Child Custody: Under Domestic Violence Act

                                                                                      Custody of Child under Protection of Women from Domestic Violence Act, 2005

The Indian legal system has always been proactive in safeguarding children’s welfare and in settling matrimonial disputes between the warring parents in a way that the children do not bear their brunt. To that effect, the Protection of Women from Domestic Violence Act, 2005 (“DV Act”) has been enacted for safeguarding the interest of not just women, but children as well. Inter alia, the act allows an aggrieved person to apply to the court for obtaining an order for temporary custody of a child or children. The relevant provision has been produced herewith for our clients’ reference.

“Section 21. 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 Act grant temporary custody of any child or children to the aggrieved person or the person making an application 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 interests of the child or children, the Magistrate shall refuse to allow such visit.”

                                                                                                                                                   “Welfare Principle” in Child Custody Matters

Child custody battles are always regrettable, not only for the spouses who resort to this kind of litigation, which is the offshoot of matrimonial discord and results in their separation from each other, but also for their child/children who become the subject matter of this kind of dispute. These minor children, for their proper upbringing, need the company of both the parents – mother as well as the father, for financial reasons, security reasons, psychological reasons, etc. They need the love of both their parents. Not only separation of their parents from each other deprives these children company of both the parents, when it results in legal battle of custody in the courts, the situation becomes more traumatic for these children because of various obvious reasons. That is why such cases which seriously impact these children are the most unfortunate. The paramount consideration while deciding such custody matters is to see where the welfare of children lies. The courts attach superlative importance to the interests of children. All other considerations are secondary. An aggrieved mother may even be denied custody of her child under Section 21 if the court deemed her to be incapable of taking care of the child by herself. The courts avoid taking any decision that is against the wellbeing of the child.

                                                                                                                                     Excerpts from Judgments on Child Custody under the DV Act

The Supreme Court of India and High Courts of various States have consistently held that in deciding cases of child custody “the first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute”. The following are some of relevant excerpts from judgment of Indian courts on child custody under the DV Act:

1. In re Scope & Extent of Section 21

Under Section 21, the order of custody that is passed is temporary in nature, and can be passed only during the pendency of an application for protection order or for any other reliefs under the DV Act.

Excerpt from Parijat Vinod Kanetkar & Ors. v. Malika Paruat Kanetkar & Ors., 2016 SCC OnLine Bom 10047, Bombay High Court judgment: “14. …….The purpose that this section seeks to achieve is protection of the aggrieved person, for the time being from domestic violence, which is discernible from the condition prescribed for exercise of the interim custody power under section 21 of the DV Act. Pendency or filing of an application for protection order or any other relief under the DV Act is must and in such proceeding the issue of interim custody can be raised. The reason being that it is also an issue of domestic violence as it harms the mental health of an aggrieved person who maintains a perception and is capable of demonstrating at least in a prima facie manner, that welfare of the child is being undermined. The nature of the power is temporary and coterminous with the main application filed for protection or any other relief. It begins with filing of such main application and comes to an end with disposal of the main application or may merge with the final decision rendered in the proceeding.”

Excerpts from Dhaval Rajendrabhai Soni v. Bhavini Dhavalbhai Soni, 2011 SCC OnLine Guj 899, Gujarat High Court Judgment: “15. …….In essence, therefore, in any proceedings under the Act, Magistrate is empowered to grant temporary custody of the child to the aggrieved person. It can be easily appreciated that said power assumes significance when looked from angle of wife or any other woman approaching the Magistrate seeking protection against the domestic violence by husband, his family members or other relatives. A small child to a mother is extremely precious. If mother is separated from her child, her resistance is most likely to break down. It is in this regard that learned Magistrate is empowered to pass custody orders, notwithstanding anything contained in any other law for the time being in force. Such powers of Magistrate read with Section 23 of the Act would include power to pass interim as well as ex-parte orders. It is therefore, of great significance and importance that Magistrates while dealing with the application of an aggrieved person seeking custody of her child deal with the situation promptly and bearing in mind the objects and purpose of the Act and also bearing in mind that mother when separated from child is likely to agree to any terms and conditions, not to resist domestic violence from husband or other family members.
16. Significantly, the Legislature has therefore, used words temporary custody and not interim custody. This is important since by virtue of Section 23 of the Act in any case, learned Magistrate has power to pass interim order which he otherwise can pass finally. Term temporary custody in Section 21 is used in juxta position to the term interim order used elsewhere in Section 23 of the Act . It thus becomes clear that learned Magistrate can pass an order of custody in favour of an aggrieved person by way of temporary measure not necessarily in the nature of interim order which can have life only upto life of the proceedings before him.
17. Having said so, I cannot lose sight of the fact that nowhere under the Act learned Magistrate is permitted to pass final order of custody and any order that learned Magistrate can pass must have limited validity either in terms of time or happening of an event. Learned Magistrate cannot pass order granting permanent custody of the child to the aggrieved person.”

2. In re Visitation Rights of the Father under Section 21

Under Section 21, it is only an aggrieved mother who can approach the court for obtaining child custody orders. In adjudicating over the issue, it is the discretion of the court on whether the father should be granted the visitation rights. The court gives prime importance to the child’s well being and restrains the father from meeting the child if it interferes with the child’s welfare in any manner.

Excerpt from Payal Sudeep Laad v. Sudeep Govind Laad & Anr., (2019) 1 AIR Bom R (Cri) 215, Bombay High Court judgment: “17. …….The proviso attached to Section 21 stipulates 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 visitation right to his son which right was granted to him by the Trial Court that too for limited days. In case the visitation right is not given to the petitioner, minor child would be deprived of father’s love and affection. The paramount consideration is welfare of child. The petitioner 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 multiplicity of litigation. The Act is a self contained code. The endeavour of the code should be to cut short the litigation and to ensure that the child gets love and affection of both parents i.e. mother and father. The approach of the Court should be practicable to work out the modalities in practical manner in evolving the process whereby the child suffers minimum trauma. The interpretation of the statute should be purposive.”

Excerpt from Manoj Anslem Rebeiro vs Candace Elizebath Rebeiro, 2016 SCC OnLine SC 537, Supreme Court of India judgment: “3. …….we find that whatever be the background of the case, it cannot be so acrimonious so as to deny the right of the father to see his daughter.”

How can Hello Counsel help you?

A good Child Custody lawyer has to handle the legal and emotional issues of the warring couple with utmost precision. A Child Custody lawyer has to act not only as a professional but also as a human being with the heart of a parent to fight out the Child Custody case in the Court of law.

We at Hello Counsel, have a team of seasoned legal professionals specializing in Child Custody matters.

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