Criminal Writ Petition No.1156 of 2013

14th March, 2014

Petitioner Counsel: Shri V.D. SAPKAL
Respondent Counsel: Shri S.P. BRAHME, Smt. S.G. CHINCHOLKAR

Cases Cited:
Wasudeorao Babasaheb Sonone & another Vs. Jagannath Ramlalji Jugele, 1985 Mh.L.J. 565 [Para 3]
Reema Agrawal Vs. Anupam and others, 2004 ALL MR (Cri) 1124 (S.C.)=2004 (SC) A.I.R. 1418 [Para 4]
Sau Sandhya Manoj Wankhade Vs. Manoj Bhimrao Wankhade & Ors., 2011 ALL MR (Cri) 975 (S.C.)=2011 (3) SCC 650 [Para 4]

JUDGMENT

JUDGMENT :- Heard learned counsel for the Petitioners, learned counsel for Respondent No.1 and learned A.P.P. for Respondent No.2. Rule. Rule made returnable forthwith and heard finally with the consent of the parties.

2. In this matter the Respondent No.1 - wife had filed proceedings under the Protection of Women from Domestic Violence Act, 2005 (for short "Domestic Violence Act") bearing Criminal Misc. Application No.563 of 2011 before Judicial Magistrate, First Class, Jalgaon under Section 18, 20, 22 of the Domestic Violence Act. The Judgment came to be passed by the Magistrate partly in favour of Respondent No.1 wife. The Petitioner No. 1 who is husband of Respondent No.1 was directed that till the children attain age of majority, (who were stated to be of 7 and 1/2 years and 4 and 1/2 years of age at the time of filing Application) should be left with Respondent No.1 wife in summer holidays. Further order regarding maintenance was also passed. It appears that Criminal Appeal No.59 of 2013 has been filed by present Petitioners before the District Court, Jalgaon and is pending. Petitioner No.1 - husband filed application in Criminal Appeal seeking stay to the execution of orders passed by the Magistrate. The District Judge, considered the arguments and observed that mother being natural guardian of her children, she cannot be denied with such visiting rights and rejected the application for stay.

3. Learned counsel for Petitioners submitted that under Section 19 and 20 of the Domestic Violence Act specific words used are as to what orders could be passed while disposing of the application under sub-section (1) of Section 12 of the Domestic Violence Act, while in Section 21 of the Domestic Violence Act dealing with temporary custody orders of children the wordings are different and the same could be passed at any stage of hearing of the application. According to the counsel, it does not include passing of orders at the conclusion of hearing. Relying on the case of Wasudeorao Babasaheb Sonone and another vs. Jagannath Ramlalji Jugele, reported in 1985 Mh.L.J. Page 565, it was submitted that there is difference between closing of hearing and stage of Judgment. It was argued that Section 21 of the Domestic Violence Act did not contemplate custody orders at the end of the hearing. Thus, he submitted that trial Court Orders were required to be stayed.

4. Per contra, learned counsel for Respondent No.1-wife submitted that intention of Legislature needs to be seen to interpret the provisions and according to him definition of "domestic violence" includes depriving the wife access to children and so orders passed by the District Judge could not be faulted with. To claim that for interpreting different provisions intention of Legislature is to be seen, the counsel relied on the Judgments in the cases of (i) Reema Agrawal vs. Anupam and others, 2004 (SC) A.I.R. Page, 1418 : [2004 ALL MR (Cri) 1124 (S.C.)], and (ii) Sau Sandhya Manoj Wankhade vs. Manoj Bhimrao Wankhade & others, 2011(3) S.C.C. Page 650 : [2011 ALL MR (Cri) 975 (S.C.)].

5. I find that the question whether the Magistrate could have passed custody orders in Judgment, is something which is required to be decided by the District Judge before whom Appeal is pending. In any case, when statutory Appeal has been provided and the matter has been carried in Appeal, it is continuation of the proceedings and rights of the parties are yet not final. If the Sessions Judge has considered visiting rights and declined stay at interim stage, I do not wish to invoke my writ jurisdiction to interfere with the impugned order in the set of facts.

6. The only relief which appears to be appropriate at present stage, is to direct the Appellate Court to urgently decide the Criminal Appeal No.59 of 2013 expeditiously, and preferably in a month.

7. For the above reasons, Writ Petition is disposed of with the directions that the District Judge, Jalgaon seized with Criminal Appeal No.59 of 2013, to expeditiously hear the Appeal and try to dispose of the same within ONE MONTH. In case Respondent No.1 in the Appeal - Sou. Yogita w/o Sham Kumbhakarna, protracts the hearing of the Appeal, the District Judge, will be at liberty to pass suitable orders regarding stay of the impugned Order passed by the Magistrate.

8. Rule is partly made absolute in the above terms. Writ Petition stands disposed of.

Ordered accordingly.