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Applicability of 151 cpc

Page no : 2

Sidharth   08 August 2016

Originally posted by : prabhakar advocate
U/S. 21 of DV Act gives the respondent father right to file application for visitation to child  during pendency of DV case.  Not under Section 151 CPC.  Any how, it is always better to file independent custody suit, which is permanent in nature.

As per the order of Ms Anu aggarwal MM Tis hazari court ( in my case)

Only an aggrieved person i.e complainaint can only file the application u/s 21 of DV Act

 

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.

Sidharth   08 August 2016

i showed the court the judgement of SUPREME COURT OF INDIA in Deepti Bhandari vs Nitin Bhandari

https://indiankanoon.org/doc/88924056/

court said right was granted by high court u/s 482 crpc and not sec 21 of dv act

 

Sidharth   08 August 2016

Originally posted by : Shonee Kapoor
Why go for 151 CPC when there is a specific provision under S 21 of Protection of Women from Domestic Violence Act to get visitation to the father.

 

Put an application for visitation under S. 21 of PWDVA, 2005.

 

Regards,

 

Shonee Kapoor

www.shoneekapoor.com 

Court said that only "aggrieved person" can file an application u/s 21 of DV and not respondent.

 

prabhakar advocate (advocate)     09 August 2016

Judge's interpretation of S.21 is absolutely wrong.  Read the last part of the section. "

"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".

The respondent in DV case is mostly father of the child, he can avail the provision to get visitation rights. On other counts, she is right - S. 151 CPC being inherent jurisdiction provision in civil cases, that won't be applicable.  S.482 cr.P.C. is not applicable because she is only M.M. and only High Court has got restricted powers under S.482.  Any how, separate petition for custody and applicatipon for visitation rights is advisable.
 

Sidharth   09 August 2016

@Adv Prabhakar

but judge was asking where it has written that sec 21 of Dv can be filed by respondent.

She says if complainaint file application of sec 21 of dv act then court while granting temprarory custody to complainaint then only court can give visitation rights to father.

 

Sidharth   09 August 2016

@adv prabhakar

On the other hand i met a lawyer yesterday he said 151cpc can be filed in any criminal case for example :

1. if petitioner or respondent wants adjournment 

2. Condonation of delay

then why not in dv act

Even in my dv act case i have also filed an application against complainant u/s 35b cpc " Cost for causing unnecessary delay" same judge accepted that application and ordered complainaint to file reply

 

Please advice

Rocky Smith (Instructor @ Calcutta (rockysmith4calcutta@gmail.com))     09 August 2016

Dear Quest,

 

First of all DV is unconstitutional. Please check the link below.

 

https://www.lawyersclubindia.com/forum/All-gender-biased-feminist-laws-are-unconstitutional--133540.asp

 

151 CPC is applicable for any cases in nature of Civil/ criminal or quashi. It is just a put-up petition to  bring up the case for end of justice. 

 

For getting relief for your child you need to make petition with Hindu_Minority_and_Guardianship_Act.

 

Please do it either party-in-person or by hiring a pleader among your relatives/friends (who are not an advocate) as per Section 32 of Advocate Act.

 

Please check my profile links for sample petitions and other clues.

1 Like

prabhakar advocate (advocate)     11 August 2016

Section 151 is not applicable because it is inherent jurisdiction vested with civil court.  If anyone says that it is applicable, particularly advocate, then my best wishes with him.  There are catena of cases from Supreme Court, where inherent jurisdiction can be exercised in S. 151 and Section 482 of cr.p.c.  Intentionally, the legislature has not vested that power in Magistrate in criminal cases for curbing the misuse of power and obviate the corruption at that stage.  Allowing your application under S. 151, if judge did that, he did it wrongly.  Two wrongs cannot become right.

Now, the magistrate has been provided jurisdiction like inherent jurisdiction in Section 28 (2) of DV Act, only while adjudicating Domestic violence cases.  While exercising this power, the court must be extra cautious and justice Vasant of Kerala High Court gave beautiful judgment the Magistrate can exercise under Section 28(2) of DV Act.  If you are really open minded, then carefully read Section 28(1) and Section 28(2) of DV Act, you will get answer.

The judge is wrong to say that the respondent father cannot ask for visitation rights.  There is nothing in any branch of law that Defendant/Accused/Respondent cannot get any relief.  Section 21 also does not put a precondition of application from the wife for custody of child which can invoke the husband's right to get visitation.  There are a couple of judgments on this point where father got custody.

But, if husband is really serious and intends to have custody of the  child, it is always preferable to file separate case for custody and application for visitation, which is permanent in nature, once relief is granted, whereas, the order in DV Act is temporary in nature.

(LAST REPLY) 

1 Like

Sidharth   11 August 2016

Originally posted by : prabhakar advocate
Section 151 is not applicable because it is inherent jurisdiction vested with civil court.  If anyone says that it is applicable, particularly advocate, then my best wishes with him.  There are catena of cases from Supreme Court, where inherent jurisdiction can be exercised in S. 151 and Section 482 of cr.p.c.  Intentionally, the legislature has not vested that power in Magistrate in criminal cases for curbing the misuse of power and obviate the corruption at that stage.  Allowing your application under S. 151, if judge did that, he did it wrongly.  Two wrongs cannot become right.

Now, the magistrate has been provided jurisdiction like inherent jurisdiction in Section 28 (2) of DV Act, only while adjudicating Domestic violence cases.  While exercising this power, the court must be extra cautious and justice Vasant of Kerala High Court gave beautiful judgment the Magistrate can exercise under Section 28(2) of DV Act.  If you are really open minded, then carefully read Section 28(1) and Section 28(2) of DV Act, you will get answer.

The judge is wrong to say that the respondent father cannot ask for visitation rights.  There is nothing in any branch of law that Defendant/Accused/Respondent cannot get any relief.  Section 21 also does not put a precondition of application from the wife for custody of child which can invoke the husband's right to get visitation.  There are a couple of judgments on this point where father got custody.

But, if husband is really serious and intends to have custody of the  child, it is always preferable to file separate case for custody and application for visitation, which is permanent in nature, once relief is granted, whereas, the order in DV Act is temporary in nature.

(LAST REPLY) 

i am not agree about your opinion on 151 cpc but agreed that about sec28(2). i agree with you thanks for the help.

The Protection of Women from Domestic Violence Act, 2005

Section 28(2)

Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.

Is Section 12 in above line means complete DV act???


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