Dv s 21 custody orders

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.

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

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.

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..

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

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

@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.

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.

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

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 . 

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.

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.

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 .