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Never Give Up (Fighter)     18 May 2012

Dv s 21 custody orders

Hello Learned members,

 

Husband and family hit by DV, Kid with wife since birth and now 3+ years young.  Can husband pray for visitation rights under DV S21 (custody orders) ?  Is there anybody in forum who was successful in achieving visitation rights under DV ? If so please share experience and procedure to do so.

 

Thank you.



Learning

 16 Replies

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     18 May 2012

Dear Querist

 

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.

rajiv_lodha (zz)     18 May 2012

This relief can be sought only by WOMAN not by MAN!

Never Give Up (Fighter)     19 May 2012

Thank you for the reply.

 

However my understanding goes like this...for DV woman/wife would always be petitioner and man/husband would be respondent.

Law says

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.


So as per law man can ask for visitation rights ....

 

I request learned members to enlighten upon this...

 

Thank you.

manish (cdsdfasd sdf)     01 June 2012

why dont you file child visitation and custody under guardian and ward act. You will get visitation within 2 or 3 dates as soon as the other party files written statement.

In DV case you can directly get child visitation.. apply under section 21 saying that party a has files so and so false cases aghainst you and that u hv been attending all cases. also write that you are not allowed any access to your child and you are very sad and dejected. you can initially request to meet the child inside court premises inside the judge's chambers or if its family court in the kid playroom..

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     06 June 2012

You can seek child visitation in DV/ Any proceedings in HMA/ Guardian and Wards Act.

 

Swiftest is an ongoing complaint under PWDVA, 2005.

 

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

2 Like

Tajobsindia (Senior Partner )     06 June 2012

Gujarat High Court
CR.MA/1200/2011 4/ 4 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION No. 1200 of 2011

LABHUBHAI BABUBHAI DESAI – Applicant(s)

Versus

STATE OF GUJARAT & 1 – Respondent(s)

Appearance

: MSHETVI H SANCHETI for Applicant(s) : 1,

Mr.L.R.Pujari, APP for Respondent(s) : 1, MR RJ GOSWAMI for Respondent(s) : 2,

CORAM :HONOURABLE MR.JUSTICE MD SHAH

Date: 06/04/2011

ORAL

ORDER

This petition under Section 482 of the Code of Criminal Procedure has been filed by the petitioner for quashing and setting aside order dated 18-12-2010 passed by the learned Metropolitan Magistrate, Court No.1, Ahmedabad, in Domestic Violence Case No.1109 of 2010 and order dated 13-1-2011 passed by the learned City Sessions Judge, Ahmedabad, in Criminal Appeal No.513 of 2010 whereby petitioner was directed to hand over custody of two minor children to the respondent No.2 till final disposal of Domestic Violence Case No.1109 of 2010 filed by the respondent No.2.
 

The case in short is that respondent No.2, who is the wife of the petitioner, filed Cri.Misc.Appln.No.50 of 2010 in the Court of learned Metropolitan Magistrate, Ahmedabad, under Sec.97 of Cr.P.C. for issuance of search warrant for getting custody of three children presently staying with the petitioner. Said application was allowed on 25-6-2010 against which, petitioner preferred Cri.Misc.Appln.No.334 of 2010 before the Sessions Court and it was allowed by quashing and setting aside the order passed by the learned Magistrate. However, the petitioner was ordered to keep the children present in the trial Court on 14-10-2010. Being aggrieved by the same, petitioner approached this Court by filing Cri.Misc.Appln.No.12567 of 2010 under Sec.482 of Cr.P.C. This Court (Coram: Akil Kureshi,J.) vide order dated 25-10-2010 ordered to keep custody of eldest daughter with the petitioner. The respondent No.2 was given liberty to make appropriation application under the Protection of Women from Domestic Violence Act before the Magistrate seeking appropriate relief. In pursuance of which, the respondent NO.2 filed Domestic Violence Case No.1109 of 2010 before the Court of learned Metropolitan Magistrate for interim custody of twin children aged five years. The learned Metropolitan Magistrate ordered the petitioner to hand over interim custody of two minor children to respondent No.2. Criminal Appeal No.513 of 2010 preferred by the petitioner was rejected by the learned City Sessions Judge, Ahmedabad. Hence, the present petition.


Heard learned advocate for the petitioner, Ms.Hetvi H.Sancheti, learned APP, Mr.L.R.Pujari for the respondent No.2 and learned advocate, Mr.R.J.Goswami for the respondent No.2.


This Court has gone through both the orders passed by the trial court as well as the appellate Court. This Court has also called the minor children in the chamber for ascertaining the wish of the children in presence of learned advocates appearing for the respective parties. It is ascertained from the children that they have love and affection towards their father and grandfather but not towards their mother. They are studying at present by staying with their father. This Court could find that the children are not ready to leave their father even for a single day. Normally, custody of the minor children should be kept with the mother as it is the mother who can take best care of the children. However, in the present case, this Court could see that the children do not have slightest love and affection towards their mother and hence, it will take much time for the children to get adjusted with mother and get proper care and attention. However, as the children are already with the father and have been taking much care and caution by the father to the utmost satisfaction of children and in the best interest of the children almost in all respects, this Court is of the view that if the custody of the children is left with the father, the children would be more happier. It is true that children have been staying with their father and, therefore, children would not be inclined to stay with their mother as they did not get love and affection of mother. However, keeping the welfare, wish and interest of the children in mind, this Court is of the opinion that it will not be in the best interest of the children to keep their custody with the mother especially when they have shown their love and affection towards their father and did not have slightest inclination towards their mother. These aspects have not been considered by the trial court as well as the appellate court. They have not even made an attempt to call the children in chamber for ascertaining their wish. It is seen that a totally illegal order has been passed by the trial court in directing the complainant to file application under the Guardian and Wards Act and to obtain order qua custody of two minor children and it is a matter of surprise that said order has been confirmed by the learned Sessions Judge.
 

In view of the above, both the orders dated 18-12-2010 passed by the learned Metropolitan Magistrate Court No.1 in Domestic Violence Case No.1109 of 2010 and 13-1-2011 passed by the learned Sessions Judge in Criminal Appeal No.513 of 2010 require to be quashed and set aside and are accordingly quashed and set aside. This petition is accordingly allowed. Looking to the peculiar facts and circumstances, court below is directed to decide Domestic Violence Case No.1109 of 2010 as early as possible preferably within three months from the date of receipt of copy of this order. The parties are at liberty to approach the Civil Court under the Guardian and Wards Act for custody of the children and if such proceedings are initiated by either of the parties, the observations made by this Court in this order will not come in the way of parties while deciding such application.

(M.D.SHAH,J.)



Also see attached PDF file of trial Court order (Delhi) where a husband was sucessful to get Visitation orderr under DV Act


Attached File : 871360744 visitation order delhi trial court in dv proceedings.pdf downloaded: 756 times
1 Like

Adv. Chandrasekhar (Advocate)     06 June 2012

@nevergiveup,

in your second post, you clearly quoted the provision.  Bare reading of that provision indicates that the application filed by husband either custody/visitation rights is not maintainable under the Act.  But above quoted Ahmedabad Court judgment is not applicable in your case for the reason that the children are in the custody of the husband and the wife has moved an application under DV Act in the trial court.  In delhi magistrate court's order, the counsel for the wife has not challenged the maintaibility of the application for visitation rights and so the court has not decided that particular question.  My suggestion is try your luck and move an application and if the counsel for the wife does not raise the question of maintainability, you may also get some relief.

Never Give Up (Fighter)     03 July 2012

Hello Experts,


I am seeking for help in DV S21 for visitation and not custody.

It would be very kind of you if you could post judgements on this regard from trial/sessions/high court.

Thank you.

vijay (M)     03 July 2012

If the custody is with the Man, under what circumstances can he avoid the children being snatched away ?

stanley (Freedom)     25 August 2012

Dear Never Give up , 

As our Uncles Mr Tajobs and Mr Shonee Kapoor all along advise you have to file an application under section 21 of the DV act and i tell you i have done the same and the judge has accepted it . My earlier counsel was very much opposed and began arguing that this act is for women but i went ahead and filed the same. Now my opposite counsel has raised objection against the interim relief application as  i stay alone and had consumed alcohol earlier in front of the kid etc since i have asked for first friday and third friday of each and every  month ,that is from 1 st friday 7.00 p.m onwards upto sunday 9.00 p.m   for my daughter who is 9 yrs old to be with me and also for 50 % of her  vacation period until the pendency of the main DV case .

My DV case is 20 months old and every time the opposite counsel puts false and firvilous application asking for this and that document which i had objected as it is not releated to the case .Now i have to go in for a argument  for the above to grant me the above as during that  above period i would reside at my brothers place where his wife is a house wife in their presence which would be as good as a supervised visit  and secondly tajobs has given a tool that is a  copy of child access and custody guidelines which has been approved by the mumbai high court . i dont think so they can stop me from getting my visitation rights under a supervised visit .  Lets see what happens and Never give up as your name itself suggest why are you giving up .Until and unless you file for it dont expect that the judge would grant you anything till the final disposition of the case . Believe me the DV act say's  with 60 days of the summons reliefs has to be given but this is India the courts are flooded with N no of cases . 

1 Like

Never Give Up (Fighter)     25 August 2012

Hi Stanley,

 

Thanks for response. I am trying to get visitation into GWA case which seems to be very near now as per forum members advise. And i have a strong feeling that it would be granted in GWA case itself. I have been following up with opposite party counsel, my counsel and judge very hard.. My aggressive replies many times shut opposite party lawyer and made him clueless as what to say. As they keep on telling false statemeents in the court and i keep on rebuting them with all documents which they have submitted in various cases   :-)

 

If i am not getting through it or exceeding the timelimit which i have in my mind , i will file visitation in DV as well.  

 

Its my personal request if you could post your updates in DV S 21 proceedings for fighters like me to understand the procedure.

 

Never Give Up (Fighter)     25 August 2012

Hello Learned Members,

 

Again a procedural question,

 

DV is on complainants proof stage ( we filed reply to sec 23 and their main petition of DV ). If i file S21 application at this stage , does it halt the case proceedings till DV S21 application is disposed ??

 

Please suggest.

stanley (Freedom)     27 August 2012

Dear Never Give up , 

Irrespective of whatever stage the DV is you being the respondent are asking for interim relief ( Visitation )  under section 21 of DV act. The applicant must have asked for reliefs under section 21 that is custody of the child even though she is having physcial custody of the chid. She is not bothered as to when  this relief would be granted by the court and would in every way try to distance yourself from the kid by filing false and firviolous applicattions to delay the case  .Just put up a 5 Rs court fee stamp on the  format of the application and sumbit it what have you got to lose they would have to give their say .Ultimately look at your goal its for you to achieve your visiting rights . I understand your counsel too would try to convince you this and that this thing is going on and hence we will file it a later stage .Since the more the case is prolonged the more he earns from you .So look at your goal either you get it through GWA or through through DV what does it matter .

1 Like

stanley (Freedom)     25 October 2012

Originally posted by : Adv. Chandu 09868332610

@nevergiveup,

in your second post, you clearly quoted the provision.  Bare reading of that provision indicates that the application filed by husband either custody/visitation rights is not maintainable under the Act.  But above quoted Ahmedabad Court judgment is not applicable in your case for the reason that the children are in the custody of the husband and the wife has moved an application under DV Act in the trial court.  In delhi magistrate court's order, the counsel for the wife has not challenged the maintaibility of the application for visitation rights and so the court has not decided that particular question.  My suggestion is try your luck and move an application and if the counsel for the wife does not raise the question of maintainability, you may also get some relief.

 

But this judgement should do for him 
 
Supreme Court of India Supreme Court of India Deepti Bhandari vs Nitin Bhandari & Anr on 14 December, 2011 Author: A Kabir Bench: Altamas Kabir, Surinder Singh Nijjar, J. Chelameswar REPORTABLE 
IN THE SUPREME COURT OF INDIA 
CRIMINAL APPELLATE JURISDICTION 
SPECIAL LEAVE PETITION (CRL.) NO.5213 Of 2010 
Deepti Bhandari ... Petitioner Vs. 
Nitin Bhandari & Anr. ... Respondents WITH 
TRANSFER PETITION (C) NO.856-857 OF 2010 
O R D E R 
ALTAMAS KABIR, J. 
  1. The Petitioner and the Respondent No.1 were married to each other according to Hindu rites at Jaipur in the State of Rajasthan on 20th February, 2007. A girl child, Mannat, 2 
  was born prematurely to the couple on 3rd April, 2008, and had to be kept in incubator for about three weeks. It is the Petitioner's grievance that while they were on their honeymoon in Mauritius, the Respondent No.1, husband, began to treat her with physical and mental cruelty. Even during her pregnancy, she was ill-treated. Ultimately, being unable to withstand the physical and mental cruelty inflicted both on the Petitioner and her minor daughter, the Petitioner was compelled to leave the matrimonial home and return to her parents on 7th October, 2008. 
  2. On 6th December, 2008, the Respondent No.1, husband, filed an application under Section 9 of the Hindu Marriage Act, 1955 (Case No.609 of 2008) against the Petitioner, for restitution of conjugal rights. Unable to bear the shock of the incidents, which had taken place since the Petitioner's marriage with the Respondent No.1, the Petitioner's grandparents suffered heart and paralytic attacks, as a result of which they have become completely bed-ridden. According to the Petitioner, on account of the cruelty meted 3 
  out to her and the child, the Petitioner filed FIR No.7 of 2009 complaining of offences alleged to have been committed by the Respondent No.1 punishable under Sections 498-A and 406 IPC. 
2 It is the Petitioner's further case that in order to settle the matter peacefully, the Petitioner entered into a compromise with the Respondent No.1 on 25th February, 2009, so that she could start her life all over again and to acquire financial independence to provide for herself and for providing proper care to the child on her own. Pursuant to the terms of the compromise, the Petitioner withdrew her complaint under Sections 498-A and 406 IPC, but the Respondent No.1 failed to appear before the Family Court No.2 at Jaipur on 2nd December, 2010, to present a Petition for mutual divorce, as had been agreed upon in the compromise. 
  4. At this stage, it may be mentioned that on 5th May, 2009, the Petitioner filed a complaint against the Respondent No.1 and his family members under the provisions of the 4 
  Protection of Women from Domestic Violence Act, 2005, hereinafter referred to as `PWD Act') before the Upper Civil Judge (A,B) and Judicial Magistrate Serial No.18 Jaipur City, Jaipur, being Criminal Legal Case No.13 of 2009. Soon, thereafter, on 1st June, 2009, charge-sheet was filed against the Respondent No.1 and his family members in FIR No.7 of 2009 which had been filed by the Petitioner under Sections 498-A and 406 IPC. The next day, on 2nd June, 2009, the Respondent No.1, husband, moved an application under Section 21 of the above Act for visitation rights, which was dismissed by the learned Judge, Family Court. 
3 The Respondent No.1 filed Criminal Appeal No.455 of 2009 on 25th August, 2009 against the aforesaid order dated 2nd June, 2009, before the Court of Upper District Judge (Fast Track) No.9, Jaipur City, Jaipur, which dismissed the same. 
  6. On 18th September, 2009, the Respondent No.1 filed a Petition under Section 482 Cr.P.C. (S.B. Criminal Misc. Petition No.1977 of 2009) for quashing of the charge-sheet 5 
  in FIR No.7 of 2009 and further proceedings before the learned Judicial Magistrate-I, No.15, Jaipur City, Jaipur, were stayed therein. On 7th October, 2009, the Respondent No.1 filed another Petition under Section 482 Cr.P.C. (S.B. Criminal Misc. Petition No.2139 of 2009) for quashing of Criminal Legal Case No.13 of 2009 filed by the Petitioner under Section 12 of the PWD Act, 2005. The High Court also stayed the said proceedings pending before the Upper Civil Judge (A,B) and Judicial Magistrate, Serial No.18, Jaipur City, Jaipur. 
4 On 22nd January, 2010, when both the matters came up before the High Court for consideration, the High Court directed the Petitioner and the Respondent No.1 to settle their disputes and to apply for divorce by mutual consent within 15 days. The order was passed in the presence of both the parties. While giving the aforesaid directions, the High Court also passed orders allowing visitation rights to the Respondent No.1, husband, in respect of the minor child. 
5 On 17th February, 2010, the Respondent No.1 filed S.B. Criminal Revision Petition No.1 of 2010 before the Jaipur Bench of the Rajasthan High Court against the order dated 25th August, 2009 passed in Criminal Appeal No.455 of 2009 dismissing his application for visitation rights. The Respondent NO.1 also filed Application No.3051 of 2010 in S.B. Criminal Misc. Petition No.1977 of 2009 praying for similar visitation rights. On 8th April, 2010, the said application for visitation rights was allowed and the Petitioner was directed to arrange for the meeting of the Respondent No.1 with the Petitioner and their minor daughter at the office of the learned counsel for the Respondent No.1 on every Saturday between 11.00 a.m. and 1.00 p.m. 
6 This is the genesis of the problem which is the subject matter of the present Special Leave Petition. 
  10. According to the Petitioner, on 14th April, 2010, the Petitioner's brother got admission with I.I.P.M. in Delhi, which required him to shift to Delhi for his higher 7 
  education and the Petitioner also decided to come to Delhi to establish herself professionally to be able to maintain herself and her minor daughter. According to the Petitioner, since then she has been residing in Delhi and the order directing visitation rights to the Respondent No.1 to meet the minor child at Jaipur in the office of the learned counsel for the Respondent No.1 became extremely difficult for her. The Petitioner thereupon moved an application in the High Court on 30th April, 2010, for modification of the order of 8th April, 2010, and instead of Jaipur, to shift the place of visitation to Delhi. The said application was disallowed by the High Court on 5th May, 2010, resulting in the filing of the Special Leave Petition on 17th June, 2010. 
7 During the pendency of these proceedings, the Petitioner also filed Transfer Petition (Civil) Nos.856-857 of 2010 for transfer of Case No.279 of 2009, which had been filed by the Respondent No.1 under Section 9 of 
 
the Hindu Marriage Act and Case No.65 of 2009 also filed by him under Section 25 of 8 
the Guardians and Wards Act, 1890, from the Family Court at Jaipur to a Family Court of competent jurisdiction in Delhi. One of the grounds taken in the Transfer Petitions is that in the interest of the child, this Court had directed the Respondent No.1 to visit the child on the 2nd and 4th Saturday of each month at an address in New Delhi and the Petitioner was directed to take the child on the 1st and 3rd Saturday of each month to an address in Jaipur to enable the Respondent No.1 to meet his minor daughter. It was also submitted that the Petitioner had received threats that the case should be pursued in Jaipur instead of Delhi and that fearing for her safety and that of the minor child, she had prayed that the proceedings referred to hereinabove pending before the Court at Jaipur be transferred to a Family Court, having competent jurisdiction, to hear and try the matter in Delhi. 
  12. As will be seen from the narration of facts which intervened between the Petitioner and the Respondent No.1 during their brief matrimonial obligations towards each 9 
  other, the child has now become the source of acrimony between them. 
  13. Although, it was repeatedly urged on behalf of the Respondent No.1 that the Petitioner was still residing in Jaipur and not in Delhi and that the Transfer Petitions had been filed only to cause harassment to him and the other members of his family, such suggestions were strongly denied on behalf of the Petitioner. It was submitted on her behalf that on account of her minor child and the threats extended to her, it would prove extremely difficult for her to defend the case instituted against her by the Respondent No.1 or to conduct the cases which she had filed against the Respondent No.1 and his family members in FIR No.7 of 2009, in which charge-sheet had been filed, in Jaipur. In any event, considering the difficulties on either side in attending to the several cases pending between them and in order to balance the same, we are inclined to accept the submissions made on behalf of the Petitioner and to modify the order dated 8th April, 2010, whereby the Petitioner was directed to 10 
  arrange for the meeting of the Respondent No.1 with herself and their minor daughter in the office of the learned counsel for the Respondent No.1 on every Saturday between 11.00 a.m. and 1.00 p.m. and also the subsequent order dated 5th May, 2010, passed by the High Court rejecting her prayer to move the place of visitation from Jaipur to Delhi. 
  14. It is true that transfer of the several cases to Delhi is likely to cause some inconvenience to the Respondent No.1 and his family members, but it cannot be denied that it would be easier for the Respondent No.1 to attend to the proceedings in Delhi than for the Petitioner to attend to the same in Jaipur, while staying in Delhi with her minor child. We, therefore, see no substance in the persistent demand of the Respondent No.1 that he should be allowed to meet the Petitioner and their minor child at Jaipur to enable him and his family members to meet the child on a regular basis. In our view, it is the Respondent No.1 who should make an effort to meet his minor child in Delhi as and when he wishes to do so. The Petitioner can have no 11 
  objection whatsoever to such an arrangement and must also ensure that the child is able to meet her father in terms of the order of this Court on all weekends in New Delhi instead of the second and fourth Saturday of each month. 
2 As far as the difficulty expressed on behalf of the parents of the Respondent No.1 is concerned, they will be free to apply to the Trial Court for exemption from personal appearance on the dates of the different cases and if such applications are made, the same should be considered by the Trial Court looking to the physical difficulties that may be faced by the parents of the Respondent No.1, who are both considerably aged. The visitation rights granted to the Respondent No.1 will have equal application to his parents and they too will be at liberty to visit the minor child in Delhi, as and when they wish to do so, along with the Respondent No.1. 
  16. The application for modification of the order dated 8th April, 2010, filed by the Petitioner before the High Court on 30th April, 2010, which was dismissed by the High 12 
  Court, is, accordingly allowed along with the Transfer Petitions filed by the Petitioner. The order of 8th April, 2010, is modified to the extent indicated above, whereby the Respondent No.1 and his parents will be entitled to meet the minor child, Mannat, on every Saturday in New Delhi, between 10.00 a.m. and 6.00 p.m. In the event, the child is willing, the Respondent No.1 may also take her out for the day and return her to the custody of the Petitioner within 6.00 p.m. This arrangement will continue, until further orders. 
  17. In addition, Transfer Petition (Civil) Nos.856-857 of 2010 filed by the Petitioner are allowed. Let Case No.279 of 2009, which had been filed by the Respondent No.1 under Section 9 of the Hindu Marriage Act and Case No.65 of 2009, also filed by him under Section 25 of the Guardians and Wards Act, 1890, be transferred from the Family Court at Jaipur to a Family Court of competent jurisdiction in Delhi. The transferor Court is directed to send the records of the aforesaid cases to the transferee Court, so that the matter 13 
  may be heard and disposed of by the transferee Court with the utmost expedition. 
3 In view of the facts involved, the parties will each bear their own costs in these proceedings.
............................................................J. (ALTAMAS KABIR)
............................................................J. (SURINDER SINGH NIJJAR)
............................................................J. (J. CHELAMESWAR)
New Delhi
Dated: 14.12.2011

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