Delhi High Court: Jyoti Singh, J., while addressing a matter with regard to “custody order” as being the primary relief, held that,
Legislature in its wisdom has provided for Appeal under Section 29 of the Act against all “orders” and has not made any exception to orders relating to custody.
Petitioner sought directions with regard to setting aside the Order passed by Metropolitan Magistrate under the Protection of Women from Domestic Violence Act, 2005.
Due to a rift in petitioner and respondent’s relationship it resulted into respondent taking away their 3 daughters under a separate roof.
Reliefs that petitioner was seeking for in the initial complaint under the said Act was “Protection Order” under Section 18 of the Act, “Custody Orders” under Section 21 of the Act. Along with the said complaint, an application under Section 23 for various other reliefs was also filed by the petitioner.
Metropolitan Magistrate had directed that the custody of the children would continue to remain with the father/respondent and as an interim measure visitation rights were granted to the petitioner.
Decision
Relying on several decisions of the High Court and Supreme Court in Gian Singh v. State of Punjab, (2012) 10 SCC 303 it was found that,
“…Supreme Court has time and again spelt out clear restraints on use of extraordinary powers and observed that High Courts should not go beyond those wholesome inhibitions, unless the extraordinary circumstances cry for immediate and timely judicial interdiction or mandate.”
“Mentor of law is justice and a potent drug should be judicially administered.”
High Court held that it is not persuaded in the facts and circumstances of the present case, to entertain the petition in its extraordinary power under Section 482 CrPC, given the fact that there is a clear remedy of Appeal under Section 29 of the Act.
Argument — Matter related to custody of minor girls, remedy of appeal is not efficacious
Court put forth the reasons for not accepting the said argument and stated that,
- Legislature in its wisdom has provided for Appeal under Section 29 of the Act against all “orders” and has not made any exception to orders relating to custody.
- It is not shown why the Petitioner cannot resort to the remedy of an Appeal and why the Appellate Court is incapable of or incompetent to exercise its jurisdiction to deal with an impugned order of temporary custody, both in law and facts.
In view of the above reasons, petition was dismissed. [Sirisha Dinavahi Bansal v. Rajiv Bansal, 2020 SCC OnLine Del 764 , decided on 20-07-2020]