‘It is only when an application for protection order or for any other relief under this Act is pending, at any stage of hearing of such application, the aggrieved person has been given right to seek temporary custody of the child or children.’
The Bombay High Court in Sham Kumbhakarna vs. Yogita has held that no ‘permanent custody’ orders can be made in proceedings under the Protection of Women from Domestic Violence Act, 2005.
Justice Sangitrao S Patil observed thus while setting aside such an order by a judicial magistrate. The magistrate, in this case, while disposing of the complaint filed under the Domestic Violence Act, had directing the husband to place the minor children in the custody of wife during summer vacations until they attain the age of majority and also to make necessary arrangements to facilitate her to meet her minor children during other holidays.
The issue before the high court was whether the words "temporary custody" used in Section 21 of the Act, would refer to grant of custody of the children during pendency of the application filed under Section 12 of the Act or whether it could be granted permanently covering the period after disposal of that application as well.
The court, referring to the provisions of the Domestic Violence Act, observed that the custody of children under Section 21 of the Act is temporary and the order for custody can be passed during the pendency of the application under Section 12 of the Act before the magistrate.
“The learned Additional Sessions Judge has interpreted the expression "at any stage of hearing" to mean and include even the stage when the application is decided finally. According to him, the expression, "at any stage of hearing" cannot be given restricted meaning to limit it "during pendency of the application" and the Magistrate can grant temporary custody of child or children to the aggrieved person while deciding the main application,” the bench observed.
“In order to understand the intention of the Legislature in using the phrase "at any stage of hearing of the application for protection order or for any relief under this Act", it would be useful to refer to Sections 19 and 20 of the Act relating to "Residence orders" and "Monetary reliefs" respectively, which commence with the expression, "While disposing of an application.....", the Magistrate may pass such orders. As such, the Legislature has thoughtfully and consciously used different expressions in Sections 19 and 20 on one hand and in Section 21 on the other. Therefore, the expression "at any stage of hearing" used in Section 21 cannot be interpreted to mean "While disposing of an application..." as has been used in Sections 19 and 20 of the Act. The language used in Section 21 is clear and unambiguous. There is no reason to take resort to purposive and liberal interpretation of the expression used in Section 21 to extend the "interim stage" to "final" one as has been done by the learned Additional Sessions Judge,” the court said.
The court also observed that relief in respect of permanent arrangement for custody of child or children, which would have force even after disposal of the application for protection order or other reliefs, cannot be said to be contemplated by the Legislature, while framing Section 21 of the Act.