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2012 DIGILAW 948 (KAR)

VINUTHA SHETTY v. SRI SATHISH

2012-11-21

H.N.NAGAMOHAN DAS

body2012
Order In this petition the petitioner has prayed to quash the order dated 18.06.2011 in M.C.No.478/2008 passed by the Add. Civil Judge (Jr.Dn) at Udupi and the order dated 30.11.2011in Crl.Rev.Petn.No.47/2011 passed by the Fast Track Judge, Udupi. 2. Petitioner and her two children filed M.C.No.478/2008 under Section 125 Cr.P.C. for grant of monthly maintenance. In this petition the respondent filed an application under Section 21 of Protection of Women from Domestic Violence Act with a prayer for interim custody of the child. After hearing both the parties the jurisdictional Magistrate passed the impugned order and the operative portion reads as under: “The application filed by the respondent under Section 21 of Protection of Women from Domestic Violence Act, 2005 is hereby partly allowed. The petitioner is directed to produce both the children before this Court on first Saturday of every month at11a.m. in open Court and the respondent shall take the custody of those children till 5.30 evening and produce them before this Court, and in turn the petitioner should take the custody of children. If the first Saturday falls holiday for any reason, the respondent is entitled to visit them on next working day. This shall be continued till the disposal of the main petition. The respondent shall take care of the children in all aspects while they are in his custody. The petitioner is directed and warned to comply the orders of this Court without fail, which otherwise this court would be constrained to take serious view. 3. Aggrieved by this order the petitioner filed a revision before the Fast Track Court at Udupi in Crl.R.P.No.47/2011 and the same came to be dismissed vide order dated 30.11.2011 confirming the order passed by the Jurisdictional Magistrate. Hence this petition. 4. During the pendency of this petition respondent has now filed a petition in G & WC No.16/2012 under the provisions of Guardians and Wards Act for the custody of the minor child and the same is pending adjudication. 5. Though the impugned order passed by the jurisdictional Magistrate is without jurisdiction the same is an equitable order. However, it is seen that the order passed by the jurisdictional Magistrate is not enforced for various reasons. Now that appropriate legal proceedings is initiated by the respondent for the custody of the minor child, he is also entitled to make appropriate application for interim custody of the minor child. However, it is seen that the order passed by the jurisdictional Magistrate is not enforced for various reasons. Now that appropriate legal proceedings is initiated by the respondent for the custody of the minor child, he is also entitled to make appropriate application for interim custody of the minor child. In that event the same is to be considered in accordance with law. Till the consideration of the application to be filed by the petitioner in G & WC No.16/2012, I am of the considered opinion this court in exercise of its discretionary power under Section 482 Cr.P.C. direct the petitioner to produce both the children on every second Sunday before the Udupi Town Police Station enabling the respondent to take custody of the children between 11 AM and 5 PM. With the above observation the petition is hereby disposed of. This interim order is subject to the respondent paying the maintenance as ordered by the courts below up to date.