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The petitioner-wife, being aggrieved by order dated 22.12.2014 passed by the Fast Track Court - V at Bengaluru in Criminal Appeal No.1335/2014 confirming the order dated 1.12.2014 passed in Crl. Misc.No.28/2012 on I.A. by the Metropolitan Magistrate Traffic Court-VI, Bengaluru City, prefers the above revision petition against the respondent- husband on the grounds that:

The impugned judgment and order are contrary to law, procedure and materials on record. Under the provisions of the Protection of Women from Domestic Violence Act, 2005 (for short 'the PWDV Act'), the Magistrate is not vested with the power of granting custody to the respondent. The Sessions Court ought not to have passed the impugned order as welfare of the child is at paramount consideration. It has not appreciated the fact that the child was abducted by the respondent and that he had kept the child away from the petitioner for over two years and the respondent cannot be allowed to benefit from his own fault. The Superior Court of California has also observed that the respondent kept the child away from the mother intentionally. The Sessions Court ought to have seen that the entire dispute between the parties is regarding the property which has been observed by both the Superior Court of California as well as this Court. It ought to have gone into the merits of the case before talking to the child as the Magistrate-in-charge who interviewed the child was not aware of the case and its intricacies and did so only because a memo to the effect was filed against the respondent. The Sessions Court has not considered the fact that the child is a girl nearing the age of puberty and that she has to be with her mother for proper care during this period. The Sessions Court has failed to appreciate that the respondent has psychological problems, for which he was being treated, which fact has been admitted by him before the Superior Court of California. The Sessions Court has not looked into the fact that the child is happy in the school and the surroundings and also happily celebrated the petitioner's birth day recently. Enquiry ought to have been conducted by the Sessions Court and it ought to have spoken to both the parties to evaluate the parents before passing the impugned order. The impugned order is passed without considering evidence, citations and the documents produced by the petitioner. The Sessions Court ought to have seen that if the relief claimed in the interim application is the same as claimed in the final relief, then no relief ought to be granted without any enquiry or trial. The sessions Court, not being conversant with the facts and merits of the case and not being sensitized about the matter, has not posed the right questions to find out the actual mind of the child and it has also failed to appreciate that the child has been in the custody of the respondent, who has poisoned the mind of the child, but the petitioner never spoken ill about the respondent to the child only saying that she will understand the scenario once she grows up. The Sessions Court has also grossly erred in not taking into consideration the fact that this Court has set aside the order passed by the Magistrate. Hence, sought to allow the revision petition.

6. Let me refer to the relevant facts of this case. The revision petitioner and the respondent are the married couple. Out of the wedlock, a female child, by name Ananya P. Rao, was born and now, she is aged 10 years. The case of the respondent-husband before the Magistrate Court was that he filed an application under Section 25 of the PWDV Act seeking interim custody of the child alleging that he is residing at California and his daughter is also staying with him. Due to difference between himself and the revision petitioner-wife, he filed proceedings before the Superior Court of California seeking judicial separation so also he filed an application seeking interim custody of the daughter to him. The application for interim custody of the child was allowed by the Superior Court of California and accordingly, the child was with him. The contention of the respondent husband is that the petitioner-wife filed a petition before the Magistrate Court in India under Section 12 of the PWDV Act seeking relief of protection and other reliefs and in the said proceeding, she has also filed an application seeking custody of the child which was allowed exparte by the Magistrate Court and the respondent-husband was directed to deliver the custody of the child to petitioner-wife. In view of such order passed by the Magistrate, the Superior Court of California directed the respondent-husband to hand over the custody of the child to the mother of the child. The respondent-husband when challenged the order of the Magistrate before the first appellate court, the appeal was also dismissed confirming the order of the Magistrate.

9. Referring to definition as per Section 2 of the PWDV Act, In this Act, unless the context otherwise requires ,-

(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;

(d) "custody order" means an order granted in terms of section 21;

10. So, according to this definition, Section 2(d) clearly goes to show that the custody orders passed by the courts in relation to the child come necessarily under Section 21 of the PWDV Act.

12. Therefore, Section 21 clearly expresses that the temporary custody of a child or children can be given to the aggrieved person or the person, making an application on her behalf, by making necessary the arrangement for visit of such child or children by the respondent.

13. Though the application is said to have been filed under Section 25 of the PWDV Act, if we look into the prayer seeking the interim custody of the child keeping the final proceedings pending filed under Section 12 of the Act and also perusal of the order passed by the learned Magistrate, which is confirmed by the first appellate court, virtually and in reality, it is an order which comes within the purview of Section 21 of the PWDV Act. If we read carefully the provisions under Section 21, no such right is given to the respondent-husband to file an application seeking interim custody of the child.