Himachal Pradesh High Court
Sandeep Kumar Thakur vs Madhubala on 2 September, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MMO No. 206/2016
Reserved on: 2.8.2016
Decided on: 2.9.2016
.
Sandeep Kumar Thakur ....Petitioner
Versus
Madhubala ....Respondent
of
Coram:
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
rt
Whether approved for reporting?1 Yes
_________________________________________________________________
For the petitioner: Mr. Subhash Sharma, Advocate.
For the respondent: Mr. Pankaj Chauhan, Advocate.
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Per Rajiv Sharma, Judge:
This petition is instituted against the impugned order dated 23.3.2016 rendered by learned Sessions Judge, Una, H.P., in Criminal Appeal Nos. 70/2015 and 71/2015.
2 The key facts necessary for the adjudication of the petition are that the marriage between the parties was solemnized as per Hindu rites and customs and out of the wedlock, a male child was born. The respondent filed an application under Sections 12, 17, 18, 19, 20, 22 and 23 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the "Act" for brevity sake) against the 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 21:09:14 :::HCHP -2- petitioner and his mother, Rupindera Devi. The application was contested by the petitioner. During the pendency of the aforesaid application, the petitioner also filed an application seeking permission .
to meet his minor son, Ayudeep, who was in the custody of respondent.
The application was contested by the respondent. The learned Judicial Magistrate, 1st Class allowed the application vide order dated 26.10.2015. Feeling aggrieved with the order dated, 26.10.2015, the of respondent filed an appeal (Cr. Appeal No.70/2015), whereas the petitioner also filed an appeal (Cr.Appeal No.71/2015). The learned Sessions Judge while allowing the appeal preferred by the respondent rt dismissed the appeal preferred by the petitioner vide order dated 23.3.2016. Hence, this petition.
3 Mr. Subhash Sharma, learned Advocate appearing for the petitioner, has vehemently argued that the appeal was maintainable under Section 21 of the Act.
4 Mr. Pankaj Chauhan, learned Advocate appearing for the respondent, has supported the impugned order dated 23.3.2016 passed by the learned Sessions Judge.
5 I have heard learned counsel for the parties and have also gone through the orders dated 26.10.2015 and 23.3.2016 carefully.
6 Section 2(d) of the Act defines "custody order" an order granted in terms of Section 21. Section 2(a) defines "aggrieved person"
to mean any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act ::: Downloaded on - 15/04/2017 21:09:14 :::HCHP -3- of domestic violence by the respondent. Section 2(q) defines "respondent" to mean any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the .
aggrieved person has sought any relief under this Act. Section 21 reads as under:-
"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 of 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 rt making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent."
7. Section 21 starts with non obstante clause. It is evident from the plain language employed in Section 21 that the Court 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, i.e. mother 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 i.e. father can also be ordered. The proviso attached to Section 21 stipulates 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.
::: Downloaded on - 15/04/2017 21:09:14 :::HCHP -4-8. In the instant case, custody of the child is already with her mother. The respondent has not asked for custody of the child for the simple reason that the child is already in her custody. It is the .
respondent, i.e. father, who has sought merely visitation rights to see his son, which right was granted to him by the learned Judicial Magistrate, 1st Class vide order dated 26.10.2015, that too, on limited days, i.e. 2nd and 4th Saturday of each month between 3.00 P.M. to 5.00 of P.M. In case the visitation right is not given to the petitioner, minor child would be deprived of father's love and affection. The paramount consideration is welfare of the child. The petitioner could not be forced rt to seek remedy either under Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956, as observed by the learned Sessions Judge because it would lead to multiplicity of litigation. The Act is a self-contained code. The endeavour of the Court should be to cut-short the litigation and to ensure that the child gets love and affection of both parents, i.e. mother and father. The approach of the Court should be practical to workout the modalities in a practical manner by evolving the process, whereby the child suffers minimum trauma. The interpretation of statute should be purposive.
8 Consequently, in view of analysis and discussion made hereinabove, the petition is allowed and the impugned orders dated 23.3.2016 rendered by learned Sessions Judge, Una, H.P., in Criminal Appeal Nos. 70/2015 and 71/2015 are quashed and set aside. The order, dated 26.10.2015 passed by the learned Judicial Magistrate, 1st ::: Downloaded on - 15/04/2017 21:09:14 :::HCHP -5- Class, Court No.1, Una in application No.362-I-14 is restored. Pending application(s), if any also stands disposed of. No order as to costs.
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(Rajiv Sharma), Judge September 2, 2016 (pankaj) of rt ::: Downloaded on - 15/04/2017 21:09:14 :::HCHP