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2018 DIGILAW 117 (RAJ)

VIKRAM BOTHRA v. NUPUR BOTHRA

2018-01-08

P.K.LOHRA

body2018
ORDER : P.K. Lohra, J. Petitioner-husband has preferred this revision petition under Section 397/401 Cr.P.C. to question legality and propriety of order dated 9th of January 2015, passed by Addl. Sessions Judge, Sujangarh, District Churu (for short, 'learned appellate Court'), accepting appeal of respondent-wife under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (for short, 'Act of 2005') and besetting order dated 17th of September, 2014, passed by Addl. Chief Judicial Magistrate, Sujangarh, District Churu (for short, 'learned trial Court'). By the order impugned, learned appellate Court has annulled the order of learned trial Court passed under Section 21 of the Act of 2005 allowing the petitioner visitation rights to meet his minor son Master Arjun on court dates. 2. The factual matrix, giving rise to this revision petition, is that respondent-wife laid an application under Section 12 of the Act of 2005 before learned trial Court against petitioner craving relief of different denominations under Section 20 and 22 of the Act of 2005. When the proceedings on application under Section 12 of the Act of 2005 were in vogue before the learned trial Court, petitioner-husband filed an application under Section 21 of the Act of 2005 seeking orders for temporary custody of minor son Master Arjun. Respondent-wife contested the said application by submitting her reply. After submission of reply, arguments were heard by the learned trial Court and by its order dated 17th of September 2014 limited indulgence was granted to the petitioner permitting him visitation rights during court hours on the date of hearing of main application and take him out of court premises. Trial Court further ordered that the petitioner shall handover safe custody of the minor child to his mother respondent-wife after the Court hours are over. That apart, respondent-wife was granted the liberty of laying appropriate application before the Court for not allowing the petitioner to meet the child on school holidays or when minor child is on leave. 3. Learned appellate Court, upon hearing arguments on appeal, reversed the order passed by learned trial Court precisely by citing the reason that temporary custody rights envisaged under Section 21 of the Act of 2005 are available to women only as the Act of 2005 is intended to protect them from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. It is also observed by the learned appellate Court, while upsetting the order of learned trial Court, that aggrieved party in this matter is respondent-wife inasmuch as she has laid an application under Section 12 of the Act of 2005. 4. Learned counsel for the petitioner submits that learned appellate Court has seriously erred in construing Section 21 of the Act of 2005. Mr. Choudhary contends that remedy for temporary custody of a child or children is available to both mother and father under Section 21 of the Act of 2005 and the legislature has not confined the said remedy to mother alone. Learned counsel would contend that the Act of 2005 is a special law which is enacted posterior to the Family Courts Act, 1984 (for short, 'Act of 1984'), therefore, Section 20 of the Act of 1984 cannot whittle down the powers of a Magistrate to pass appropriate order under Section 21 of the Act of 2005. Mr. Choudhary has also argued that Section 21 of the Act of 2005 begins with non-obstante clause, therefore, Section 7, 8 & 20 of the Act of 1984 cannot divest the powers of a Magistrate from passing appropriate temporary custody orders under Section 21 of the Act of 2005. In support of his arguments, learned counsel for the petitioner, Mr. Choudhary, has placed reliance on following judgments: (1) Sandeep Kumar Thakur v. Madhubala, 2016 (supp) Him. L.R. 2611] (2) Smt. Huidrom Ningol Maiban Ongbi Omila Devi v. Inaobi Singh Maibam, 2017 Cr.L.J. 659 (3) Vinay Gupta v. Saveri Nayak, 2017 (1) DMC 181 : 2017 (1) Crimes 53] (4) Vikas Agarwal v. Geeti Mathur, 238 (2017) DLT 317. (5) Parvati v. Ramesh Kumar & Ors. (Cr. Revision No. 1258 of 2015, decided on 20.04.2017). 5. Per contra, learned counsel for the respondent-wife would urge that learned appellate Court has rightly construed the legislative intent in reversing the order of learned trial Court and therefore the impugned order warrants no interference. Learned counsel for the respondent further submits that custody of a minor child, may be temporary, cannot be granted by a Magistrate in exercise of powers under Section 21 of the Act of 2005 and appropriate remedy in this behalf can only be availed by petitioner under Sections 7 & 8 of the Act of 1984. Learned counsel, Mr. Learned counsel for the respondent further submits that custody of a minor child, may be temporary, cannot be granted by a Magistrate in exercise of powers under Section 21 of the Act of 2005 and appropriate remedy in this behalf can only be availed by petitioner under Sections 7 & 8 of the Act of 1984. Learned counsel, Mr. Shambhoo Singh, has further argued that a bare reading of Section 20 of the Act of 1984 makes it clear that said enactment has the overriding effect on all other enactments in force dealing with the issue of custody of a minor. Lastly, learned counsel submits that there is no illegality or impropriety in the impugned order so as to interfere with same in exercise of revisional jurisdiction. In support of his arguments, learned counsel has placed reliance on following judgment: Harsh v. Smt. Komal @ Priyanka, [2016 (1) Criminal Court Cases 203 (Rajasthan)] 6. I have heard learned counsel for the parties, perused impugned order and thoroughly scanned entire record of the case. 7. A bare perusal of Sections 7 & 8 of the Act of 1984 makes it abundantly clear that the matters/disputes which are within the exclusive jurisdiction of Family Court, jurisdiction of other Courts is excluded. Furthermore, Section 20 of the Act of 1984 gives it overriding effect with non-obstante clause. Section 20 envisages with clarity and precision that provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Under clause (g) of sub-section (1) of Section 7 a suit or proceeding in relation to guardianship of the person or the custody of, or access to minor is within the jurisdiction of Family Court. Be that as it may, the fact remains that the Act of 2005 aims to provide for more protection to women of their constitutional rights. Being a social welfare legislation, it is imbibing the spirit of various welfare provisions for upliftment in socio-economic conditions of women. Therefore, it is certainly a unique piece of legislation for doing away with social menace of domestic violence which is prevalent in civilized as well as uncivilized sections of society. Being a social welfare legislation, it is imbibing the spirit of various welfare provisions for upliftment in socio-economic conditions of women. Therefore, it is certainly a unique piece of legislation for doing away with social menace of domestic violence which is prevalent in civilized as well as uncivilized sections of society. Unquestionably, it is latter enactment than the Act of 1984 and therefore in appropriate cases, a Magistrate, while exercising power under Section 21 of the Act, may pass appropriate orders of temporary custody of a child or visitation rights to an aggrieved person. 8. Now, coming to the merits of the case, suffice it to observe that aggrieved person is defined under Section 2(a) of the Act of 2005, which reads as under: 2(a). "aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent." 9. A bare reading of the definition makes it abundantly clear that "aggrieved person" postulates a woman who is or has been in domestic relationship with the respondent. The definition does not restrict it to the woman in her capacity as "wife" alone. In that very context, if the provisions of Section 21 of the Act of 2005 are examined then it would ipso facto reveal that locus to maintain such an application is that of an aggrieved person or the person making application on her behalf. Thus, by no stretch of imagination a respondent, may it be husband, can invoke Section 21 for seeking temporary custody orders or for a child or children or to seek visitation rights. The legislature in its wisdom has confined that right to an aggrieved person only and as per the scheme of the Act of 2005 a husband cannot fall within the definition of an aggrieved person. Section 8 of the Indian Penal Code defines "gender", which says, the pronoun "he" and its derivatives are used for any person, whether male or female. Therefore, if the legislation has used pronoun 'he', then it also embraces 'she' and not vice versa. Section 21 in this behalf is clear and unequivocal using the words "grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf", thus unquestionably restricts its invocation for an aggrieved person and not otherwise. Section 21 in this behalf is clear and unequivocal using the words "grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf", thus unquestionably restricts its invocation for an aggrieved person and not otherwise. In view thereof, I am unable to find any illegality or impropriety in the impugned order passed by appellate Court reversing the order passed by learned trial Court. 10. Consequently, revision petition fails and the same is hereby dismissed.