Dv and child custody

@ Author,

My interest in your query arise after reading your inked para 4. Hence, I am not touching your previous para questions as they are more or less well discussed here.

1. See GWA is a general purpose "specific" Civil remedy The Act having CPC as procedure followed which colly. are much wider to over-rule any other Act or quasi Code(s) dealing with "specifics" whereas DV The Act, 2005 is a Special Provision given nature of The Act and was never insterted in The Code say after older S. 488 CrPC having CrPC as procedure to run various nature of proceedings using its various Sections which colly. have narrow limited interpretation when touching matrimonial subjects relating to minor(s) in brush with Law. DV Act is not meant for minors long term relief specifics as most crucial test "welfare of minor you are not touching under Dv The Act".

2. In matrimonial Laws Special Acts takes over precedent wise in proportion to Civil matrimonial Laws such as GWA, S. 125 CrPC (older version was called S. 488 CrPC) in reference to context. However since DV The Act, 2005 being a very new evolving Special Provision given nature of The Act and not (inserted as Section of) The Code no such precedent has come to atleast to my knowledge when GWA Application is also running in parallel based on reference to context facts. But even so, if such situation arise and one need to face them then my view would be to approach HC under Writ Jurisdiction and get stay of S. 21 DV IA if facts are similar to that of the queriest.

Reason being S. 21 DV The Act is prime-facie interlocutory whereas two major Sections under GWA The Act are both interlocutory as well as permanent relief wise and touches core "welfare of minor" point. Also the “intent and object” behind any Act or Sections of the Code are also seen while interpreting Law in conflict. S. 21 DV Act, 2005 “intent and object” is clearly built on a very narrow yet quick fix approach by legislatures (faulty approach I will say). Madam Indira Jaisingh via her sentiment and emotions based grandstand and postured speech before Legislatures (while lobbying for the Act to horridly get it passed by both House) half a dozen years back herself said on record that “many women when kicked out of their matrimonial homes are left out on custody of child as husband and In-laws refuse to give the child to natural mother” hence to include such abala mothers S. 21 DV Act is inserted to give them “quick remedy” under garb of domestic violence larger than life gospel truths. Also if one sees in plain vanilla S. 21 DV Act, 2005 prayer as remedy of abala metro wife cases which were decided till date across pan India one will notice clear wordings of ld. Magistrate similar to above intent and object undrer S. 21 DV The Act while Ordering Protection Order in favor of mother but those are the cases where such controversy never arise as what this queriest brings to board for discussions. So there it leaves scope to shadow box GWA which is much wider in its "intent and object" wise in comparision to DV The Act is my clear import of interpretation of the two in reference to context until some communist ideology (interpretation) interjects herein .

Further that means you are not taking into account “welfare and best interest of the child” which gets opined in a much better way under GWA The Act having much wider interpretation as in its S. 17 GWA The Act. Hence when “quick fix” remedies are distributed as largesse to sari, sindoor and glycerin litigant then such Order(s) remains always open for Appeal and thus it should be shunned about by Appellate Courts as always which one sees in practicality.

Being democracy and having freedom of speech @ Lord can disagree to me on above reasoning but then place here your cognizant reasoning which atleast prudent persons can grasp.

Be it as is, as remedy in reference to context, if facts applied then 2 years suo-motu custody retention itself will be major Bar for her to remove conscious switching custody now under S. 21 DV Act even if Special Act nature is interpreted as in above reasoning put for discussion on the table. Otherwise so S. 21 DV The Act is enabling Section of The Act, 2005 to switch immediate custody by metro wife under the garb of Protection Order. which again is wrong interpretation as you may give Class Legislation to women by enacting women specific Laws (till same is not challenged) but a minor’s best interest and welfare are never covered under Class legislation for a simple reason minor is property of both natural parents which is well recognized even by Law of the land so there it is, gender Classification approach you are adopting in DV Act specific enabling Section 21 (DV The Act)  which again can be shunned by Apex Court as per catena of decisions specific to Class Legislation principles if challenged.

Hence nip of fact, it is a very interesting query raised here for further generic discussion in reference to context.

I have read couple of judgements where crux was following,

Wife left kid in custody of husband and ran away..

After couple of years she come back with DV and asks for custody...

Judge passes interim order and asks custody of child to be handed over to wife..

Husband appeals against it that since last 2 years child is with me and happily staying with me hence status quo should be maintained etc etc.

Husband wins.. wife gets visitation though.

I will try reseraching the judgements and post link here.

@ Never Give Up

Here the moot question is totally different to what you touched base. Kindly read que. no. 3 of queriest.

The Judgment(s) that you plan to uproot and place them here are also known to me. Invest time and energy to basket here Judgment in relating to moot point asked by queriest to see reasoning of Appellate Court (if any).

Addendum;

I feel you and @ Stanly are now quite competent enough to further the discussion on this nugatory question of queriest. Reason being take it is multiple maintenance cases scenario, offcourse clarity now is there as to which one supersedes which one if multiple applications filed and question of set-off etc. is also clarified with reasoning by Courts – right! Hence these last sentences are as hint try again both of you. Dimag ladao bhai before Communist ideology takes over ……

Originally posted by : rajiv_lodha
	3) Can DV orders give permanent custody of the child to her, if she demands? In such a case, what wil happen to GWA case which may be running simultaneously? Which case decision over-rules the other?

In case she had asked for reliefs u/s 21 of the act she would  get temporary custody . But as you are well aware that the act itself is gender biased and does not give the male any chance of temporary custody but only visitation can be granted in this act.

But i presume in GWA if the male is handed over custody first and than through DV u/s 21 of the act she applies i dont think she would be in a position to get the custody . 

@ Never Give up lot of judgements when the father has custody based on the childs preference custody remains .

Sirjee,

You are right, i overlooked the moot point and wrote my response above. I am not that competent to answer on point 3.

However, Let me narrate my experience in one of the proceeding of DV. Husband and wife have 2 kids. one with husband one with wife.  Wife has asked for custody of the kid who was with father ,in S21in domestic violence case. Judge took interview of child in open court, child was brilliant and answering all questions of judge. Child was in custody of father. Father asked if child wants to go to mother for some time. Child said i am happy with father. Child age around 8 years.

Judge denied handing over child to wife and father enjoys company of his kid. *Though he misses company of other kid who is with wife..

Thanx members for comprehensive replies. What i think is --- DV act is ill drafted, is myopic & is bound to raise conflicts in basic law pocedures/codes too in the days to come.

* Is it possible that SC wil take a serious note to set the house right?? Very unlikely coz to the best of my knowldege, SC has not even decided on RETROSPECTIVE NATURE of the act after a bunch of petiotions to do r rotting away there.

* Plz guide me on other points too, the main favor point to me in any act is that CHILD IS WITH ME FOR PAST 2 YRS & MOTHER HASNT PUT ANY CASE/APPLICATION 4 PERMANENT CUSTODY.

Hello Rajiv,

Look at the judgement below, i think it should help you  (Both from Guj HC)

(Crux : Father has custody of child, mother filed GWA case, mother has filed DV and custody was denied to mother in DV, only visitation granted)

https://indiankanoon.org/doc/1492403/

https://indiankanoon.org/doc/432251/

Note : I found above judgements by using search terms "wards act domestic violence act" @ "https://indiankanoon.org/search/?formInput=wards+act+domestic+violence+act"

You may find many more, i will keep on posting more judgements as and when i find it.

@ Rajiv why are you going paranoid be happy with what you have and enjoy it  . You are one of the few priviliged persons to have it .

See how Tajobs has concluded on the matter  he has not even left any space for us to debate further "Multiple maintanence cases scenerio V/s Multiple custody cases scenerio "  you all know how it works 

When maintanence is awarded in one scenerio how would we  fight back with the next maintanence case going on or do we say " Your  honour maintance is awarded in crpc 125  i dont mind paying for the maintanence order in DV  as well as  HMA sec 25 " would we pay multiple maintanence ??

so is the case of child custody.

But i  have another que what when wife has custody of the minor and has asked for relief u/s 21 of the DV act isnt it a mockery of law and abusing the process of court asking for a false relief .