HC upholds “child custody” order passed by Magistrate, Appellate court under Domestic Violence Act

29/07/2016

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Petition u/s 561-A Cr. P.C No. 373/2015
MP No. 01/2015
Date of Decision:29.6.2016
Vidit Mahajan and others VS. Sunali Mahajan
Coram:
Hon'ble Mr. Justice Janak Raj Kotwal, Judge
Appearing Counsel:

For Petitioner(s): Mr. Abhinav Sharma, Adv. And Mr. Himanshu Beotra, Adv.
For respondent(s):Mr. B.S. Salathia Sr. Adv. With
Mr. Pawan Maini Adv.
(i) Whether to be reported in
Press, Journal/ Media: Yes/No
(ii) Whether to be reported in
Journal/Digest: Yes/No
1. This is a petition under section 561-A of the Jammu and Kashmir Code of Criminal Procedure (for short the Code). Petitioners seek quashing of a complaint/application under section 12(1) of the Jammu and Kashmir Protection of Women from Domestic Violence Act, 2010 (for short the Act) filed against them by the respondent in the court of Spl. Excise Mobile Magistrate, Jammu as also order dated 30.04,2015 passed by the learned Magistrate and judgment dated 22.07.2015 passed in appeal by learned Second Additional Sessions Judge, Jammu.
2. Heard. I have perused the record.
3. Respondent is the wife of Petitioner No. 1, their marriage was solemnized on 28.01.2008. Petitioners- 2 and 3 are the parents of petitioner No. 1. In her application under section 12(1) of the Act respondent has leveled various allegations of domestic violence and harassment against the petitioners. Relevant for disposal of this petition is the allegation that on 02.01,2014 petitioner No.1 at the instigation of petitioners 2 and 3 gave her physical thrashing at her matrimonial house and demanded 15 lac rupees in cash. She informed her parents who reached there and brought her to her parental house at Goura Bakshi Nagar, Jammu. Her minor child, Vihaan, was forcibly snatched from her by the petitioners, custody whereof, however, was handed over to her with the intervention of the Police. It is alleged further by the respondent that on 31.03.2014 petitioner No. 1 took the minor away from her father on the pretext of meeting him and thereafter has forcibly retained the minor, who is just three years old. She has alleged that there is every threat to the life of the minor and that the minor is not safe in the hands of petitioners particularly when petitioner No. 1 most of the time remains busy in his business activity.
4. Respondent in her application under section 12(1) of the Act among others has sought relief of order for custody of the minor in terms of section 21 of the Act. She also filed application seeking inter alia ex parte interim direction in terms of section 23 of the Act to the petitioners to hand over the custody of the minor to her. Learned Magistrate obtained objections from the petitioners who resisted the application inter alia alleging that respondent was leading adulterous life and that petitioner No. 1 has already filed petition for divorce and a complaint under section 497 RPC against the respondent, which are sub judice. Petitioners in particular resisted the prayer for handing over of the custody of the minor to the respondent contending that in such circumstances welfare of the minor lies in keeping him with petitioner No. 1(father).
5. Learned Magistrate, vide order dated 30.04.2015, while relying upon the Supreme Court judgment in Nil Rattan Kundu and anr v Abhijit Kundu, 2008(9) SCC 413, issued direction for handing over of the temporary custody of the minor to the respondent within ten days with a further direction that if minor has been admitted in a play school or in any other school, his studies shall not be interrupted and petitioner No. 1 (father) shall continue to defray education related expenses of the minor including expenses on transportation. Aggrieved by the direction issued by learned Magistrate, petitioner No. 1 filed appeal in terms of section 29 of the Act before learned 2nd Additional Sessions Judge, Jammu. Learned appellate court vide its judgment dated 22.07.2015, however, upheld the order passed by learned Magistrate and dismissed the appeal.
6. Petitioners invoke inherent jurisdiction of this Court to seek quashing of the application under section 12(1) of the Act as also the order of temporary custody passed by the learned Magistrate and judgment rendered in appeal by learned 2nd Additional Sessions Judge, firstly on merits of the case. It is contended that after filing of the divorce petition and criminal complaint by petitioner No. 1, the respondent has abused the process of the court by filing false and frivolous application against the petitioners and leveling concocted allegations. Petitioners in ground 'K' enumerated in the petition have raised a point of law by seeking the quashing of the impugned order and judgment of the courts below on the ground that learned Magistrate neither forwarded the complaint to Protection Officer as per mandate of the Act nor the courts below appreciated that no interim order under the Act could have been passed without report of the Protection Officer appointed under the Act for Gandhi Nagar, Jammu.
7. Learned counsel for both the sides argued with vehemence on the point of law raised by the petitioners by the touchstone of the provisions of law provided under section 12(1) of the Act and its proviso which read:
"12. Application to Magistrate.
(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:
Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident/report received by him from the Protection Officer or the service provider."
(underlining by me)
Learned counsel for both the sides placed reliance on a Supreme Court judgment in Zuveria Abdul Majid Patni v Atif Iqbal Mansoori and anr, (2014)10 SCC 736 and two earlier judgments of this Court in Vinay Sharma and ors vs. Shweta Sharma and ors, 2014 (4) JKJ 347 and Rakesh Manhas and ors vs Aruna Manhas, 2015 (1) JKJ 301.
8. In Vinay Sharma's case, which is earlier in time, a learned Single Bench of this Court in reference to the proviso to section 12(1) of the Act has held in paragraph 9 of the reporting:
"9. A plain reading of the aforesaid proviso would reveal that the Magistrate concerned before passing any order in the matter shall take into consideration the domestic/incident report, but the learned trial Court has overlooked this legal aspect of the matter and passed the orders in contravention of the said proviso."
9. In Rakesh Manhas' case, another Single Bench (this Bench) after comparative analysis of sections 4, 9 and 10 of the Act and Rules 4 and 8 of the Rules framed under the Act (for short the Rules) held in paragraph 21 of the reporting that giving information to Protection Officer or Service Provider and their report to the Magistrate in no way can be taken as a sine qua non for making an application under section 12(1) to the Magistrate. It was held also that:
"it is open to an aggrieved person to straightway make an application to the Magistrate under section 12((1) seeking one or more reliefs under the Act. The only interpretation that can be given to the proviso to section 12(1) of the Act is that the Magistrate before passing any order on the application of the 'aggrieved person' will have to accord consideration to a Domestic Incident Report of a Protection Officer or a report of a Service Provider, if such a report has been received by the Magistrate. Key to such interpretation seems to have made available in the proviso itself by use of word `any'. Proviso does not mandate calling for a report from a Protection Officer or Service Provider but refers to 'any report' received from a Protection Officer or Service Provider, which, however, would be available only in a case where information to the Protection Officer or a Service Provider about an act of domestic violence had been given by the aggrieved person himself or by `any person".
10. This Bench, therefore, respectfully, was of the opinion that the learned co-ordinate Bench in Vinay Sharma's case has emphasized necessity of according consideration to the domestic incident report but that necessity would arise only if such a report is there and not by calling a report.
11. Mr. Abhinav Sharma, learned counsel for the petitioners, while not entering any issue in regard to the proposition that it would be open for an aggrieved person to straightway file an application under section 12(1) of the Act before the Magistrate without first approaching a Protection Officer or a Service Provider and in that case no domestic incident report would have been received by the Magistrate before the filing of an application under section 12(1) of the Act, however, argued and laid emphasis that in such a case the Magistrate before initiating proceedings in the application and passing any order will have to refer the application to the Protection Officer appointed by the Government for the area concerned and obtain report from him. In support of this argument Mr. Sharma submitted that the Government vide SRO 335, Notification dated 18.07,2013 has appointed Protection Officers for different localities of the State identifying their area of jurisdiction. Mr. Sharma sought to point out that one of the duties of the Protection Officer as laid down under section 9(1)(a) of the Act is to assist the Magistrate in discharge of his functions under the Act so in order to give harmonious interpretation to section 12(1) and 9(1)(a) of the Act and to achieve purpose envisaged under the Act, the Magistrate must avail the services of the Protection Officer, which is imperative also for the reason that proceedings under section 12(1) of the Act can be initiated only in a case where an Act of domestic violence has been committed and unless there is a report from a Protection Officer or a Service Provider to show that there had been domestic violence against the applicant no proceedings under section 12(1) of the Act can be commenced. On being asked as to which provision of the Act would empower the Magistrate to appoint and obtain a report from the Protection Officer, Mr. Sharma argued that such a power is inbuilt in proviso to section 12(1) of the Act and can be exercised in view of sub-section (2) of section 28 of the Act, which empowers a court to lay down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23 of the Act. In reinforcing his point a feeble attempt was made by Mr. Sharma to explain that the term 'any report' figuring in sub-section (1) is relatable to a report received from a Protection Officer or a report received from a Service Provider. Mr. Sharma sought to draw support from the Supreme Court judgment in Juveria Abdul Majid Patni (supra) by pointing out that in that case also the Magistrate had appointed a Protection Officer who submitted a report stating inter alio that an Act of domestic violence was committed.
12. Mr. B. S. Salathia, learned Senior Advocate, appearing for the respondent on the other hand argued with equal vehemence that the Act does not provide for calling for a report by the Magistrate from the Protection Officer before initiating proceedings under section 12(1) of the Act. Mr. Salathia also placed reliance on judgment in Juveria Abdul Majid Patni (supra) and sought to underline that Hon'ble Supreme Court has clearly laid down that Magistrate before passing any order under section 12 is required to take into consideration 'any domestic incident report' received by him from Protection Officer or Service Provider and not that such a report should be called by the Magistrate. Mr. Salathia relied upon a Jharkhand High Court Judgment also in Swarup Mandal v State of Jharkhand and anr. 2011(4) JLJR 299.
13. The question, thus, raised is, whether in an application under section 12(1) of the Act, filed by the aggrieved person without first approaching the Protection Office or the Service Provider, the Magistrate before passing any order should refer the application to the Protection Officer of the concerned area and obtain his report. In other words, the question is, whether in such a case the Magistrate cannot pass any order/grant any relief without first referring the matter to the Protection Officer and obtaining his report.
14. Provisions of the Act, which are relevant for determination of the aforementioned question, have been noticed. Chapter IV of the Act, starting with section 12, deals with 'Procedure for Obtaining Orders of Relief' under the Act. Proviso to section 12(1) of the Act, which has been quoted above, in unequivocal terms provides that the Magistrate shall take into consideration 'any' domestic incident report received by him from the Protection Officer or the Service Provider. Neither the proviso to section 12(1) nor any other provision in the Act, either specifically or by implication, mandate referring the application to or appointment of a Protection Officer by the Magistrate and/or obtaining report from him.
15. In order to determine the question raised in this petition it is important to understand the meaning of the term the 'domestic incident report' as used in proviso to section 12(1) of the Act. Various terms used in the Act have been defined in section 2 of the Act. Section 2(e) defines the term the 'domestic incident report'. It reads:
"2(e) "domestic incident report" means a report made in the prescribed form on receipt of a compliant of domestic violence from an aggrieved person".
(underling by me)
16. Section 4 of the Act read with Rule 4 of the Rules provides for giving information about an act of domestic violence to the Protection Officer 'by the aggrieved person' or 'by any person' who has reason to believe that an act of domestic violence has been, or is being, or is likely to be committed. Section 9 of the Act lays down the duties and functions of the Protection Officer. Section 9(1) (b) casts a duty on the Protection Officer to make a 'domestic incident report' to the Magistrate. It reads:
"9(1)b). to make a domestic incident report to the Magistrate, in such form and in such manner as may be prescribed, upon receipt of a complaint of domestic violence and forward copies thereof to the Police Officer Incharge of the Police Station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the service providers in that area."
(underling by me)
17. Section 10(1) of the Act provides for registration of Service Providers and section 10(2) lays down the powers of a Service Provider registered under the Act. It reads inter alia:
"10(2)(a). record the domestic incident report in the prescribed form if the aggrieved person so desires and forward a copy thereof to the Magistrate and the Protection Officer having jurisdiction in the area where the domestic violence took place."
(underling by me)
18. Reading sections 2 (e), 4,9 (1) (b) and proviso to section 12 (1) of the Act and Rule 4 of the Rules in a sequence and juxtaposition would make it clear that the 'domestic incident report' as contemplated under proviso to section 12 (1) of the Act is the one as may be made and forwarded to the Magistrate by the Protection Officer on a complaint/ information given to him under section 4 by the aggrieved person or any other person or the one as may be recorded and forwarded to the Magistrate by the Service Provider in terms of section 10 (2) (a). The proviso to section 12 does comprehend any other report much less a report to be obtained by the Magistrate by referring the matter to the Protection Officer. It is, therefore, not necessary for the Magistrate to refer the matter to or call for any report from the Protection Officer before passing any order on an application under section 12 (1) of the Act. Similar view has been taken by the High Court of Jharkhand in Swaroop Mandal's case (supra).
19. Correct it is that an act of 'domestic violence' as defined under section 3 of the Act is sine qua non for passing an order on an application under section 12 (1) of the Act but it would not be correct to say that Magistrate is totally handicapped in passing an order unless there is a domestic incident report by the Protection Officer or Service Provider. Section 28 (1) of the Act provides that all proceedings under sections 12, 18, 19, 20, 22 and 23 and offences under section 31 shall be governed by the Code. Contextually, Rule 6(4) of the Rules provides that an application under section 12 shall be dealt with and the orders enforced in the same manner as laid down under section 488 of the Code. Section 3 of the Act defines 'domestic violence' and the Explanation II thereto provides that "for the purpose of determining whether any act, omission, commission or conduct of respondent constitutes 'domestic violence' under this section, the overall facts and circumstances of the case shall be taken into consideration". Plain reading of these provisions would exclude any necessity much less a compulsion of calling a report from a Protection Officer/ Service Provider before passing an order under section 12 (1) of the Act in a case where the aggrieved person or any person on his behalf has approached the court without first approaching the Protection Officer or a Service Provider. Magistrate in such a case can rely upon and proceed on the basis of the material produced along with the application having regard to overall facts and circumstances of the case.
20. I may, however, hasten to add here that while as section 28 (1) of the Act read with Rule 6(4) of the Rules provide that an application under section 12 (1) shall be dealt with in the same manner as laid down under section 488 of the Code, sub-section (2) of section 28 authorizes the court to lay down its own procedure for disposal of an application under section 12 or in granting ex parte relief in terms of sub-section (2) of section 23. Contextually it is noticed that section 9(1) (a) casts a duty on the Protection Officer to assist the Magistrate in the discharge of his functions under the Act. Such being the scheme in regard to the procedure to be followed in granting various reliefs on an application under section 12 (1) of the Act, it would be open for the Magistrate, having regard to the facts and circumstances of the case, to avail assistance of the Protection Officer in terms of section 9(1)(a) and call a report from him but calling such a report as said above, is not a prerequisite of passing any order or granting relief, where the aggrieved person approaches the court straightway without first approaching a Protection Officer/Service Provider.
21. The order dated 30.04.2015 passed by the learned Magistrate and the judgment dated 22.07.2015 passed by the 2nd Additional Judge, Jammu have been assailed by the petitioner also on the merit of the decision of handing over the custody of the minor to the respondent. Learned counsel for the petitioners argued that both the courts below have fallen in error by ignoring the welfare of the minor in giving his custody to the respondent, in utter disregard to the facts and circumstances in which she left the matrimonial house abandoning the minor. Parties have leveled grave and serious allegations of immoral behavior against each other in their pleadings before the learned Magistrate. I have read and accorded my deep consideration to these allegations though I do not feel the necessity of reproducing all of them in this order nor to express any opinion lest that may not prejudice the inquiry by the learned Magistrate. Nonetheless, I have noticed that presently matrimonial relationship of the parties is highly strained and turbulent and the couple has parted company. The minor indeed has been victimized for no fault of his.
22. Having accorded consideration to the grounds on which the impugned decision has been assailed by the petitioners, I find no reasonable ground for showing any indulgence in exercise of inherent jurisdiction of this Court under section 561-Aof the Code. I may, rather add that in dealing with a question of custody of a minor in any proceedings the first and paramount consideration for the court is the welfare and the best inerest of the child more than right of a parent. Another factor is the choice and preference of the minor if he, to the satisfaction of the court, is old enough to make intelligent choice and preference.
23. The Minor child of the parties is said to be three years old and it is not denied that he is less than five. Learned Magistrate in his order has recorded cogent and satisfactory reasons for giving the temporary custody of the Minor to his mother, the respondent, which have found the favour of learned appellate Judge too. The parties are Hindu by religion and under the Hindu Minority and Guardianship Act, 1957, section 6(a), custody of a minor who has not completed the age of five years shall ordinarily be with the mother. There is no reasonable ground for depriving the minor of his statutory right merely on the basis of allegations leveled by the father, howsoever grave and serious they might be.
24. There is yet another reason, which is not less important, for refusing any indulgence by this Court in the custody order passed by the learned Magistrate and upheld by the learned Appellate Court. The scheme and pattern of reliefs provided under the Act have been noticed. In an application under section 12(1) an aggrieved person, that is, a women who alleges to have been subjected to any act of domestic violence by the respondent, can claim one or more reliefs provided under the Act. Say otherwise, only such relief as has been provided under the Act can be granted by the Magistrate. The reliefs provided under the Act are:

(i) Protection Order - sec.18
(ii) Residence Order -sec. 19
(iii) Monetary Relief -sec. 20
(iv) Custody Order -sec. 21
(v) Compensation Order -sec.22
(vi) Any just and proper interim order
as the Magistrate may deem fit -sec. 23(1)
(vii) Ex parte order granting relief under
Sections 18,19,20,21 and 22 -sec.23(2)

25. Peculiarity in the relief of the Custody Order under section 21 as compared to the other reliefs provided under the Act is not far to seek. Section 21 reads:
"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."
On plain reading of section 21 and its comparison with the other sections of the Act it is clear that while as an order granting any relief under sections 18, 19, 20 or 22 has the effect of finality, subject, however, to appeal under section 29 of the Act, the Custody order passed under section 21 is a temporary or interim arrangement, which the Magistrate in his discretion may order at any stage of the proceedings, having regard to the facts and circumstances existing as at that stage. Such temporary arrangement as 'temporary' it is, does not have the effect of finality and it remains open for the Magistrate to accord reconsideration to the arrangement at a subsequent stage, having regard to the evidence/ material brought on record by the parties and change in circumstances with the object of welfare and best interest of the minor.
26. In the case on hand, as said above, the custody order passed by the learned Magistrate in the facts and circumstances as they emerge from the pleadings and upheld by the learned appellate court does not deserve any indulgence. It shall, however, remain open for the Magistrate to reconsider his decision if applied for by the petitioner (s) if there appears a change in circumstances on the basis of the evidence/ material produced and to be produced by the party (ies).
27. For all that said and discussed above, this petition deserves dismissal and is therefore, dismissed.

Sd/- Hon'ble
(Janak Raj Kotwal, Judge)

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