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Case Details

  • In the case, Oliver Menezes vs Serita Therese Mathias, the marriage between the couple was solemnized in 2011 and they had a daughter and son out of wedlock. However, the relations between them became strained.
  • They had filed many complaints before the police against each other.
  • The woman had filed a criminal petition before Magistrate Court in Mangaluru u/s 12 of the Domestic Violence Act against her husband.
  • After hearing both the parties, the trial court issued an interim order directing the husband to give custody of the children to their mother during the pendency of the case.
  • Aggrieved by this order, the husband approached the Karnataka High Court seeking to quash the lower court’s order.
  • The Karnataka High Court was of the opinion that the DV act is a special law intended to protect and promote the institution of family.

Arguments of the Petitioner

  • The Petitioner husband contended that only the court having the jurisdiction of matrimonial cases or the court of Guardians and Wards Act is competent to decide the issue of custody of children.
  • The husband argued that both he and his wife had filed a separate petition for dissolution of marriage and therefore custody of children can be granted in those proceedings only.
  • It was also argued that the parties were Christian and were hence governed by the Indian Divorce Act.

Arguments of the Respondent

  • The Counsel for the Respondent while opposing the contentions of the Petitioner held that since the order of the trial court is appealable one, the current petition before u/s 482 of CrPC before the High Court is non-maintainable.
  • It was also argued that Petition u/s 482 of CrPC would not lie since the proceedings under the DV Act are civil in nature.
  • The Respondent also alleged that the husband’s mother ill-treated the minor daughter and hence the welfare of the children could not be guaranteed in that household.

Court’s Order

  • Considering the submissions made by the Petitioner and Respondent, the court held that section 21 of the DVA makes it clear that the Act has an overriding effect on any other law.
  • Therefore it was held that temporary custody of the children should only be dealt with under the Indian Divorce Act or Guardians and Wards Act.
  • The Court held that any order passed by the Magistrate Court is appealable in the view of Article 29 of the Act.
  • The Court also observed that the husband filed the petition without pursuing the hearing of the application that is still pending before the trial court.
  • The Hon’ble High Court said that the pendency of the petition will not prohibit the lower court from adjudicating the application for children’s custody on a plea under the DV Act.
  • It also held that power u/s 482 of CrPC to quash proceedings has to be sparingly exercised.
  • The Hon’ble Court refused to entertain the petition filed by the husband seeking to quash the subordinate court’s order on these grounds.

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