Dear Sh. CGM, I do not agree with your observation - " The wordings of the act are such that only the petitioner (woman) can apply for visitation". Now I quote the relevant provision from the bare Act.
"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. tc "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 last part of the clause above proviso gives the right to the respondent to move an application for the visit of the of the child. Strict reading of this provision shows that only wife has got a right to have custody, but the respondent has got the right to pray for visitation rights. The word application appears in this section, is not an interim application to be filed by the aggrieved person (wife) but the main application u/s. 12 of the Act. So, first dispel the thought that only wife has got such right to exercise the remedy available under this Act. At the time of pending proceedings under DV Act, the child is under the custody of the aggrieved persons, the husband can seek the visistation rights of his child(ren). Now, the S.C. case you quoted is not much useful for the reason that in that case, the S.C. was dealing with the transfer petition and the wife's hardship of taking the children to Rajasthan from Delhi to comply the visitation order passed by the Magistrate under section 21 of DV Act. The legality or maintainability of such order passed by the magistrate was never under challenge before the S.C. Actually, most of these issues would be resolved at Magistrate court level or in the first appeal before the ASJ, you cannot find many authorities on this particular point. Any how, in the case of BHUWAN DUA VS. STATE OF UTTARAKHAND & ANR. (III - 2011-DMC-848), the Uttarakhand H.C. held that Magistrate under Section 21 of DV Act has got jurisdiction to grant visitation rights. So, you can rely on it. In my knowledge, Delhi High Court has not adjudicated on this point. But in the case of Payal Agarwal Vs. Kunal Agarwal III (2014) DMC 122 Raj., the Rajasthan High Court delved upon this issued. In this case, the Magistrate granted visitation rights. Later on Family Court under Sectin 7 of the Act passed certain orders contra to the magistrate's orders. Before the High Court, the question came up, which order has got override effects. It was held that when family court exists in the area, then magistrate does not have power to pass orders under Section 21 of DV Act. This is for your information and not to place before the court and as it being latest judgment, the court and the opposite counsel, we hope, may not be wiser.
