Kerala High Court
Hasna vs Nisar on 5 November, 2021
Author: M.R.Anitha
Bench: M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
OP(CRL.) NO. 81 OF 2021
AGAINST THE ORDER/JUDGMENT IN CRA 171/2020 OF DISTRICT COURT & SESSIONS
COURT,KOZHIKODE, KOZHIKODE
MC 43/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,THAMARASSERY,
KOZHIKODE
PETITIONER/APPELLANT/APPLICANT:
HASNA
AGED 26 YEARS
D/O. MUHAMMED KUNHI, AAKOTTUCHALIL,
MALAMKUNNU, MUKKOM P.O., KOZHIKODE DISTRICT,
PIN-673602.
BY ADVS.
MATHEW KURIAKOSE
J.KRISHNAKUMAR (ADOOR)
MONI GEORGE
PRATHEESH MOHAN
RESPONDENTS/RESPONDENTS/RESPONDENTS & STATE:
1 NISAR
AGED 35 YEARS
S/O.MOIDEENKUTTY, AAKOTTUCHALIL, ALLY P.O.,
MUKKOM, KOZHIKODE DISTRICT, PIN-673002.
2 MOIDEENKUTTY,
AGED 55 YEARS
S/O. MAYINKUTTY, AAKOTTUCHALIL, ALLY P.O.,
MUKKOM, KOZHIKODE DISTRICT, PIN-673002.
3 MARIYA,
AGED 50 YEARS
W/O. MOIDEENKUTTY, AAKOTTUCHALIL, ALLY P.O.,
MUKKOM, KOZHIKODE DISTRICT, PIN-673002.
4 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
BY ADVS. SMT.T.RASINI
SRI.M.MUHAMMED SHAFI
PP SANGEETHARAJ N.R
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 05.11.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(CRL).NO.81 OF 2021
-2-
JUDGMENT
This original petition has been filed against the order in C.M.P.No.670/2020 in Crl.A.No.171/2020 of the Sessions Court, Kozhikode.
2. The petitioner filed M.C.No.43/2019 before the Judicial First Class Magistrate Court-II, Thamarassery under Section 12 of Protection of Women from Domestic Violence Act, 2005 (in short 'the DV Act'). In that petition, she had filed C.M.P.No.3794/2019 under Section 21 read with Section 23(2) of the Act, seeking for interim custody of the minor child. By Ext.P4 order, the learned Magistrate dismissed the petition. Against which the petitioner filed Crl.A.No.171/2020 before the District and Sessions Court, Kozhikode along with a delay condonation petition C.M.P.No.670/2020 for condoning the delay of 72 days. By Ext.P7 order, the learned Sessions Judge dismissed the delay condonation petition and consequently, the appeal also dismissed. Aggrieved by the same, the petitioner came up before this Court by filing this original petition.
3. The learned counsel for the petitioner submitted that the petitioner had seen the child in July 2019. Thereafter, she had OP(CRL).NO.81 OF 2021 -3- no occasion to see the child.
4. The learned counsel for the respondent would contend that she left the company of the husband and the child and is living with another man.
5. At the time of argument, it is conceded by both sides that there is no delay in view of the directions of the Apex Court as well as this Court due to Covid 19 pandemic, since limitation admittedly had been stated from 12.04.2020.
6. Head both sides.
7. The finding of the learned Sessions Judge is that the Family Court is the competent authority to decide the question of interim custody of the child. It is further found that since there is a Forum to get remedy in considering the interim custody of the child, the delay in filing the appeal is not condoned. Consequently appeal also dismissed.
8. The provisions under Section 21 of the DV Act for seeking interim custody and the power of the Magistrate to grant interim custody provided under Section 21 is independent of the provisions of the Guardians and Wards Act. It is a remedy provided under the DV Act to the aggrieved person who approaches the Magistrate seeking various relieves provided under that Statute. OP(CRL).NO.81 OF 2021 -4-
9. As per the dictum laid down in Dhavai Rajendrabhai Soni vs. Bhavani Dhavalbhai Soni and others (2012 KHC 2303) by the Gujrat High Court, even during the pendency of the proceedings under Guardians and Wards Act, the learned Magistrate can pass temporary orders for temporary custody under Section 21 of the DV Act. So, the impugned order passed by the Sessions Judge finding that the Family Court is the proper Forum for granting interim custody is illegal and perverse. Hence, it is liable to be set aside.
In the result, this original petition is allowed and the Sessions Court, Kozhikode is directed to consider Crl.A.No.171/2020 on merit. The learned counsel for the petitioner pressed for interim custody of the child in view of the fact that the petitioner is the mother of the child and has not seen the child since 29.07.2019. Parties can agitate their claim with regard to the interim custody before the Sessions Court.
Sd/-
M.R.ANITHA JUDGE nkr OP(CRL).NO.81 OF 2021 -5- APPENDIX OF OP(CRL.) 81/2021 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE COMPLAINT IN M.C.NO.43 OF 2019 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, THAMARASSERY.
EXHIBIT P2 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENTS IN M.C.NO.43 OF 2019 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, THAMARASSERY.
EXHIBIT P3 TRUE COPY OF THE CMP NO.3794 OF 2019 IN M.C.NO.43 OF 2019 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, THAMARASSERY. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 12.3.2020 IN CMP NO.3794 OF 2019 IN M.C.NO.43 OF 2019 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, THAMARASSERY.
EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT AND APPLICATION IN CMP NO.670 OF 2020 IN CRL.A.NO.171 OF 2020 ON THE FILES OF THE SESSIONS COURT, KOZHIKODE. EXHIBIT P6 TRUE COPY OF THE MEMORANDUM OF APPEAL IN CRL.A.NO.171 OF 2020 ON THE FILES OF THE SESSIONS COURT, KOZHIKODE.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 24.8.2020 IN CMP NO.670 OF 2020 IN CRL.A.NO.171 OF 2020 ON THE FILES OF THE SESSIONS COURT, KOZHIKODE. EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 24.8.2020 IN CRL.A.NO.171 OF 2020 ON THE FILES OF THE SESSIONS COURT, KOZHIKODE.
Exhibit P9 TRUE COPY OF THE INVITATION LETTER FOR THE WEDDING CELEBRATION OF PETITIONER'S SISTER AMEERA