The Indian legal set of laws has always been proactive in defending children’s welfare assistance and resolving marital disputes between the fighting guardians such that the kids don’t bear their brunt. With that impact, the Protection of Women from Domestic Violence Act, 2005 (“DV Act”) has been instituted to defend women’s interests, however children also. Among other things, the Act permits an abused individual to apply to the court for acquiring a request for transitory guardianship of a kid or kids. The applicable provision has been delivered herewith for our reference.
“Section 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 a 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 the 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.”
Child Welfare Principle:
Child custody is always unfortunate, not just 100% of the time for the mates who resort to this sort of prosecution, which is the branch-off of wedding disunity and results in their division from one another, yet additionally for their kid/kids who become the topic of this sort of debate. For their appropriate childhood, these minor kids need the organization of both the guardians – mother just as the dad, for monetary reasons, security reasons, psychological reasons, and so on. They need the affection for both their folks. Not just partition of their folks from one another denies these kids organization of both the guardians when it brings about to fight in the court of authority in the courts; the circumstance turns out to be more horrible for these children in light of different clear reasons. To that end, such cases that genuinely sway these children are appalling. The fundamental thought while concluding such guardianship matters is to see where the welfare of kids lies. The courts append standout significance to the interests of children. Any remaining contemplations are optional. A wronged mother might even be denied care of her kid under Section 21 in the event that the court considered her to be unequipped for dealing with the kid without anyone else. The courts try not to make any choice against the child’s prosperity.
Case: Oliver Menezes v. Serita Therese Mathias (20th May, 2021)
For this situation, the Karnataka High Court held that according to Section 21 of the Domestic Violence Act, issues including the brief authority of kids could be managed under the Act; however, separate from procedures are forthcoming under the Indian Divorce Act. Justice K.S. Mudagal observed as follows:
“The Domestic Violence Act is special legislation authorized to enact the purpose of promoting family relationship and organization of the family. The demonstration is intermediary between the civil laws like Guardians and Wards Act, Hindu Minority and Guardianship Act, Hindu Marriage Act, and so on, and the criminal laws like 361, 498-A, or such offenses under the Indian Penal Code”. The facts that prompted the current request is as per the following:
The marriage of the petitioner (spouse) and respondent (wife) was solemnized in 2011. Out of the wedlock, the couple had a girl named Sarah in 2012 and a child in 2015. Thusly, relations between the solicitor and respondent presently do not stay sincere.
At that point, the spouse recorded a criminal appeal before the Magistrate court, Mangaluru, under Section 12 of the Domestic Violence Act against the husband. Before that, the couple had documented grumblings against one another before the police.
Indeed, even before the notice was given in the request, the spouse intentionally showed up under the steady gaze of the preliminary court. The preliminary court subsequent to hearing the gatherings passed an interval request guiding the spouse to surrender the kid to the wife during the pendency of the case.
Distressed by this, the spouse shifted the High Court to set the side between time requests and suppress the procedures before the trial court.
Perceptions of the Court:
The Karnataka High Court, in the wake of hearing both the gatherings held that, Section 21 of the Domestic Violence Act overriding affects some other law and that impermanent care of the kids couldn’t be managed in the procedures under the Indian Divorce Act or Guardians and Wards Act.
“Thusly, there is no legitimacy in the dispute that the pendency of the marital cases strips the locale of the Magistrate to settle the application for the care of the kids or the application documented under Section 12 of the DV Act.”
- ‘Child Custody: Domestic Violence Act | Hello Counsel’ (Hellocounsel.com) <https://www.hellocounsel.com/child-custody-domestic-violence-act/> accessed 8 January 2022
- ‘Temporary Custody Of Children Can Be Dealt With Under Domestic Violence Act: Karnataka High Court – Abbasi & Associates Law Firm’ (Abbasilegal.com) <https://abbasilegal.com/temporary-custody-of-children-can-be-dealt-with-under-domestic-violence-act-karnataka-high-court/> accessed 8 January 2022
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