs. Vandana Lalit Kumar Yadav and Others)
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3. CDJ 2009 APHC 552 - (Dr Ambula Manoj v. Ambula Bhavana and Another)
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4. Per contra, learned counsel appearing for the respondent-husband submitted that the parties including the child are foreign citizen. From the beginning, the child was more attached to her father i.e., the respondent herein, having grievance against the mother. The learned Counsel submitted that the money sent by the respondent-husband from abroad to Bengaluru was used by the petitioner for herself and for the relatives, and it was not used for the welfare of the child. On 12.1.2005, the respondent-husband went back to California along with the child. The child was with the father only and she was not kidnapped by respondent-husband as alleged by the petitioner-wife. The learned counsel further submitted that the child used to tell that the mother i.e., the petitioner, was always abusing her and so she wanted to continue with the father. The child was with the petitioner on the basis of the ex-parte order passed by the trial court. When the said order was challenged before this Court, it was set aside and the matter was remanded back to the trial court. The application filed by the respondent-husband was under Section 25 of the PWDV Act, but not under Section 21 of the said Act and hence, the learned counsel submitted that the order passed by the trial court is well within its jurisdiction. It is also submitted that before passing the order by the trial court, the child was interviewed by the Presiding Officer and the child made her intention clear that she wanted to be with her father and accordingly, the order was passed. No illegality has been committed by the trial court and hence, there is no merit in the revision petition and the same is to be rejected. In support of the arguments, learned counsel appearing for the respondent-husband has also relied upon the following decisions:
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7. Ashish Ranjan v. Anupama Tandon, SC, Contempt Petition (Civil) No. 394 of 2009 in Transfer Petition (Civil) No. 195 of 2008, Judgment dated 30/11/2010
8. Labhubhai v. State, Gujarat High Court in Criminal Misc. Application No. 1200 of 2011, Judgment dated 06.04.2011.
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5. I have perused the pleadings of the parties presented before the Magistrate Court, the orders passed by courts below, the decisions relied upon by learned counsel on both sides and also the grounds urged in this petition.
6. Let me refer to the relevant facts of this case. The revision petitioner and the respondent are the married couple. Out of the wedlock, a female child, by name Ananya P. Rao, was born and now, she is aged 10 years. The case of the respondent-husband before the Magistrate Court was that he filed an application under Section 25 of the PWDV Act seeking interim custody of the child alleging that he is residing at California and his daughter is also staying with him. Due to difference between himself and the revision petitioner-wife, he filed proceedings before the Superior Court of California seeking judicial separation so also he filed an application seeking interim custody of the daughter to him. The application for interim custody of the child was allowed by the Superior Court of California and accordingly, the child was with him. The contention of the respondent husband is that the petitioner-wife filed a petition before the Magistrate Court in India under Section 12 of the PWDV Act seeking relief of protection and other reliefs and in the said proceeding, she has also filed an application seeking custody of the child which was allowed ex parte by the Magistrate Court and the respondent-husband was directed to deliver the custody of the child to petitioner-wife. In view of such order passed by the Magistrate, the Superior Court of California directed the respondent-husband to hand over the custody of the child to the mother of the child. The respondent-husband when challenged the order of the Magistrate before the first appellate court, the appeal was also dismissed confirming the order of the Magistrate. Thereafter, the respondent-husband preferred Criminal Revision Petition No. 65/2014 before this Court. This Court observed that the Magistrate Court, without issuing notice to the respondent-husband, had passed the order ex-parte in favour of the petitioner-wife and on that ground, the said order was set aside by this Court and the matter was remanded back to the Magistrate Court with direction to afford opportunity to the respondent-husband and then to consider the said application. After remand of the matter to the Magistrate Court, the respondent-husband filed an application under Section 25 of the PWDV Act and the Magistrate, after considering the said application, allowed the same by order dated 1.12.2014 and directed the petitioner-wife to hand over the custody of the child to the respondent-husband from 1.4.2015 and till then, the custody of the child was directed to be continued with the petitioner-wife. The respondent-husband was given the right of visiting and keeping the child with him on week ends i.e., from Saturday morning at 8 a.m. till Sunday 8 p.m. This arrangement was directed to be continued till the end of March, 2015. The order passed by the Magistrate on the said application filed by respondent-husband was challenged by the petitioner-wife in the appeal before the Fast Track Court-V Bengaluru in Crl. Appeal No. 1335/2014. The first appellate court has also concurred with the findings of the learned Magistrate and dismissed the appeal. Against the said orders of the courts below, the present revision petition is filed by the petitioner wife.
7. It is the contention of the petitioner-wife that the respondent-husband has kidnapped her daughter from India and took her to U.S. and in that regard, she has filed a complaint for missing of her daughter. It is also her contention that now the child is with her and she is now studying in 5th standard at Bengaluru city and she is happy with her mother. At this stage, if the custody is given to the respondent-husband, it will not be in the interest and welfare of the said child. It is further contention of the petitioner-wife that her daughter is grown up and she is nearing the age of puberty and at this crucial stage, it is better that the child will have to be in her custody.
8. Perusing the factual aspects of the case, now let me consider the correctness and legality of the order passed by the courts below on the application filed by the respondent-husband seeking interim custody of the child to himself. The respondent husband filed the said application under Section 25 of the PWDV Act. The learned Magistrate has allowed the said application and ordered the petitioner-wife to hand over the custody of the child to the respondent-husband from 1.4.2015. The contention of the petitioner-wife is that the respondent-husband cannot file such application seeking interim custody of the child and that the said right is given under the special enactment i.e., Protection of Women from Domestic Violence Act, 2005, to the ''aggrieved person''. Here, the aggrieved person means any woman who is or has been in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence of the respondent. Therefore, the first and foremost contention of the revision petitioner is that the order passed by the learned Magistrate is without jurisdiction and it is void ab initio.
9. Referring to definition as per Section 2 of the PWDV
Act, In this Act, unless the context otherwise requires,-
"(a) "aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;
(d) "custody order" means an order granted in terms of section 21;"
10. So, according to this definition, Section 2(d) clearly goes to show that the custody orders passed by the courts in relation to the child come necessarily under Section 21 of the PWDV Act.
11. Section 21 reads as under:
"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 PWDV Act grant temporary custody of any child or children to the aggrieved person or the person 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.
12. Therefore, Section 21 clearly expresses that the temporary custody of a child or children can be given to the aggrieved person or the person, making an application on her behalf, by making necessary the arrangement for visit of such child or children by the respondent.
13. Though the application is said to have been filed under Section 25 of the PWDV Act, if we look into the prayer seeking the interim custody of the child keeping the final proceedings pending filed under Section 12 of the Act and also perusal of the order passed by the learned Magistrate, which is confirmed by the first appellate court, virtually and in reality, it is an order which comes within the purview of Section 21 of the PWDV Act. If we read carefully the provisions under Section 21, no such right is given to the respondent-husband to file an application seeking interim custody of the child.
14. The contention of the respondent-husband is that as the ex-parte order was passed by the Magistrate Court ordering interim custody of the child to the petitioner-wife, and the Superior Court of California, on the basis of the order of the Magistrate Court, has also ordered and directed the respondent-husband to deliver the custody of the child. The said order of the Magistrate Court was set aside by this Court in criminal revision petition filed by the respondent-husband and this Court remanded the matter for fresh hearing and this aspect shows that respondent-husband is entitled for getting back the custody of the child. But the said contention of the respondent-husband cannot be accepted because the order passed by the Superior Court of California regarding interim custody of the child was recalled and as on the date of application filed by respondent under Section 25 of PWDV Act, the said order was not in force. This legal aspect has not been considered by the Courts below and they have wrongly proceeded to allow the application ordering interim custody of the child to the respondent-husband.
15. I have further perused the decisions relied upon by the learned senior counsel appearing for the revision petitioner-wife. The said decisions support the contention of the petitioner-wife that the respondent husband is not having right to make such application seeking interim custody. I have also perused the decisions relied upon by the learned counsel appearing for the respondent-husband, referred above, and those decisions are not under the provisions of the PWDV Act, which is a special enactment providing the provisions regarding the interim custody of the child for temporary period till disposal of main petition filed by the parties. Therefore, the decisions relied upon by the respondent-husband will not come to the aid and assistance of his contention that he is entitled to have the interim custody of the child. Hence, the order passed by the trial court which is confirmed by the first appellate court, is not in accordance with the provisions of the Act and they are not sustainable in law.
16. Accordingly, revision petition is allowed. The order dated 22.12.2014 passed by the Fast Track Court - V at Bengaluru in Criminal Appeal No. 1335/2014 and the order dated 1.12.2014 passed in Crl. Misc. No. 28/2012 on I.A. by the Metropolitan Magistrate Traffic Court-VI, Bengaluru City, are hereby set aside.
