The Delhi High Court on Monday dismissed the petition filed by a woman challenging the order of the trial court which had denied custody of her three minor children while stating that remedy of appeal is available under section 29 of the Protection of Women from Domestic Violence Act, 2005, before the court of sessions.
Aggrieved by the order of the trial court the mother/ petitioner moved to Delhi High Court by way of a petition under Section 482 CrPC. The petition had sought directions to set aside the order of trial court passed in a complaint Case No. 2248/2020, under the Protection of Women from Domestic Violence Act 2005, by which it had denied physical custody of her three minor children.
Section 29 in The Protection of Women from Domestic Violence Act, 2005. Says, Appeal-There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.
The Court is not persuaded in the facts and circumstances of the present case, to entertain the petition in its extraordinary power under Section 482 Cr.PC, given the fact that there is a clear remedy of Appeal under Section 29 of the Act, said Delhi High Court Justice Jyoti Singh.
In the background of the case
Trial court by its order dated 01/06/2020, directed that the custody of the children would continue to remain with the father/ respondent herein of children and as an interim measure visitation rights have been granted to the Mother.
Ms. Anand Learned Counsel for the Father/ respondent submitted that against the Impugned Order, Mother has remedy of an Appeal under Section 29 of the Act and therefore the present Petition is not maintainable under Section 482 Cr.PC. She argued that Courts have repeatedly held that when an alternate and efficacious remedy of Appeal under Section 29 of the Act is available, Petition under Section 482 Cr.PC would not lie. It is not open to the aggrieved party to bypass the remedy of Appeal under the Act, she said.
She further argued that the Court had, after hearing the parties, arrived at an interim arrangement, whereby the Mother was to interact with the children through Skype and other electronic modes and this was only after the Court was satisfied that the children were happy, safe and in a conducive environment in the custody of their father. Any contra submission regarding the well-being of the children in the company of their father is, thus false, she said.
Whereas Ms. Malavika Rajkotia counsel for the petitioner submitted that the Learned Magistrate has acted beyond the jurisdiction and scope of the very provisions of the Act, while granting custody of the minor daughters to the father and only visitation rights to the mother.
As per the mandate of the Act, the Learned Magistrate should have restored custody to the Mother, keeping in mind the fact that the children are girls and the youngest one is only three years old. A mother is best suited to look after the needs of growing daughters, particularly, the sensitivities of their emotional needs and biological requirements, she argued.
She further submitted that the Learned Magistrate has premised the impugned decision on a foundation that the Mother is suffering from a psychiatric problem and continues to be on medication for the said illness and thus would be unable to take care of the children.
Refuting with the contentions of the Petitioners counsel, the learned counsel for the father/ respondent Ms. Anand submitted that none of the judgements relied upon dealt with the exact controversy in the present case, which is that the remedy of Statutory Appeal under Section 29 of the Act has not been exhausted by the Mother. She submitted that the several judgements which she has cited; it has been clearly held that a Petition under Section 482 Cr.PC cannot lie before the High Court, as the only remedy available is by way of Appeal under Section 29 of the Act. She further counters the argument by submitting that the Mother has not given a single reason why she cannot resort to the remedy of an Appeal.
The Delhi High Court Justice Jyoti Singh held, “It was vehemently argued by Ms. Rajkotia that since the matter relates to custody of minor girls, remedy of appeal is not efficacious. I am afraid that this Court cannot accept this argument for more than one reason. Legislature in its wisdom has provided for Appeal under Section 29 of the Act against all “orders‟ and has not made any exception to orders relating to custody. Secondly, it is not shown why the Petitioner cannot resort to the remedy of an Appeal and why the Appellate Court is incapable of or incompetent to exercise its jurisdiction to deal with an impugned order of temporary custody, both in law and facts. As held in Manish Tandon (supra), the word „Order‟ used in Section 29 of the Act connotes all types of Orders passed by the Learned Metropolitan Magistrate irrespective of whether they relate to maintenance, custody, etc.”
“For all the aforesaid reasons, the present petition cannot be entertained. It is open to the Mother to avail the remedy of Appeal available to her in law, if so advised. Nothing stated in this judgement is an expression on the merits of the case regarding the custody of the three children and it is open to the competent Court to decide the issue uninfluenced by any observations made herein,” said the Court.
Read the judgment here;
-India Legal Bureau
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