JUDGMENT : Akil Kureshi, J. Petitioners have challenged an order dated 24.11.2009 passed by learned Additional Sessions Judge, Jamnagar in Criminal Appeal No. 29/2009. By the said order, the learned Judge was pleased to reverse the order dated 27th August, 2009 passed by the learned Additional Senior Civil Judge and JMFC, Jamnagar. 2. Petitioner No. 1 is the husband of original complainant, respondent No. 1 herein. Petitioner Nos. 2 and 3 are other family members. Respondent No. 1 has instituted proceedings under the Protection of Women from Domestic Violence Act, 2005 (herein after referred to as 'the Act'). She also moved an application for interim directions in terms of Sections 20 to 22 of the said Act. One of her prayers was for custody of her three years old son. Learned Magistrate by his order dated 27.08.2009, though granted interim maintenance to the complainant, refused to hand over the custody of the child to her. She, therefore, filed Criminal Appeal. By the impugned order, learned Additional Sessions Judge granted the request, hence the petition. 3. Learned Magistrate primarily was influenced by the fact that the petitioner No. 1 and other family members work from home and therefore, are able to take care of the child and if the custody of the child is handed over to mother, the child would have to be uprooted from his school, which would be detrimental to him. On the other hand, learned Additional Sessions Judge was of the opinion that child being of tender age, mother should be allowed to look after him. Reliance was placed on certain decisions of this Court and other Courts. 4. At the outset, it may be clarified that this petition is directed against the order for custody of child and not for interim maintenance. 5. Learned advocate for the petitioners submitted that the Sessions Court has not appreciated all the facts in proper perspective. There was no error in view of the learned Magistrate. Before the protection Officer, no request for custody of the child was made. His report was therefore silent on this aspect. It was contended that powers under Section 21 of the Act are only for passing interim order. It was also contended that against the father and other members of the family of respondent No. 1, there are criminal cases. Child is already studying in a school and should not, therefore, be disturbed. 6. It was contended that powers under Section 21 of the Act are only for passing interim order. It was also contended that against the father and other members of the family of respondent No. 1, there are criminal cases. Child is already studying in a school and should not, therefore, be disturbed. 6. Section 6 of the Hindu Minority and Guardianship Act, 1956, reads as under: "6. Natural guardians of a Hindu minor. The natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are (a) in the case of a boy or an unmarried girl the father, and after him, the mother : provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in case of an illegitimate boy or an illegitimate unmarried girl – the mother, and after her, the father; (c) in the case of a married girl – the husband: Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation : In this section, the expression "father" and "mother" do not include a stepfather and a stepmother." Section 13 of the Hindu Minority and Guardianship Act, 1956 reads as follows: "13. Welfare of minor to be paramount consideration. (1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. (2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor." It can thus be seen that while dealing with the question of custody of minor child, welfare of the child is of paramount importance. Further, under Section 6 of the Hindu Minority and Guardianship Act, 1956, though the father of a minor Hindu child is a natural guardian, custody of a minor who has not completed the age of 5 years, should ordinarily be with the mother. Though this provision contained in Section 6 of the Hindu Minority and Guardianship Act, 1956, is treated as not inviolable rule since the provision itself uses the word "ordinarily", it does still bring out the legislative intent of not separating the young infant from the mother unless there are reasons overriding such a requirement. 7. In case of Mausami Moitra Ganguli v. Jayanti Ganguli reported in 2008 Supreme Court 2262, the Apex Court observed in para 14 as under: "14. The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably the provisions of law pertaining to the custody of a child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obligerate the vital factor of the welfare of the minor. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned." In the case of Lekha v. P. Anil Kumar reported in (2006) 13 Supreme Court Cases 555, the Apex Court granted the custody of a minor child to the mother though she had remarried giving following observations : "19. The law permits a person to have the custody of his minor child. The father ought to be the guardian of the person and property of the minor under ordinary circumstances. The law permits a person to have the custody of his minor child. The father ought to be the guardian of the person and property of the minor under ordinary circumstances. The fact that the mother has married again after the divorce of her first husband is no ground for depriving the mother of her parental right of custody. In cases like the present one, the mother may have shortcomings but that does not imply that she is not deserving of the solace and custody of her child. If the court forms the impression that the mother is a normal and independent young woman and shows no indication of imbalance of mind in her, then in the end the custody of the minor child should not be refused to her or else we would be really assenting to the proposition that a second marriage involving a mother per se will operate adversely to a claim of a mother for the custody of her minor child. We are fortified in this view by the authority of the Madras High Court in S. Soora Reddi v. S. Chenna Reddi, AIR 1950 Mad. 306 where Govinda Menon and Basheer Ahmed Syed, JJ. have clearly laid down that the father ought to be a guardian of the person and property of the minor under ordinary circumstances and the fact that a Hindu father has married a second wife is no ground whatever for depriving him of his parental right of custody." In case of Gaurav Nagpal v. Sumedha Nagpal reported in (2009) 1 Supreme Court Cases 42, the Apex Court again emphasised on the welfare of the child while dealing with the custody matters and the Apex Court referring to Sections 6 and 13 of the Hindu Minority and Guardianship Act, 1956, made following observations. "43. The principles in relation to the custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the "welfare of the child" and not rights of the parents under a statute for the time being in force. 44. The aforesaid statutory provisions came up for consideration before courts in India in several cases. In determining the question as to who should be given custody of a minor child, the paramount consideration is the "welfare of the child" and not rights of the parents under a statute for the time being in force. 44. The aforesaid statutory provisions came up for consideration before courts in India in several cases. Let us deal with few decisions wherein the courts have applied the principles relating to grant of custody of minor children by taking into account their interest and wellbeing as paramount consideration. 45. In Saraswatibai Shripad Ved v. Shripad Vasanji Ved, AIR 1941 Bom. 103, the High Court of Bombay stated: (AIR p.105) "...It is not the welfare of the father, nor the welfare of the mother, that is the paramount consideration for the court. It is the welfare of the minor and of the minor alone which is the paramount consideration..." (emphasis supplied) 46. In Rosy Jacob v. Jacob A. Chakramakkal, 1973 (1) SCC 840 this Court held that object and purpose of the 1890 Act is not merely physical custody of the minor but due protection of the rights of ward's health, maintenance and education. The power and duty of the court under the Act is the welfare of minor. In considering the question of welfare of minor, due regard has of course to be given to the right of the father as natural guardian but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship." In case of Purushottam Wamanrao Thakur v. Warsha Narendra Thakur reported in 1992 Criminal Law Journal 1688, learned single Judge of Bombay High Court observed that "11. Considering the principles laid down by Their Lordships of the Supreme Court and of various High Courts, there is no dispute that mother is entitled of the custody of the child below the age of 5 years, being a guardian." 8. Reverting to the grounds urged by the counsel for the petitioners, it may be noted that none of the grounds would permit me to upset the order passed by the learned Sessions Court, Jamnagar. Firstly, the child is as young as three years and except some extra ordinary reasons are demonstrated, mother would be the best person to look after the child as young as that. Firstly, the child is as young as three years and except some extra ordinary reasons are demonstrated, mother would be the best person to look after the child as young as that. Nothing has been produced on record by the petitioners to indicate that the mother would not have good influence on the child. Regarding the alleged criminal cases, no details are produced on record either before the lower Courts or before this Court. Simply because the father is working from home, that by itself cannot be a substitute for mother's care, warmth and attention which a child as young as three years would need particularly, when his own parents are at loggerheads and there are matrimonial disputes going on. 9. Shifting of the school of a child at an age of three year can hardly be a ground on which custody of child can be denied to the mother. There are number of instances where families have to shift from place to place because of transferable job of the main bread winner of the family. Such factors cannot override the overwhelming interest of the welfare of the child which ordinarily would be best served, as held by this Court and Apex Court in series of judgments, by being in the care and protection of the mother at least till the child is of tender age. 10. Section 21 of the Act reads as follows: 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 of for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making any 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." From the above provision, it can be seen that the Magistrate has ample power at any stage of hearing of the application for protection order or for any other relief to grant temporary custody of any child to the aggrieved person with or without visitation rights to the respondent. The Act has been enacted for more effective protection of the rights of women guaranteed under the Constitution, who were victims of violence of any kind occurring within the family and for matters connected therewith. Various provisions have been made under the Act for protecting rights of women who are subjected to domestic violence. Under Section 12(1) of the Act, an aggrieved person or a protection Officer or any other person on behalf of the aggrieved person is allowed to present an application to the Magistrate seeking any of the reliefs under the Act. Section 17 of the Act provides that notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the share household, whether or not she has any right, title or beneficial interest in the same and further that the aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent except in accordance with the procedure established by law. Section 18 of the Act empowers the Magistrate to pass various orders termed as protection orders including prohibiting the respondent from committing an act of domestic violence, entering the place of employment of the aggrieved person, alienating any assets, causing violence to the dependents, other relatives or any person who give the aggrieved persons assistance from domestic violence etc. Section 19(1) of the Act empowers the Magistrate while disposing of an application under Section 12(1) of the Act, to pass various orders termed as residence orders including restraining the respondent from dispossessing or disturbing the possession of the aggrieved person from the share household, directing the respondent to remove himself from the shared household etc. Section 20 of the Act authorizes the Magistrate to grant monetary reliefs to the aggrieved person including reimbursement of loss of pending medical expenditure, maintenance etc. Section 21 of the Act as already noticed, empowers the Magistrate to pass custody orders of minor children of the aggrieved person. Section 22 of the Act empowers the Magistrate to pass an order admitting the respondent to pay compensation and damages for the injuries including mental torture and emotional distress caused by the acts of domestic violence committed by the respondent. Section 23(1) of the Act empowers the Magistrate to pass interim orders as found just and proper. Section 22 of the Act empowers the Magistrate to pass an order admitting the respondent to pay compensation and damages for the injuries including mental torture and emotional distress caused by the acts of domestic violence committed by the respondent. Section 23(1) of the Act empowers the Magistrate to pass interim orders as found just and proper. Section 23(2) authorizes the Magistrate to pass exparte orders also. Section 23 reads as follows: "23. Power to grant interim and ex parte orders. (1) In any proceedings before him under this Act, the Magistrate may pass such interim order as he deems just and proper. (2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an exparte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under Section 18, Section 19, Section 20, Section 21 or, as the case may be, Section 22 against the respondent." 11. It can thus be seen that elaborate provisions have been made under the Act to grant meaningful and effective protection to a woman against domestic violence. Number of orders which are ancillary or incidental to and essential to make such protection meaningful are also provided under various provisions noted herein above. Custody of minor children of an aggrieved woman is one such order which a Magistrate can pass under Section 21 of the Act. As per Section 23 of the Act, such an order can be passed as an interim order or even as an exparte adinterim order. Power of a Magistrate under the Act reading Section 12(1) with Section 18(g), which permits the Magistrate to pass any order prohibiting the respondent from committing any other act as specified in the protection order, is very wide. The legislature by making special separate provision for custody of minor children under Section 21 of the Act has put the matters beyond doubt. It can thus be seen that power of Magistrate under Section 21 of the Act is of great importance. The legislature by making special separate provision for custody of minor children under Section 21 of the Act has put the matters beyond doubt. It can thus be seen that power of Magistrate under Section 21 of the Act is of great importance. This is further emphasised where under Section 23(2) of the Act, the Magistrate is empowered to pass any order under Section 21 not only as an interim order, but also as an exparte adinterim order. The reason for this emphasis is not far to seek. A woman who is fighting against domestic violence, faces number of hurdles. The mother whose minor child is separated from her forcibly that too at a young age, would be left distressed and her resistance against domestic violence would break down. Magistrates, therefore, while dealing with the applications of an aggrieved person seeking custody of minor children who may have been forcibly separated from the mother should be prompt and considerate to give effect to the legislative intent. 12. Though learned advocate for the petitioner raised some doubt about the nature of the order passed by the Sessions Court, I have no doubt that the same is meant to operate by way of interim direction. Firstly, the application of the mother itself was for interim custody. Secondly, Section 21 of the Act under which the said question was considered by both the Courts, also refers to interim custody. The Sessions Court also has considered the said issue in proper perspective. 13. Despite rejection of this petition, it is left open for the petitioner No. 1 to apply to the Magistrate for seeking visitation rights of the child while he is in custody of the mother. If such an application is made, the same shall be considered in accordance with law. 14. Subject to above observations, petition is dismissed. 15. Request for staying this order is refused. Petition dismissed.