Maintainabilty of sec 21 dv act in metropoliitan magistrate
JASWANT VIJAY AGNIHOTRI
(Querist) 16 January 2019
This query is : Resolved
in the case of Payal Agarwal Vs. Kunal Agarwal III (2014) DMC 122 Raj., the Rajasthan High Court delved upon this issued. In this case, the Magistrate granted visitation rights. Later on Family Court under Sectin 7 of the Act passed certain orders contra to the magistrate's orders. Before the High Court, the question came up, which order has got override effects. It was held that when family court exists in the area, then magistrate does not have power to pass orders under Section 21 of DV Act..
Recently Bombay High Court has also passed an order in July 2018 and said that Metropolitan magistrate can pass the child visitation under 21 of DV act.
I am appearing party in person in my DV case and filed the application under 21 of DV act in MM court at jodhpur rajasthan and Magistrate said that the application will be rejected as being established family court juridiction in vogue, MM court can not entertain this application under sec 21 of DV act. Respected seniors i need your opinion and directions in this regard.
MM court also asking me to reply the application of 23 of DV act, i want to answer it late as the evidence in my 498a/406 cases is also going on.i want to use those evidence in my reply to 23 DV act. Kindly suggest how to deal with it as iam already paying maintenance to wife and child under section 24 of Hindu Marriage Act.
Vijay Raj Mahajan
(Expert) 16 January 2019
You can file petition for custody under the Guardian and Wards Act in the same Family Court where divorce case is pending and subsequent for visitation of children during pendency of the petition for custody.
That will be best sensible solution rather continuing the application u/s21 of DV Act before the Judicial Magistrate.
KISHAN DUTT KALASKAR
(Expert) 16 January 2019
Dear Sir,
Your question is very legal and the issue yet to be decided by the Courts. The Supreme Court must intervene and pass necessary orders and put the issue at the rest. Both points are arguable till matter is decided by SC. You may stick on to your version saying that your application under Section 21 of DV Act is maintainable as this section contains the following unequivocal wordings “21. Custody orders.—Notwithstanding anything contained in any other law for the time being in force, the Magistrate may.”
Please mark “LIKE” if satisfied by my answer.
