Delhi District Court
Ms. Aparna Choudhrie Kala vs Mr. Vaibhav Kala on 21 February, 2022
IN THE COURT OF SHRI ANIL KUMAR
ADDL. SESSIONS JUDGE -03 : SOUTH DISTRICT
SAKET COURT : NEW DELHI
CA No. 61/21
CNR no. DLST01-004719-2021
Date of Institution : 03.06.2021
1. Ms. Aparna Choudhrie Kala
Wife of Mr. Vaibhav Kala
D/o Late Mr. Inder P. Choudhrie
2. Ms. Ira Kala
D/o Ms. Aparna Kala and Mr. Vaibhav Kala,
Through her guardian, mother and next friend,
Ms. Aparna Choudhrie Kala
Both Residents of D-1/31, first floor,
Vasant Vihar, New Delhi. ... Appellants
Versus
Mr. Vaibhav Kala
S/0 Late Col. Pradeep Kala
R/o S-507. Ground Floor,
Greater Kailash-2, New Delhi-110048 ... Respondent
CA No. 64/21
CNR no. DLST01-004724-2021
Date of Institution : 05.06.2021
Mr. Vaibhav Kala ....Appellant
Versus
Ms. Aparna Choudhrie & Ors .....Respondents
CA No.104/21
CNR no. DLST01-008454-2021
Date of Institution : 29.10.2021
Mr. Vaibhav Kala ....Appellant
Versus
Ms. Aparna Choudhrie & Ors .....Respondents
CA no. 61/21, 64/21 and 104/21 Page no. 1 of 22
Arguments concluded on: 21.01.22
Judgment pronounced on: 21.02.22
JUDGMENT
1. Vide this common judgment I shall decide aforesaid three appeals filed u/s 29 of The Protection of Women from Domestic Violence Act, 2005. In these matters joint/common arguments has been addressed by Ld.Counsels for both the parties.
2. These three appeals involves the dispute regarding sharing of custody of the child namely Ira Kala and related issue between the wife and husband namely Aparna Choudhrie (Kala) and Mr.Vaibhav Kala (hereinafter referred as wife and husband respectively). CA no. 61/21 has been filed by wife on her and her daughter behalf who is in her custoday against order dated 01.06.2021 passed by Ld.Trial Court in Complaint Case No. 39263/2019 titled 'Aparna Choudhrie Kala and Anr Vs. Mr.Vaibhav Kala' filed by wife u/s 12 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as PWDV Act). CA no. 64/21 has been filed by the husband against his wife and minor daughter against order dated 31.5.2021 passed by Ld.Trial Court in aforesaid Complaint Case. CA no. 102/21 has been filed by the husband against his wife and minor daughter against order dated 12.10.21 passed by Ld.Trial Court in aforesaid Complaint Case.
3. Brief facts necessary for disposal of these appeal are that marriage between Vaibhav Kala and Aparna Choudhrie was solemnized on 15.4.12 and CA no. 61/21, 64/21 and 104/21 Page no. 2 of 22 out of this wedlock a daughter namely Ira was born on 31.8.13. Due to marital discord they started living separately since May 2017. Minor child was residing with her mother since separation of her parents except the period of the custody shared with husband with mutual consent. Husband and wife entered into a custody and access settlement in writing on 27.2.2020 but subsequently same failed and both the parties have blamed eachother for the same. Thereafter, wife filed a petition for divorce under Hindu Marriage Act before Family Court. Husband filed counter claim for divorce as well as an application u/s 26 of Hindu Marriage Act for equal share of custody of the child before the Family Court. Wife also filed aforesaid complaint case u/s 12 of PWDV Act before the Ld.Magistrate.
4. Impugned order dated 31.5.21 was passed by ld.Trial Court on an application filed by the husband u/s 23 of PWDV Act in aforesaid complaint case instituted by wife u/s 12 of PWDV Act. In this application u/s 23 of PWDV Act dated 18.5.21 but filed on 5.6.21 husband had sought equal sharing of the minor child Ira Kala during summer holidays i.e. 19.5.21 to 9.6.21 as well as access to child.
5. Impugned order dated 12.10.21 was passed by ld.Trial Court on an application filed by the husband u/s 21 & 23 of PWDV Act in aforesaid complaint case instituted by wife u/s 12 of PWDV Act. In this application u/s 21 & 23 of PWDV Act the husband had sought equal sharing (including overnight access) of the minor child Ira Kala during Dusshera Vacation between 13.10.21 to 20.10.21.
CA no. 61/21, 64/21 and 104/21 Page no. 3 of 22
6. Impugned order dated 1.6.21 was passed by ld.Trial Court on an application filed by the husband u/s 28 of PWDV Act in aforesaid complaint case instituted by wife u/s 12 of PWDV Act. In this application u/s 28 of PWDV Act the husband had sought clarification of order dt.31.5.21.
7. Relevant portion of impugned order dated 31.5.21 is reproduced as under:
"......
10. In view of the aforesaid case laws as relied upon by the respondent, the instant application moved on behalf of the respondent is maintainable qua the aspect that even the respondent/husband can claim relief under Section 21 of the PWDVA. It was contended on behalf of the complainant that though an application for temporary custody moved on behalf of respondent/husband may be maintainable under the provision of Section 21 of the PWDVA, however, in view of the fact that the respondent has already invoked the jurisdiction of the Ld. Family Court by filing an application under Section 26 of the HMA before the Ld. Family Court, the present application filed on behalf of respondent is not maintainable. The application under Section 26 of the HMA has been annexed along with the reply to the present application filed on behalf of complainant. The relief as sought before the Ld. Family Court is reproduced herein below. i. "Grant upon the Counter Claimant joint and shared custody of the parties' child Ira;
ii. Restore the child's access to the Counter Claimant on the same time-schedule as outlined in the Settlement Deed dated 27.02.2020;"
11. There can be no doubt with regard to the fact that the relief that can be obtained under Section 21 of the PWDVA is in the nature of temporary custody of the child while the provision of Section 26 of the HMA is not restricted to temporary custody and governs permanent custody of the child. Section 26 of the HMA reads as follows:
"26 Custody of children. In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such CA no. 61/21, 64/21 and 104/21 Page no. 4 of 22 decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made:
Provided that the application with respect to the maintenance and education of the minor children,pending the proceeding for obtaining such decree,shall, as far as possible, be disposed of within sixtydays from the date of service of notice on the respondent. "
12. A perusal of the above would clearly reveal that the Ld.Family Court is very well empowered to pass interim orders with respect to the custody of the child. Ld. Counsel for the complainant relied upon the case of Harsh vs Komal 2015 SCC OnLine Raj 193 wherein it was held that under Section 21 of the PWDVA, no independent remedy has been provided to seek custody of the minor child and jurisdiction has been conferred upon the magistrate to grant temporary custody of the child to the aggrieved person during the course of hearing of an application for grant of protection order, whereas, under the provisions of the FCA, any person can file an independent suit or proceeding in relation to the guardianship of the person or custody of or access to any minor. Ld. Counsel for complainant further relied upon the case of Amit Kumar & Ors vs Charu Maken Cri MC No.1755/2016 decide on 28.03.2017 by the Delhi High Court wherein it was held that the petitioner having already availed the remedy under the FCA and having lost in respect of the prayer made in the present petition cannot be permitted to continue with the remedy of interim custody. The court in the said case further relied upon the case of Payal Agarwal vs Kunal Agarwal 2014 SCC OnLine Raj 1227. The relevant portion reads as:
"Under section 21 of the Act 2005 independent remedy has not been provided to seek custody of the minor child and jurisdiction has been conferred on the Magistrate to grant temporary custody of such a child to the aggrieved person during the course of hearing of an application for grant of protection order or for any other relief under the provisions of Act whereas under the provisions of the Act of 1984 any person can file an independent suit or proceeding in relation to the guardianship of the person or custody of or access to any minor. Thus, the scope of Act of 1984 is much wider in comparison to Section 21 of the Act of 2005. As the nonobstante clause used in Section 21 of the Act of 2005 does not refer to any particular statute or provision or provisions of a particular statute and rather it is general in nature, the Court has to determine the scope of its use very strictly. The law is that when a non obstante clause is used in the aforesaid fashion, the extent of its impact has to be found out on the basis of consideration of the intent and purpose of insertion of such a clause. When a non obstante clause is used in such a blanket fashion the Court has to determine the scope of its use very strictly. Section 8 of the Act of 1984 confers exclusive jurisdiction upon the Family Court in relation to the suits and proceedings of the nature mentioned in explanation to Section 7 of CA no. 61/21, 64/21 and 104/21 Page no. 5 of 22 the Act. Although, Section 21 of the Act of 2005 also contains the non- obstante clause, but the same has limited application and despite being subsequent legislation it cannot have overriding effect on the Act of 1984. When both the enactments have the non obstante clause then in that case the proper perspective would be that one has to see the subject and dominant purpose for which the special enactment was made and in case the dominant purpose is covered by the contingencies, then notwithstanding that the Act might have come at a later point of time still the intention can be ascertained by locking to the objects and reasons. The Act of 1984 was specially meant for establishment of special Courts so that matters referred in explanation to Section 7 of the Act can be dealt by the special Courts established for that purpose whereas the object of enactment of the Act of 2005 was to protect the woman from being victim of the domestic violence and to prevent the occurrence of domestic violence in the society."
13. With regard to the aforesaid case laws relied upon by the complainant, it was contented on behalf of respondent that the factual matrices of Payal Agarwal (Supra) and Amit Kumar (Supra), differed materially from the present case in so far as in the said cases Ld. Family Court had already passed orders qua custody at the time of filing of applications under the PWDVA which were not disclosed by the applicant. Even when the said contention of the respondent is accepted, a reasonable question would arise in the mind of a prudent man that when the Ld. Family Court is already seized of the matter with respect to the custody of the minor child and from a perusal of the application filed before the Ld. Family Court and the present application, it appears that the present application has been moved on the basis of similar facts, then what prevented the respondent to approach the Ld. Family Court, to seek the relief of temporary custody. In fact, during the course of arguments, a query in this regard was put to the Ld. Counsel for the respondent for which no plausible explanation was offered.
14. The case laws relied upon by the parties talks about the various principles of law, however, the fact remains that the Ld. counsel for respondent has not been able to show any categorical authority/case laws which specifically states that when the matter is pending before the Ld. Family Court with respect to the custody of the minor child, the respondent can move an application under Section 21 of the PWDVA seeking interim custody. Although arguments at Jength has been advanced with respect to the non-obstante clause as mentioned both under Section 7 of the FCA and Section 21 of the PWDVA to argue that a non obstante clause would not automatically override a non obstante clause of subsequent legislation. The two proceedings initiated before two separate fora can co-exist notwithstanding that one was initiated prior in point of time. Ld. CA no. 61/21, 64/21 and 104/21 Page no. 6 of 22 Counsel for respondent also referred to the case of Parijat Vinod Kanetkar v. Malika Paruat Kanetkar, (2017) 2 Mah LJ 218 to contend that the jurisdiction of the Family Court under both the parts of Section 7 of the FCA do not cover the jurisdiction exercisable by the Magistrate in respect of grant of interim custody under Section 21 of the PWDVA and therefore there is no question of jurisdiction of the magistrate under Section 21 of the PWDVA being inconsistent with the provisions conferring jurisdiction upon the Family Courts and as such the FCA will not have any overriding effect upon the PWDVA. The relief available under the PWDVA are supplementary in nature and do not exclude similar reliefs available under the other laws. Resultantly, two proceedings initiated before two separate fora can co-exist notwithstanding that one was initiated prior in time.
15. Even the complainant has not filed any categorical authority/case laws which specifically states that the respondent cannot file an application under Section 21 of the PWDA for temporary custody when an application for permanent custody has been filed prior in point of time before the Ld. Family Court and the same is pending. Although arguments have been advanced at length by the complainant to show that a conjoint reading of Section 7, 8 and 20 of the FCA gives exclusivity to the Family Courts to decide with respect to the custody of the child when the jurisdiction of the Family Court has already been invoked with respect to the custody of the child.
16. Without further going into the aspect of maintainability of the present application, it is to be noted that the Ld. Family Court is already seized of the matter pertaining to the custody of the minor child and is well-equipped to decide the matter. The respondent did not move the Ld. Family Court with the present application and instead approached this court for reasons best known to the respondent. The respondent never disclosed filing of the application under Section 26 of the HMA before the Ld. Family Court on the ground that no final order with respect to the custody of the child has been passed in the said court. The matter in any way is sub-judice before the Ld. Family Court and therefore at this stage it cannot be ascertained as to the exact nature of proceedings that has happened before the Ld. Family Court and whether any interim relief has been pressed for before the said court. Therefore, in the facts and circumstances of the present case, respondent is granted liberty to move before the Ld. Family Court for availing remedy of temporary custody considering the fact that the jurisdiction of the Ld. Family Court with respect to the custody of the minor child has already been invoked by the Respondent.
17. 1n any case shifting the custody of the minor child from the custodial parent/complainant to non-custodial parent/respondent CA no. 61/21, 64/21 and 104/21 Page no. 7 of 22 considering the current situation due to second wave of COVID-19 pandemic may not be appropriate. This court is aware of the fact that vide Office Order No. R/RG/DHC/2021 dated 14.05.2021, the District Courts in Delhi will remain closed for Summer Vacation from 17" May 2021 to 3" June 2021 (both days inclusive) and availing any urgent relief before the Ld. Family Court would still take some time. This court is also conscious of the fact that even the non-custodial parent has the right to meet the child and any denial of this right would undermine the child's right to access both parents. Hence, in the interest of justice, it is deemed appropriate that in the interim certain visitation rights be granted to the respondent through electronic mode. Respondent is thus allowed to meet the minor child every day from 01.06.2021 till 09.06.2021 (both days inclusive) for one hour per day (during reasonable hours) through video call only under the supervision of the protection officer.
18. The application is disposed of accordingly. Copy of this order be sent via e-mail to the parties/advocates concerned and to the protection officer for compliance. Put up on date fixed.
(SD/-) MM-02 (Mahila Court), South Saket Courts/N.D./ 31.05.2021"
8. Impugned order dated 1.6.21 is reproduced as under:"CT Cases 39263/2019
APARNA CHOUDHRIE KALA AND ANR. Vs, VAIBHAV KALA (Haus Khas) 01.06.2021 This proceeding is through Video Conferencing on Cisco Webex.
Present: Sh. Prosenjeet Banerjee with Ms. Shreya Singhal, Ld. counsel for complainant with complainant.
Sh. Trideep Pias, Ld. Senior Advocate with Ms. Rakshanda Deka and Ms. Sanya Kuma, Ld. Counsels for respondent with respondent.
1. Vide office order no. 6R/RG/DHC/2021 dated 14.05.2021 of Hon'ble High Court of Delhi and circular no.Judl II/F.7/South/Saket/2021/8301-8362 dated 25.05.2021 of Ld. District & Sessions Judge, South, this matter is being taken up through video conferencing.
2. Asst. Ahlmad has reported that urgent application under Section 28, Protection of Women from Domestic Violence Act, 2005 (PWDVA) CA no. 61/21, 64/21 and 104/21 Page no. 8 of 22 seeking clarification of order dated 31.05.2021 received via e-mail on 31.05.2021.
3. By way of the said application, it is prayed that the visitation rights permitted vide order dated 31.05.2021 of this Court in the form of video calling be conducted directly by the respondent with the child without any supervision of the Protection Officer.
4. Heard. Perused.
5. At the outset, it is relevant to mention that the relief sought by respondent in the present application cannot be said to be in the nature of clarification rather it is in the nature of review as video call under the supervision of the protection officer is very much a part of order dated 31.05.2021 of this Court. Ld.Counsel for respondent made submissions in terms of the application so filed. Without going into the contents or merits of the application it appears that the grievance of the respondent is that the Protection Officer should not join the video call when he is conversing with his daughter.
6. Ld. Counsel for complainant submitted that he has no problem with order dated 31.05.2021 passed by this Court. However, upon query by this court, he submitted that if the Court deems fit then the Protection Officer may not join the video call provided the respondent does not record the video calls during his conversation with the minor child as the complainant has already moved an application stating that the previous recordings are dubious.
7. In the facts and circumstances of the case, it is deemed appropriate that the Protection Officer would supervise the video calls to be conducted between the respondent and the child but the Protection Officer would not be a part of the video call when there are conversations between the respondent and the child. With regard to the submission of the Ld. counsel for complainant that no video recording be done, this court at this stage does not deem fit to give any finding with respect to the same as in the past video recordings of the conversation between the respondent and the child has been filed.
8. It is clarified that supervision of Protection Officer for the purposes of visitation rights as stated vide order dated 31.05.2021 of this Court in the form of video calling still subsists with the only rider that the Protection Officer would not be in the video call when the respondent is having a conversation with his daughter.
9. The present application is disposed of in aforesaid terms.
CA no. 61/21, 64/21 and 104/21 Page no. 9 of 22
10.Copy of this order be sent via e-mail to the parties/ advocates concerned and to the protection officer for compliance. Put up on date fixed.
(Anuradha Prasad) MM-02 (Mahila Court), South Saket Courts/N.D./ 01.06.2021"
9. Impugned order dated 12.10.21 is reproduced as under:"CT cases no. 39263/2019
Aparna Choudharie Kala & Anr. vs. Vaibhav Kala & Anr. Hauz Khas 12.10.2021 Present: None.
Vide office order JudLI/I.7/South/Saket/2021/16056-16106 dated 01.10.2021 of Ld. Principal District & Sessions Judge, South, all the matters are being taken up through physical hearing.
1. Vide this order, the urgent application under Section 21 and Section 23 of The Protection of Women from Domestic Violence Act, 2005 (henceforth, "The Act") filed on behalf of respondent seeking the following relief as stated in paragraph no. 11 shall be disposed off:
"It is thus prayed that this Hon'ble Court immediately intervenes and directs equal sharing (including overnight access) of Ira's Dussehra vacation between 13.10.2021 - 20.10.2021."
2. The aforesaid application was contested on behalf of complainant by filing reply to the same.
3. This court has heard the submissions advanced by the Ld.Counsel for parties and carefully perused the record in light of the submissions so advanced.
4. At the outset, it is relevant to mention that a similar application has been earlier filed by the respondent for interim custody of the child with the only difference that earlier application was filed for equal sharing of the child during summer vacation ie., from 19.05.2021 to 09.06.2021 and the instant application for equal sharing of the child is for dussehra vacation between 13.10.2021 to 20.10.2021. The relief sought in the earlier application is reproduced herein below:
i. "pass an ad-interim ex-parte direction granting the Respondent a fair and equal share of the child's summer break, i.e., 19" May 2021 to 9 June 2021, as has been done in the past;
CA no. 61/21, 64/21 and 104/21 Page no. 10 of 22 ii. pass an ad-interim ex-parte direction allowing the respondent to immediately access the child and spent the remaining summer break with her; and iii. pass any other order(s) as maybe deemed fit by this Hon'ble Court in the facts and circumstances of the present case."
5. Vide order dated 31.05.2021, the said application was disposed off and the relevant paragraphs are reproduced herein below:
"13. With regard to the aforesaid case laws relied upon by the complainant, it was contented on behalf of respondent that the factual matrices of Payal Agarwal (Supra) and Amit Kumar (Supra), differed materially from the present case in so far as In the said cases Ld. Family Court had already passed orders qua custody at the time of filing of applications under the PWDVA which were not disclosed by the applicant. Even when the said contention of the respondent ts accepted, a reasonable question would arise in the mind of a prudent man that when the Ld. Family Court is already seized of the matter with respect to the custody of the minor child and from a perusal of the application filed before the Ld. Family Court and the present application, it appears that the present application has been moved on the basis of similar facts, then what prevented the respondent to approach the Ld. Family Court, to seek the relief of temporary custody. In fact, during the course of arguments, a query in this regard was put to the Ld. Counsel for the respondent for which no plausible explanation was offered.
16. Without further going into the aspect of maintainability of the present application, it is to be noted that the Ld. Family Court is already seized of the matter pertaining to the custody of the minor child and is well- equipped to decide the matter. The respondent did not move the Ld. Family Court with the present application and instead approached this court for reasons best known to the respondent. The respondent never disclosed filing of the application under Section 26 of the HMA before the Ld. Family Court on the ground that no final order with respect to the custody of the child has been passed in the said court. The matter in any way 1s sub-judice before the Ld. Family Court and therefore at this stage it cannot be ascertained as to the exact nature of proceedings that has happened before the Ld. Family Court and whether any interim relief has been pressed for before the said court.Therefore, in the facts and circumstances of the present, respondent is granted liberty to move before the Ld.Family Court for availing remedy of temporary custody considering the fact that the jurisdiction of the Ld. Family Court with respect to the custody of the minor child has already been invoked by the Respondent.
17. In any case shifting the custody of the minor child from the custodial parent/complainant to non-custodial parent/respondent considering the current situation due to second wave of COVID-19 pandemic may not be appropriate. This court is aware of the fact that vide Office Order No. R/RG/DHC/2021 dated 14. 05.2021, the CA no. 61/21, 64/21 and 104/21 Page no. 11 of 22 District Courts in Delhi will remain closed for Summer Vacation from 17th May 2021 to 3rd June 202! (both days inclusive) and availing any urgent relief before the Ld. Family Court would still take some time. This court is also conscious of the fact that even the non- custodial parent has the right to meet the child and any denial of this right would undermine the child's right to access both parents. Hence, in the interest of justice, it is deemed appropriate that in the interim certain visitation rights be granted to the respondent through electronic mode. Respondent is thus allowed to meet the minor child every day from 01.06.2021 till 09.06.2021 (both days inclusive) for one hour per day (during reasonable hours) through video call only under the supervision of the protection officer."
6. It is to be noted that order dated 31.05.2021 is in appeal and the Ld. Appellate Court has still not given any finding with respect to order dated 31.05.2021 passed by this court. Pending the appeal, the respondent approached the Ld. Appellate Court with the prayer of custody order for the period of upcoming dussehra vacation. The Ld. Appellate Court vide order dated 05.10.2021 granted liberty to the respondent to approach the Trial Court for fresh custody/ sharing of custody as per law. Hence, the respondent approached this court.
7. It is pertinent to mention here that the present application is yet another application interim custody, hence, the findings of this court in the earlier application for interim custody of the child as decided vide order dated 31.05.2021 becomes relevant. Vide order dated 31.05.2021, it has been noted that the Ld. Family Court is already seized off the matter pertaining to the custody of the minor child and is well equipped to decide the matter. Vide the said order, it was observed that the matter is subjudice before the Ld. Family Court and liberty was granted to the respondent to move before the Ld. Family Court for availing remedy for temporary custody considering the fact that the jurisdiction of Ld. Family Court with respect to custody of minor child has already been invoked by the respondent. Vide paragraph no. 17 of the said order certain visitation right was granted to the respondent through electronic mode considering the fact that availing any urgent relief before the Ld. Family Court would still take some time. Despite the liberty granted to move before the Ld. Family Court in the month of May 2021, the respondent did not approach the Ld. Family Court for interim custody of the child instead approached the Ld. Appellate Court challenging the order dated 31.05.2021. Order dated 31.05.2021 passed by this court stands as on date and same has not been modified by the Ld. Appellate Court.
8. The instant application also pertains to interim custody of the child and during the course of arguments, Ld.Counsel for respondent submitted that the respondent is able to access the child occasionlly with the consent of complainant and at times the respondent is also able to spend 5-6 hours with the child but there is no overnight stay. During the course of the arguments through video conferencing, CA no. 61/21, 64/21 and 104/21 Page no. 12 of 22 Ld.Counsel for respondent has also shown the photograph of respondent and the child spending time together.
9. Considering the fact that the child does meet the respondent, order dated 31.05.2021 is under challenge and is pending before the Ld. Appellate Court, there is no finding by the Ld. Appellate Court with respect to order dated 31.05.2021 and the fact that during the course of arguments, counsel for respondent has not been able to give any plausible explanation as to why the respondent did not move before the Ld. Family Court despite a categorical finding vide order dated 31.05.2021 of this court, no visitation rights can be granted at this stage.
10, The application is disposed off accordingly.
11.Copy of the ordersheet be given dasti to the parties.
12.Put up for arguments on interim application u/s 23 of D.V. Act on 16.10.2021.
(Anuradha Prasad) MM-02 (Mahila Court), South Saket Courts/N.D./ 12.10.2021"
10. I have heard at length Ld. Counsel for both the parties and given my thoughtful consideration to their respective submission. During the course of arguments they have referred and relied on bunch of judgments.
11. Ld. Counsel for wife has submitted that main relief sought in the appeal by the husband is not maintainable in Section 21 of the DV Act as no man or respondent under the DV Act can claim any relief. Relying upon the judgment 'Mohit Mehta Vs. Nainika Thakur' passed by Delhi High Court in TR.P.(Crl)30/2019 he has submitted that a husband cannot invoke the remedy u/s 18-21 of the DV Act and only a women / aggrieved person can invoke such remedy. He has further submitted that a bare perusal of Section 21 of DV Act itself shows that a provision is made for any arrangements for visit of such child by the husband only in an order of interim custody granted to the women u/s 21 of DV Act and the man has no independent right to seek such relief when interim custody has not been decided. He has further submitted that the husband has admittedly already invoked the jurisdiction of Family CA no. 61/21, 64/21 and 104/21 Page no. 13 of 22 Court u/s 26 of Hindu Marriage Act in respect of identical relief prior to moving to the Court of Ld.MM and hence same ousts jurisdiction of Ld MM Court as Family Court is presided over by a Judicial Officer of senior position in the Judicial hierarchy. Ld. Counsel for wife has further stated that while moving the Court of Ld MM the husband willfully and mischievously did not disclose the filing of the application included identical relief before the Family Court and this conduct amounts to willful suppression of material facts and dis-entitle the husband for any relief. It is further stated that conduct and character of the husband dis-entitle him from having interim custody or sharing of custody because same will be contrary to the child welfare. The welfare of the child has not been priority of the father and the father's present attempt is therefore only to use the child as a pawn to browbeat and intimidate the mother from asserting her right. He has further submitted that order challenged in the appeal filed by husband suffers from no illegality and these both appeals should be dismissed. On appeal filed by wife he has stated that supervisory visitation granted by Ld Trial Court vide order dt.31.5.21 should have not been disturbed / clarified by the Ld.Trial Court vide impugned order dt.1.6.21 and direction of supervision by the protection officer of the video calls between husband and the child as per order dt.31.5.21 should be restored.
12. Ld.Counsel for husband has submitted that wife raised a preliminary objection on the maintainability of the application filed by husband u/s 21 of PWDV Act during the pendency of an application u/s 26 of Hindu Marriage Act, 1995 and Ld.Trial Court vide impugned order, without deciding the question of maintainability or adequately appreciating the factual matrix, granted the husband liberty to approach the Family Court holding that the Ld.Family Court was seized off the matter and well equipped to decide the CA no. 61/21, 64/21 and 104/21 Page no. 14 of 22 application. He has further submitted that impugned orders are erroneous and liable to be set aside. He has further submitted that husband has an independent and standalone right to seek visitation under Section 21 of the PWDV Act. A denial of this right would effectively leave the father remediless in the event an aggrieved person does not invoke the Magistrate's jurisdiction under Section 21 and undermine the child's right to access both parents. In support of his contention he has relied upon judgments 'Payal Sudeep Laad v. Sudeep Govind Laad & Ors', 2019 (1) BomCR (Cri) 579 and 'Huidrom Ningol Maibam Ongbi Omila Devi v. Inaobi Singh Maibam', 2017 Cri LJ 659. He has further stated that Ld. MM rightly recognized the existence of this standalone right under Section 21. He has further stated that wife's contention that Payal Sudeep Laad and Huidrom are to be ignored by this Hon'ble Court in that they purportedly fail to take into account the Statements of Objects and Reasons of the DV Act is erroneous and without any basis in law. He has further stated that quite apart from the fact that it is settled law that the Statement of Objects and Reasons is not admissible as an aid of construction and only provide reasons which induced the legislature to pass a given statute in interpreting Section 21, DV Act while keeping in view the best interest and the welfare of the child, who also comes under the ambit of an aggrieved person, both Laad and Huidrom in fact further the ends of the statute. He has further stated that question that then arises is whether an application under Section 21, DV Act is maintainable notwithstanding the pendency of an application under Section 26, HMA before the Ld. Family Court. It is further submitted that the jurisdiction of the Ld. MM cannot be said to be ousted merely due to the pendency of an application under Section 26, HMA before the Ld. Family Court. It is further submitted that the Ld. Family Court's jurisdiction under Sections 7 and 8 of the Family Courts Act is not exclusive and the same is also evident from the fact that Section 36 of the DV Act categorically states that CA no. 61/21, 64/21 and 104/21 Page no. 15 of 22 the remedies under the DV Act are in addition to, and not in derogation of provisions of any other law. He has further stated that the relief available to the Appellant under Section 21, DV Act is in addition to the statutory remedy available under Section 26, HMA. Ld.Counsel for husband has further stated that wife has refused to share the child's summer vacation and Dusshera break equally with the appellant despite the same having being practiced since their separation without any rhyme or reason and the wife has actively tortured the child while blocking the appellant's access and caused undue parental alienation and that best interest and welfare of the child necessitates that the husband's access to the child be restored and compensatory access/custody in lieu of summer and Dusshera vacations, 2021 be given to the husband by allowing the appeals filed by husband.
13. In Yashita Sahu Vs. State of Rajasthan (2020)3SCC67, Hon'ble Supreme Court of India has stated as under:
22. A child, especially a child of tender years requires the love, affection, company, protection of both parents. This is not only the requirement of the child but is his/her basic human right. Just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents. A child is not an inanimate object which can be tossed from one parent to the other. Every separation, every reunion may have a traumatic and psychosomatic impact on the child. Therefore, it is to be ensured that the court weighs each and every circumstance very carefully before deciding how and in what manner the custody of the child should be shared between both the parents. Even if the custody is given to one parent the other parent must have sufficient visitation rights to ensure that the child keeps in touch with the other parent and does not lose social, physical and psychological contact with any one of the two parents. It is only in extreme circumstances that one parent should be denied contact with the child. Reasons must be assigned if one parent is to be denied any visitation rights or contact with the child. Courts dealing with the custody matters must while deciding issues of custody clearly define the nature, manner and specifics of the visitation rights.
CA no. 61/21, 64/21 and 104/21 Page no. 16 of 22
23. The concept of visitation rights is not fully developed in India.
Most courts while granting custody to one spouse do not pass any orders granting visitation rights to the other spouse. As observed earlier, a child has a human right to have the love and affection of both the parents and courts must pass orders ensuring that the child is not totally deprived of the love, affection and company of one of her/his parents.
24. Normally, if the parents are living in the same town or area, the spouse who has not been granted custody is given visitation rights over weekends only. In case the spouses are living at a distance from each other, it may not be feasible or in the interest of the child to create impediments in the education of the child by frequent breaks and, in such cases the visitation rights must be given over long weekends, breaks, and holidays. In cases like the present one where the parents are in two different continents effort should be made to give maximum visitation rights to the parent who is denied custody.
25. In addition to 'Visitation Rights', 'Contact rights' are also important for development of the child specially in cases where both parents live in different states or countries. The concept of contact rights in the modern age would be contact by telephone, email or in fact, we feel the best system of contact, if available between the parties should be video calling. With the increasing availability of internet, video calling is now very common and courts dealing with the issue of custody of children must ensure that the parent who is denied custody of the child should be able to talk to her/his child as often as possible. Unless there are special circumstances to take a different view, the parent who is denied custody of the child should have the right to talk to his/her child for 510 minutes everyday. This will help in maintaining and improving the bond between the child and the parent who is denied custody. If that bond is maintained the child will have no difficulty in moving from one home to another during vacations or holidays. The purpose of this is, if we cannot provide one happy home with two parents to the child then let the child have the benefit of two happy homes with one parent each."
14. In view of aforesaid judgment of Hon'ble Supreme Court of India it is clear that custody right, sharing of custody, visitation rights and contact right are all different to eachother.
15. Impugned orders dt.31.5.21 and 12.10.21 were passed by Ld Trial Court on applications moved by the husband for equal sharing of summer vacation and Dusshera Vacations. In application in regard to summer vacation CA no. 61/21, 64/21 and 104/21 Page no. 17 of 22 filed u/s 23 of PWDV Act husband made prayer to pass an exparte direction granting the husband a fair and equal share of child's summer break and also to allow the husband to immediate access to child and spend remaining summer break with her. In other application he sought equal sharing of Dusshera vacations.
16. Section 21 of The Protection of Women from Domestic Violence Act, 2005 reads as under:
"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."
17. Section 2(a) of PWDV Act reads as under:
(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;
18. Statement of aim and objects of PWDV Act reads as under:
"An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and formatters connected therewith or incidental thereto.
......It covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, relationships with family members living together as a joint family are also included. Even those women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation. However, whereas the Bill enables the wife or the female living in a relationship in the nature of marriage to CA no. 61/21, 64/21 and 104/21 Page no. 18 of 22 file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the make partner to file a complaint against the wife or the female partner.
.....It defines the expression 'domestic violence' to include actual abuse or threat or abuse that is physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition. ....It provides for the rights of women to secure housing. It also provides for the right of a women to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate.
..... It empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the aggrieved person, attempting to communicate with her, isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide her assistance from the domestic violence".
19. From the object and reason and the definition of the aggrieved person it is clear that PWDV Act has been enacted by Parliament for protection of right of Women who are victim of violence of any kind occurring within the family and for the matter connected therewith of incidental thereto.
20. Ld.Counsel for husband has taken the plea that the father has independent right to file an application u/s 21 of PWDV Act, 2005 even in the absence of an application for temporary custody by the aggrieved women/wife. In support of his contention Ld. Counsel for husband has relied upon judgment Payal Sudeep Laad Vs. Sudeep Govind Lal(Supra) and 'Huidrom Ningol Maibam Ongbi Omila Devi Vs. Inaobi Singh Maibam', (Supra).
CA no. 61/21, 64/21 and 104/21 Page no. 19 of 22
21. I have gone through the aforesaid both judgments relied upon by Ld. Counsel for husband. These judgments speaks about independent right of the husband u/s 21 of PWDV Act for visitation. I find that in the facts and circumstances of the case, these judgments are of no assistance to the husband. In these judgments application was filed by the husband before Magistrate for visitation rights but in the case in hand application was filed by the husband for equal sharing of vacations that means for sharing of custody temporarily pending prior in time filed application u/s 26 of Hindu Marriage Act qua identical relief before higher forum i.e. Family Court. Section 21 of PWDV Act recognize only visitation right of the husband and not right of sharing of custody.
22. Ld. Counsel for husband has taken further plea that parallel proceedings for temporary custody and visitation can proceed before the Ld.Magistrate under the PWDV Act and the Ld.Family Court under The Family Courts Act, 1994 in view of Sections 7,8 & 20 of that Act r/w Sec.20,26 and 36 of The PWDV Act. In support of this contention Ld.Counsel for husband has relied upon judgment 'Parijat Vinod Kanetkar Vs. Malika Paruat Kanetkar',(2017)2MahLJ218.
23. I have gone through the judgment Parijat Vinod Kanetkar Vs. Malika Paruat Kanetkar (Supra), I find that this judgment also of no help to husband. In this judgment wife had filed an application u/s 21 of PWDV Act for interim custody of the child who was under the custody of husband and Ld.Magistrate allowed this application and granted interim custody to wife. This order was upheld by the Session Court as well as Hon'ble High Court. One of the issue decided in that case is that whether after establishment of CA no. 61/21, 64/21 and 104/21 Page no. 20 of 22 Family Court, whether wife could file the application for interim custody u/s 21 of PWDV Act before the Ld.Magistrate. This question was answered by Hon'ble Court in affirmative. In the case in hand, the question is not that can wife file application but application was filed before the Ld.Magistrate u/s 21 of PWDV Act by the husband. Hence, this judgment is not of any assistance to husband.
24. In view of aim and objects of PWDV Act and Section 21 of PWDV Act it is clear that Section 21 does not confer any right upon the husband to seek sharing of custody or interim custody of child from wife during the pendency of identical claim before higher forum, hence, applications filed by the husband Section 21 or 23 of PWDV Act are not maintainable.
25. As far as issue regarding parallel proceedings of custody is concerned that I find that this issue is not relevant in these appeals once it has been found that husband has no right to seek sharing of the custody u/s 21 or 23 of PWDV Act.
26. During the course of arguments Ld. Counsel for both the took this Court through various judgments as well as video, email and whatsapp chat made to show that husband is entitled or not entitled for sharing of custody on the ground of welfare of child. Since this Court has stated above to the effect that relief sought by husband before the Ld.Magistrate is beyond the purview of Section 21 or 23 of PWDV Act and identical prayer i.e. sharing of custody etc is pending adjudication before the Family Court, hence, I refrain myself from commenting anything on the factual merits of the case.
CA no. 61/21, 64/21 and 104/21 Page no. 21 of 22
27. In view of above observation, I find that impugned order dt.31.5.21 and 12.10.21 call for no interference. Appeal bearing no.64/2021 and appeal no.104/2021 filed by husband are dismissed.
28. Impugned order dt.12.10.21 is related to supervision of visitation granted to husband vide order dt.31.5.21. Husband was granted visitation from 1.6.21 to 9.6.21 under the supervision of Protection Officer. Since period of visitation has already expired long back, hence, nothing survives in the appeal filed by the wife. Hence, appeal bearing no.61/2021 is dismissed as become infructuous.
Appeals files be consigned to record room after due compliance. Copy of this common judgment be sent to Ld.Trial Court.
Announced in open Court on 21.2.22.
(Anil Kumar)
Addl. Sessions Judge-03(South)
Saket Courts/New Delhi/21.2.22
CA no. 61/21, 64/21 and 104/21 Page no. 22 of 22