Delhi High Court: Jyoti Singh, J., while addressing the maintainability and legality of a petition filed under Section 482 of Criminal Procedure Code, 1973 held that, legislature in its wisdom has provided for Appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 against all “orders” and has not made any exception to orders relating to custody.
Petition was filed seeking setting aside of the Order passed in complaint under the Protection of Women from Domestic Violence Act, 2005 by the Metropolitan Magistrate.
Due to a rift in the relationship of the husband and wife, respondent took away the three children to live with him under a separate roof.
Protection Order & Custody Orders
By way of the present petition, petitioner sought reliefs such as Protection Order under Section 18 of the Protection of Women from Domestic Violence Act, 2005.
Wife sought a restraining order against the respondent from dispossessing the wife from the shared household and monetary reliefs such as medical expenses and rentals including household expenses.
In line of reliefs, Custody Order with respect to the three children were also sought under Section 21 of the Act. Application for various interim reliefs was also sought under Section 23 of the Act.
Unhindered Access to Mother
Court noted that for the sake of emotional quotient and robust psychological health, the mother should be provided unhindered access, if not physically then through video conferencing and the same was granted on 24th April, 2020.
Magistrates’ Decision
Custody of children was directed to be continued with the father as an interim measure visitation rights were granted the wife.
Petition not maintainable
Respondent’s counsel, Bobby Anand submitted that petitioner has a remedy of an appeal under Section 29 of the Act, hence the present petition is not maintainable under Section 482 CrPC.
Advocate Malvika Rajkotia, for the wife submitted that, a mother is best suited to look after the needs of growing daughters, particularly, the sensitivities of their emotional needs and biological requirements.
She also submits that youngest daughter is under 5 years of age and it is a mandate under Section 6 of the Hindu Minority and Guardianship Act, 1956 that the child should be in care and custody of the mother.
Present Petition is maintainable in this Court as mere availability of alternate remedy cannot be a ground to disentitle the relief under Section 482 CrPC.
Analysis and Decision
Maintainability
Supreme Court has time and again spelt out clear restraints on the use of extraordinary powers and observed that the High courts should not go beyond those wholesome inhibitions unless the extraordinary circumstances cry for immediate and timely judicial mandate.
In the present matter, Court is not persuaded in to entertain the petition in its extraordinary power under Section 482 CrPC given the fact that there is a clear remedy of Appeal under Section 29 of the Act available.
Hence, facts and circumstances in the present matter do not call for any urgent intervention to permit the petitioner in bypassing the remedy available in the form of Statutory Appeal.
in view of the above, petition was dismissed.[Srisha Dinav Bansal v. Rajiv Bansal, 2020 SCC OnLine Del 764, decided on 20-07-2020]
