Order Of Restraint Against Husband Under Domestic Violence Act Does Not Preclude Family Court From Making Arrangement For Child Visitation: Delhi High Court

CASE TITLE
Shilpa Singh vs. Vikas Khanna

DATE OF ORDER
13 April 2022

CORAM
Hon’ble Mr. Justice Yashwant Varma

CASE CITATION
PARTIES
Petitioner- Shilpa Singh
Respondent- Vikas Khanna

SUBJECT

The instant petition was filed against an order of the Family Court granting visitation rights to the husband of the plaintiff. The Court however dismissed the appeal on the grounds that the Family Court was empowered to make such visitation arrangements.

OVERVIEW

• This petition was directed against an order dated 02 April 2022 passed by the Family Judge granting visitation rights, though it would have been supervised and in the complex of the Court.
• The order was condemned by the counsel of the plaintiff, challenging that the restraint imposed by the Court dealing with the application made under the Protection of Women from Domestic Violence Act, 2005 [PWDV Act] and especially the order of 06 August 2021 made therein, the rights of restricted visitation as granted by the Family Judge were not only unharmonious and irrevocable but also completely unjustifiable and unlawful.
• Court found no ground to sustain the challenge on grounds addressed by the Counsel for the Plaintiff for the following reasons: -

1. The Court noted that the order passed under the PWDV Act was based upon the allegations made by the petitioner against the husband. There was no allegation of cruelty or physical abuse by the husband in relation to the children.
2. Keeping in mind the allegations laid by the petitioner, the Court noted that the respondent stood restrained from communicating with the children and the complainant in any manner at all, taking into consideration the order passed in the PWDV Act proceedings. The custody of the children would not be disturbed by the respondent was also laid down in the proceedings.
3. The Court was of the opinion that the order was not detract from the jurisdiction of the Family Court to consider the grant of interim visitation rights to the father of a minor child.
4. The Court was also of the opinion that the provisions of the PWDV Act do not deprive the Family Judge of the jurisdiction to make arrangements as expressed in the order disputed.
5. Fundamentally the scope of the two competing statutes (The Family Courts Act of 1984 and PWDV Act) must be in harmony to avoid repulsion and conflict.

JUDGEMENT ANALYSIS

The Hon’ble Justice Yashwant Varma relied on a 2017 judgment of the Supreme Court in Amit Kumar & Anr. Vs. Charu Makin [2017 SCC OnLine Del 7861].

• It was held that the Court under Section 21 of the PWDV Act can pass order granting temporary custody of the child/children and/or make necessary arrangements for the visit of the child as an interim measure in the best interest of the child and to avoid any harm to the interest of the child/children. PWDV Act is not a final remedy for the custody and guardianship issues of a minor child. Section 7(g) of the Family Courts Act, 1984 vests jurisdiction in a Family Court to decide suits or proceedings in relation to the guardianship of a person or the custody of or access to any minor.
• The petitioner had already availed the remedy under the Family Courts Act, 1984 and had lost. The prayer made in the present petition could not be permitted to continue with the remedy. Furthermore, the counsel for the petitioner, had already challenged in an appeal before the court the order dated 26 December 2016 passed by the learned Additional Principal Judge, Family Court, West District.
• A similar issue was brought before the Hon’ble High Court of Rajasthan, Payal Agarwal v. Kunal Agarwal [2014 LawSuit (Raj) 545].
• It was held that under Section 21 of PWDV Act, independent remedy is not been provided to seek custody of a minor child and jurisdiction is conferred on the Magistrate to grant temporary custody of such a child to the aggrieved person during the course of hearing of an application for grant of protection order or for any other relief under the provisions of Act. Whereas under the provisions of the Family Courts Act of 1984 any person can file an independent suit or proceeding in relation to the guardianship of the person or custody of or access to any minor.
• Thus, the ambit of the Family Courts Act of 1984 is much wider in comparison to Section 21 of PWDV Act. The object of the Family Courts Act of 1984 was for the establishment of special Courts whereas the object of PWDV Act was to protect the woman from domestic violence and to prevent the incidents of domestic violence in the society.

CONCLUSION

The petition filed by the Counsel of the Plaintiff (Shilpa Singh) was failed and dismissed along with pending applications.

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