BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 08/04/2008 CORAM The HONOURABLE MR.JUSTICE S.PALANIVELU Crl.O.P.No.569 of 2007 in M.P.Nos.1 & 2 of 2007 1.A.Gomathieswar .. Petitioners 2.Amirthalingam 3.Jayalakshmi 4.Meenu Vs. G.Rajameena .. Respondent Prayer This petition filed under Section 482 of Cr.P.C., praying to call for the records in C.C.No.23 of 2007 on the file of the learned Judicial Magistrate No.II, Madurai and quash the same. !For petitioners ... Mr.S.Ravi ^For Respondent ... Mr.S.Subbiah :ORDER
The first petitioner is the husband of the respondent. Second and third
petitioners are his parents and fourth petitioner is his sister. The marriage
of the petitioner with the respondent was solemnized on 05.09.2003 at Chennai.
After the marriage there had been a strained relationship between the spouses
which culminated in lodging of a complaint by the respondent in Crime No.13 of
2006 on 30.09.2006 on the file of the Thallakulam Police Station at Madurai,
registered under Sections 498 and 342 IPC and under Section 4(1) of Dowry
Prohibition Act. A son was born to them who has been named as ‘Arumugam’ and he
is now aged at about three years. The respondent has filed H.M.O.P.No.443 of
2006 on the file of the Family Court, Madurai against the first petitioner for
restitution of conjugal rights, while the first petitioner has instituted a
matrimonial proceedings in O.P.No.284 of 2006 on the file of learned Principal
Sub Judge, Chengelpet for dissolution of marriage.
2.The respondent filed a petition before the learned Judicial Magistrate
II, Madurai under Sections 23(1) and 21 of Protection of Women from Domestic
Violence Act, 2005 for the relief of custody of the child namely, Arumugam in
her favour from the present petitioners.
3.The learned counsel for the petitioner Mr.S.Ravi, would contend that the
petition before the learned Judicial Magistrate No.2 seeking custody of the
child is not at all maintainable before the Judicial Magistrate Court, and that
for the said relief the respondent has to approach the District Court under the
Provisions of Guardian and Wards Act, 1890. It is his further contention that
no provision has been embodied in Protection of Women from Domestic Violence
Act, 2005 (herein after referred to as “the Act”) and the filing of the petition
for the very purpose of getting custody of the child is in violation to the
provisions of the Act. It is his bottom-line argument that only in a
proceedings under Sections 18 to 20 of the Act, section 21 of the Act could be
invoked for the relief of temporary custody of the child and without initiating
any proceedings under Sections 18 to 20, no petition will lie under Section 21
of the Act independently.
4.The learned counsel for the respondent Mr.S.Subbiah, would state that
respondent has filed main complaint before the Judicial Magistrate Court No.II,
Madurai under Section 21 of the Act, for the custody of the child in which, she
has filed a miscellaneous petition for interim relief of temporary custody of
the child.
5.In this context, it is to be mentioned here that Section 18 of the Act
provides for protection norms to be passed by the competent Judicial Magistrate,
Section 19 deals with residence norms to be issued by the Judicial Magistrate
under Section 12(1) of the Act and Section 20 enlists the monetary reliefs
available to the aggrieved person while disposing of an application under
Section 12(1) of the Act. It is profitable to extract Section 21 of the Act,
which reads as follows:
“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.”
6.A close reading of Section 21 of the Act would candidly show that only
if a protection petition is pending before the competent Judicial Magistrate,
then the aggrieved person may seek relief of temporary custody of any child or
children. Pendency of petition for protection order or any other relief under
this Act is a sine quo non for filing of application under Section 21 of the
Act. It is a conceded fact that no petition either for protection order or for
any other relief under the Act has been filed by the respondent before the
Judicial Magistrate Court. In view of this matter, the contention that the
petition for temporary custody of the child before the Judicial Magistrate Court
independently, i.e., without filing any petition for the relief provided in
Sections 18 to 20, would stand, deserves to be discountenanced.
7.In the light of the above said observation, the petition filed by the
respondent before the Judicial Magistrate Court for custody of child cannot be
sustained as the Act does not provide for the same. She is always at liberty to
invoke the jurisdiction of District Court under the Provisions of the Guardian
and Wards Act, 1890 for necessary relief in this regard. This petition deserves
to be allowed.
8.In fine, the petition is allowed quashing the proceedings in C.C.No.23
of 2007 on the file of the Court of Judicial Magistrate No.II, Madurai.
Consequently, the connected miscellaneous petitions are closed.
Mpk
To
1.The Judicial Magistrate No.II,
Madurai.
2.The Public Prosecutor
Madurai Bench of Madras High Court,
Madurai.