Temporary custody of children can be dealt with under Domestic Violence Act: Karnataka High Court

Violence against women has been a serious problem in not only India but all around the world. In India married are more likely to experience violence be it physical or sexual by their husbands. Acts of physical violence by the husband against his wife include: pushing her, throwing things at her, slapping her, twisting her arm, pulling her hair, punching, pinning her to the ground, kicking her left right and center, dragging, beating, trying to choke or burn her on purpose, and threatening her or attacking her with a weapon. On the other hand, acts of sexual violence by the husband include physically forcing the wife against her will to have sexual intercourse or perform other sexual acts that she is not willing to perform.

To eliminate violence against women, India has adopted the Convention on the Elimination of All Forms of Discrimination against Women and the Universal Declaration of Human Rights. Both of these Declarations ensure that women are given equal rights as men in the society and are not subjected to any kind of discrimination. It is pertinent to mention that the Constitution of India also guarantees substantive justice to women. Article 15 of the Constitution provides for prohibition of discrimination against the citizens on grounds of religion, race, caste, sex or place of birth or their subjection to any disability, liability or restriction on such grounds. Article 15 (3) gives power to the legislature to make special provision for women and children. In exercise of this power, the Protection of Women from Domestic Violence Act was passed in 2005.

Domestic Violence Act, 2005 not only protects the rights of aggrieved women but also keeps in mind the well-being of children in a way that the act allows the aggrieved woman to put forth an application in Court for obtaining an order for temporary custody of her child or children.
Section 21 of the Domestic Violence Act, 2021 talks about child custody. The section reads as under:
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 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.”

Case: Oliver Menezes v. Serita Therese Mathias (20th May, 2021)

In this case the Karnataka High Court held that as per Section 21 of the Domestic Violence Act, issues including temporary custody of children can be dealt with under the Act though divorce proceedings are pending under the Indian Divorce Act. Justice K.S. Mudagal observed as follows:
“The Domestic Violence Act is a special legislation enacted for the purpose of promoting the family relationship and institution of family. The act is an intermediary between the civil laws like Guardians and Wards Act, Hindu Minority and Guardianship Act, Hindu Marriage Act etc., and the criminal laws like 361, 498-A, or such offences under the Indian Penal Code”.  

Facts that led to the present petition are as follows:

  • The marriage of the petitioner (husband) and respondent (wife) was solemnized in 2011. Out of the wedlock, the couple had a daughter named Sarah in 2012 and son in 2015. Subsequently, relations between the petitioner and respondent no longer remained cordial.
  • The wife then filed a criminal petition before Magistrate court, Mangaluru, under Section 12 of Domestic Violence Act against the husband. Before that the husband and wife had filed complaints against each other before the police.
  • Even before notice was issued in the petition, the husband voluntarily appeared before the trial court. The trial court after hearing the parties, passed an interim order directing the husband to hand over the children to the wife during the pendency of the case.
  • Aggrieved by this, the husband moved the High Court for setting aside the interim order and quashing the proceedings before the trial court.

Observations of the Court:

The Karnataka High Court after hearing both the parties held that, Section 21 of Domestic Violence Act has an overriding effect on any other law and that temporary custody of the children could not only be dealt with in the proceedings under the Indian Divorce Act or Guardians and Wards Act.

“Therefore, there is no merit in the contention that the pendency of the matrimonial cases divest the jurisdiction of the Magistrate to adjudicate the application for custody of the children or the application filed under Section 12 of the DV Act.”

Read Judgement here