Delhi District Court
Kanhiya Goyal vs Priyanka Goyal on 8 November, 2024
IN THE COURT OF SHRI ARVIND BANSAL
ADDL.SESSIONS JUDGE - 05 (SHAHDARA DISTRICT)
KARKARDOOMA COURTS : DELHI
Criminal Appeal No. 222/2024
In the matter of:
Kanhiya Goyal
s/o Shri Suresh Goyal
r/o Flat No.165, Vikas Sheel Apartment,
Sector-13, Rohini, Delhi.
..........Appellant
Vs.
Priyanka Goyal
d/o Shri Rajesh Garg
w/o Shri Kanhaiya Goyal
r/o C-151, West Vinod Nagar, Delhi.
..........Respondent
Date of Institution : 27.09.2024
Reserved on : 29.10.2024
Announced on : 08.11.2024
JUDGMENT
1. Vide this judgment, the Court shall decide instant Appeal filed by appellant/husband u/s 29 of Prevention of Women from Domestic Violence Act, 2005 (hereinafter referred as 'DV Act') against impugned order dated 11.09.2024 of Ld. Trial Court in a case titled 'Priyanka vs. Kanhaiya Goyal', CT No. 792/2024 thereby deciding an application u/s 21 of DV Act regarding custody of minor child moved by respondent/wife, permitting the custody of minor child in her favour from'Thursday to Sunday' of every week and from 'Sunday evening to Thursday evening' in favour of appellant/husband.
ARVIND Digitally signed by
ARVIND BANSAL
BANSAL Date: 2024.11.08
15:27:57 +0530
Kanhiya Goyal vs. Priyanka Goyal
Page 1 of 7
2. On receipt of appeal, after transfer to this Court vide order of Ld. Principal District & Sessions Judge, Shahdara , notice thereof was issued to respondent/wife who appeared in compliance thereof on 04.10.2024. Reply to the present appeal was filed on behalf of respondent on 22.10.2024. Thereafter, arguments of both the parties were heard. Meanwhile, on 27.09.2024, this Court while taking note of the factum of existing custody of child with appellant/husband and considering the interest/welfare of the child, stayed the operation of impugned order till further orders.
3. Succinctly stated, it is the case of appellant/husband that marriage between appellant and respondent was solemnized on 21.02.2019 and out of the said wedlock, a male child namely Master 'H' was born on 17.07.2020. It is the case that respondent has filed another complaint against appellant/husband before CAW Cell, Patparganj where she handed over custody of Master H' to appellant/husband out of her own will in the presence of her parents on 28.06.2024. It is asserted that the child continued to stay in the custody of appellant/husband since 28.06.2024. It is submitted that respondent malafidely moved an application u/s 21 DV Act before Ld. Mahila Court seeking custody of the minor child during the pendency of petition u/s 12 of DV Act. After hearing both the parties and interacting with the child, Ld. Mahila Court passed the impugned order directing the handing over the custody of the child to respondent/wife every Thursday after school hours till Sunday of every week, and she shall hand over the custody to appellant/husband on every Sunday by 06:00 pm at his house. Aggrieved by the said order, appellant/husband Kanhiya Goyal vs. Priyanka Goyal ARVIND Digitally signed by ARVIND BANSAL Page 2 of 7 BANSAL Date: 2024.11.08 15:28:04 +0530 is before this Court seeking setting aside of the order.
4. The present appeal has been filed on the following grounds:
(a) that Ld. Trial Court failed to consider the true facts of the case and passed the order without application of judicial mind;
(b) that Ld. Trial Court failed to appreciate the preference of child himself, who during interaction with Ld. Presiding Officer, stated 'Papa ke pas rehna hai';
(c) that the impugned order was passed without taking note of the best interest of the mental, social and physical development of the child who is currently studying in a school near the house of appellant/husband while respondent/wife is staying about 35 kms away from the school;
(d) that such exchange of custody of child every week would disturb the mental focus from the family as well as studies;
(e) that respondent/wife has given birth to another child on 04.09.2024 and she may not be able to take best care of this child 'H' in such health condition; &
(f) that Ld. Trial Court failed to appreciate that allegation of kidnapping etc., of the child are baseless and false.
Ld. Counsel for appellant/husband reiterated the Kanhiya Goyal vs. Priyanka Goyal Page 3 of 7 ARVIND Digitally signed by ARVIND BANSAL BANSAL Date: 2024.11.08 15:28:10 +0530 aforesaid grounds during arguments.
5. It is the argument of Ld. Counsel for respondent/wife that both the parties were residing together till 06.04.2024 when respondent was forced to leave the company of appellant/husband. It is stated that it is after this separation that respondent/wife preferred a petition u/s 12 DV Act on 01.06.2024 and also filed a complaint at CAW Cell for the torture and domestic violence meted out to her. It is the argument that Ld. Trial Court considered the interest and welfare of the child and decided the custody to be given to both the parents by rotation. It is submitted that the impugned order shall provide an opportunity to both the parents to stay with the child and vice- versa . It is also stated that mere visitation rights would not serve the required purpose as on an early occasion on 07.07.2024 when respondent/wife went to her matrimonial home to meet the child, she was beaten. It is argued that in the facts and circumstances of the case, the impugned order be sustained and there is no necessity of any modification therein. He requested the Court to dismiss the present appeal.
6. Submissions heard. Record perused.
7. Before appreciating the facts and circumstances of the case, it is imperative to peruse and reproduce Sec. 21 of DV Act dealing with the judicial power of Ld. Mahila Court regarding the custody of any child. Sec. 21 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 Kanhiya Goyal vs. Priyanka Goyal Page 4 of 7 ARVIND Digitally signed by ARVIND BANSAL BANSAL Date: 2024.11.08 15:28:17 +0530 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."
Further, on Hon'ble Delhi High Court while dealing with a custody matter under DV Act in case titled 'Amit Kumar vs. Charu Makin' (decided on 28.03.2017) observed as under:
"10. It is thus evident that notwithstanding anything contained in any other law as an interim measure in the best interest of the child and to avoid any harm to the interest of the child/children, the Court under Section 21 of the PWDV Act can pass order granting temporary custody of the child/children and/or make necessary arrangements for the visit of the child. However, PWDV Act is not a final remedy for the custody and guardianship issues of a minor child. Section 7 (g) of the Family Courts Act, 1984 vests jurisdiction in a Family Court to decide suits or proceedings in relation to the guardianship of a person or the custody of or access to any minor. ...
11. 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 non- obstante 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 Kanhiya Goyal vs. Priyanka Goyal Page 5 of 7 ARVIND Digitally signed by ARVIND BANSAL BANSAL Date: 2024.11.08 15:28:25 +0530 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 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 looking 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."
(underlining added)
8. In the light of available statutory provision and the aforesaid precedent, it is more than explicit that Sec.21 of DV Act only provides for a limited remedy of temporary custody of the child or visitation right to the aggrieved person. The concerned Court, while exercising in jurisdiction u/s 21 of DV Act cannot disturb the status of existing custody of the minor child unless the same is harmful to the interest of the child. In the present case, the minor child 'H' was admittedly in the continuous custody of appellant/husband since 28.06.2024 when the same was allegedly handed over to him by respondent/wife. The said continuous custody appears to have been bifurcated Kanhiya Goyal vs. Priyanka Goyal Page 6 of 7 ARVIND Digitally signed by ARVIND BANSAL BANSAL Date: 2024.11.08 15:28:31 +0530 amongst the parents by the impugned order.
In the opinion of this Court, the handing over of custody of the minor child 'H' to respondent/wife for three days a week, goes beyond the mandate of Sec. 21 of DV Act which permits the relief only of temporary custody or right of visitation. Ld. Mahila Court cannot overreach its jurisdiction to conclusively decide the aspect of custody of the minor child, an issue which falls within the competent jurisdiction of Ld. Family Court, as observed by Hon'ble Delhi High Court in Amit Kumar (supra).
9. Having considered the rival submissions of both the parties in the light of available material, this Court is of the opinion that impugned order dated 11.09.2024 has decided the issue of custody of minor child 'H' beyond the settled limited statutory relief of 'temporary custody' or 'visit of the child' and therefore, must be set aside. Accordingly, it is ordered that the custody of minor child 'H' shall remain unaltered and with the appellant/husband subject to any change or modification in the custody pursuant to order of any superior Court or Court of competent jurisdiction.
10. Ordered accordingly.
Dictated and announced in the open
Court on 08.11.2024. ARVIND Digitally signed by
ARVIND BANSAL
BANSAL Date: 2024.11.08
15:28:40 +0530
(ARVIND BANSAL)
Additional Sessions Judge-05 (Shahdara) Karkardooma Courts, Delhi.
Kanhiya Goyal vs. Priyanka Goyal Page 7 of 7