A conjoint reading of section 21 and section 23(2) of the Protection of Women from Domestic Violence Act shows that the Magistrate is empowered to pass an ex parte order in granting interim or temporary custody of any child or children to the aggrieved party even basing on the affidavit filed by such aggrieved party without notice to the respondent. This was held by a single bench of Justice S. K. Sahoo of Orissa high court in case of Vinay Gupta v. Saveri Nayak [CRLREV No. 635 of 2016; decided on 28 November 2016].
In this case, on 04.07.2016, the respondent-wife had filed an application under section 23 of the Protection of Women from Domestic Violence Act before the S.D.J.M. (Sadar), Cuttack in her pending Domestic Violence case praying for ex parte interim custody of the daughter (of age about 4 years) and for a direction to the petitioner-husband to hand over the girl child to the opposite party forthwith. It was stated in the application that the husband was working at New Delhi and he was spending fourteen to sixteen hours in his office and leaving no time to spend with the girl child and therefore, it was difficult to conceive that the child would be living in any kind of congenial atmosphere and accordingly, ex-parte order of interim custody of the girl child was prayed for.
The Magistrate passed the impugned order on 18.07.2016 wherein he observed that as per the domestic incident report, the husband had subjected his wife to domestic violence and the age of the daughter of the parties is about four years. The Magistrate allowed the prayer made in the petition under section 23(2) of the P.W.D.V. Act regarding ex parte order for interim custody of the girl child in favour of the wife.
Appeal filed against this order by the husband was dismissed by the Sessions Court with liberty to approach the Magistrate court.
The high court entertained the revision petition against the said appeal, even though there is no specific provision relating to preferring a revision petition in the High Court against the order of the Appellate Court in a P.W.D.V. Act proceeding since the high court felt that where there is grave miscarriage of justice or abuse of process of the Courts or there is failure of justice by passing the order, in order to meet ends of justice, the High Court can entertain a revision petition.
The high court held that Section 21 of the P.W.D.V. Act empowers the Magistrate to grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf, at any stage of the hearing of the application for protection order or for any other relief under the Act. Section 21 of the P.W.D.V. Act further empowers the Magistrate to make arrangements for visit of the child or children by the respondent, if necessary. However, the Magistrate can refuse to allow the respondent to visit the child or children if he is of the opinion that any such visit would be harmful to the interests of the child or children.
The court further held that Section 23(1) of the P.W.D.V. Act empowers the Magistrate to pass an interim order as he deems just and proper while adjudicating any proceeding before him. Section 23(2) of the P.W.D.V. Act empowers the Magistrate to grant an ex parte order on the basis of affidavit filed by the aggrieved person under sections 18, 19, 20, 21 and 22 against the respondent if he is satisfied that the application filed by the aggrieved party prima facie discloses that the respondent is committing or has committed an act of domestic violence or there is a likelihood that the respondent might commit an act of domestic violence.
The high court also held that in view of the conjoint reading of section 21 and section 23(2) of the P.W.D.V. Act, it is very clear that the Magistrate is empowered to pass an ex parte order in granting interim/temporary custody of any child or children to the aggrieved party even basing on the affidavit filed by such aggrieved party without notice to the respondent. The only criteria for passing such ex parte order must be a case of exigency under the facts and circumstances of each case which can only be considered if the application prima facie discloses regarding commission of domestic violence or likelihood of commission of such domestic violence on the aggrieved person. There must be sufficient and compelling reasons to persuade the Court to pass such ex parte interim/temporary custody order of the child. For example, if the Magistrate is prima facie satisfied that the minor child of tender age has been separated from the mother forcibly or custody of the child with the respondent is harmful and against the interest of the child and further custody with the respondent is likely to aggravate the situation, the Magistrate can certainly pass ex parte interim order relating to grant of interim/temporary custody of the child or children in favour of the aggrieved person basing on the affidavit in as much as if prompt action at that stage is not taken then the legislative intent of making such a provision would be frustrated. At a later stage, the Magistrate being satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order passed then he can entertain the application filed on that behalf by either of the parties and can pass appropriate order recording his reasons. The Magistrate has got the power to revoke the ex parte order if he is satisfied that the order has been obtained by the aggrieved person by suppression of material facts or misrepresentation or by playing fraud upon the Court.
Accordingly, it was held that the Magistrate has got the jurisdiction to entertain an application under section 23(2) of the P.W.D.V. Act relating to passing an ex parte order for grant of interim custody of the child in favour of the aggrieved person.
Read full order of the court: