Criminal Writ Petition No.750 of 2016

21st December, 2016

Petitioner Counsel: Shri SHYAM DEWANI
Respondent Counsel: Smt. R.S. SIRPURKAR, Shri N.R. PATIL, Addl.P.P.

Cases Cited:
Harsh Vs. Komal, 2015(6) LRC 328 (Rajasthan) [Para 20]
Payal Agrawal Vs. Kunal Agrawal, 2015 ALL MR (Cri) JOURNAL 23=2014 Cri. L.J. 4821 [Para 20]
Shabana Bano Vs. Imran Khan, 2010 ALL MR (Cri) 278 (S.C.)=(2010) 1 SCC 666 [Para 21,22]
Kiran Singh and Ors. Vs. Chaman Paswan and Ors., 2008 ALL SCR (O.C.C.) 81=AIR 1954 SC 340 [Para 21,22]
Dhavai Rajendrabhai Soni Vs. Dhavinl Dhavalbhai Soni and Ors., 2011 DGLS (Cri.) Soft 1123 [Para 23]
R.V. Srinath Prasad Vs. Nandamuri Jayakrishna and Ors., 2001(2) ALL MR 237 (S.C.)=(2001) 4 SCC 71 [Para 25]
Alkaben Rajubhai Patel and Anr. Vs. Sejalben w/o. Late Nainesh Natwarbhai Patel, Guardianship Petition No.26/2015, dt.23/9/2016 (Bom.) [Para 25]
Manjita Naik Tuenkar Vs. Soiroo @ Sarvesh C. Naik Tuenkar and Anr., 2013 ALL MR (Cri) 2456=2013 DGLS (Cri.) Soft 1185 [Para 26]
Captain Rattan Amol Singh Vs. Smt. Kamaljit Kaur w/o. Captain Rattan Amol Singh, AIR 1961 Punjab 51 [Para 26]
Jai Prakash Khadria and another Vs. Shyam Sunder Agarwalla and Anr., 2000(3) ALL MR 667 (S.C.) [Para 26]
Arwa Taha Saifuddin Vs. Taha Mufaddal Saifuddin, 2016(2) ALL MR 74=2016(2) Mh.L.J. 322 [Para 26]
Nil Ratan Kundu and Anr. Vs. Abhijit Kundu, 2008 ALL SCR 2016=(2008) 9 SCC 413 [Para 26]
Palmira w/o. Cruz Fernandes Vs. Cruz Fernandes, 1992(2) Mh.L.J. 1048 [Para 26]
Shalu Ojha Vs. Prashant Ojha, 2014 ALL MR (Cri) 4150 (S.C.)=(2015) 2 SCC 99 [Para 26,27]
Roxann Sharma Vs. Arun Sharma, 2015(2) ALL MR 978 (S.C.)=Civil Appeal Nos.1966-1967/2015, Dt.17/02/2015 [Para 26]

JUDGMENT

JUDGMENT :- This petition questioned the legality and correctness of the portion of the order dated 8.10.2015 granting interim custody to the respondent No.1 passed by the Judicial Magistrate, First Class, Amravati in domestic violence proceedings being CC (DV) No.98/2015 and also the order dated 31.8.2016 confirming the order of interim custody, passed on 31st August, 2016 in Criminal Appeal No.175/2010 by Additional Sessions Judge-3, Amravati.

2. The petitioner No.1 is the husband of respondent No.1 and petitioner Nos.2,3 and 4 are respectively the motherinlaw,father-in-law and sisterinlaw of respondent No.1. The marriage of petitioner No.1 with respondent No.1 was solemnized at Amravati on 18.2.2014 as per Hindu Rites and Customs and also under the Special Marriage Act, 1955. After the marriage, the respondent No.1 started cohabiting with the petitioner No.1, who was in joint residence with petitioner Nos.2 to 4 at Mumbai. It appears that soon after the marriage, a discord developed between petitioner No.1 and respondent No.1, for which, according to the respondent No.1, even the petitioner Nos.2 to 4 were responsible. The respondent No.1 alleged that she was tortured mentally by the petitioners when she was residing in their house at Mumbai. The respondent No.1, immediately after the marriage, carried pregnancy and on 25.10.2014 gave birth to a son Ayaan, prematurely. It was in her 7th moth of pregnancy. The respondent No.1 alleged that the petitioners, on the excuse of the baby being prematurely born, did not allow her to handle and take care of the baby. She alleged that after the baby was brought back home in November 2014, the respondent No.1 was not permitted to nurture and raise her child. She further alleged that she was subjected by petitioners to mental harassment by hurling abuses and critical comments. She further alleged that on 17.2.2015, when the child was to be taken to the hospital for vaccination, the petitioners prevented respondent No.1 from touching and handling her child charging that she was incapable of rearing a child. This all created a disgusting situation for respondent No.1 and as submitted by her, she could no longer bear the mental torture and, therefore, she straightaway headed parental home at Amravati from the hospital. The respondent No.1 further maintained that after her mental condition was stabilized, she approached the Court of Judicial Magistrate, First Class at Amravati by filing application under the Protection of Women from Domestic Violence Act, 2005 (in short, DV Act") seeking various reliefs from that Court. It was registered as CC (DV) case No.98/2015. In these proceedings, the respondent No.1 also filed an application (Exh.-5) for seeking interim reliefs including the relief of grant of interim custody under Section 21 of the DV Act.

3. The allegations and the claims made against the petitioners were vehemently denied by them. They alleged that the respondent No.1 was inhuman in treating her baby and utterly irresponsible in her motherly duties. They contended that the respondent No.1 was never mentally prepared for a pregnancy and was unable to breastfeed her child due to lack of lactation. They also submitted that the respondent No.1 did not take adequate care of the child as advised by the doctor. They claimed that the respondent No.1 never wanted to marry with petitioner No.1. They also submitted that it was in the interest and welfare of the baby Ayaan,, who required love and affection as well as proper treatment from expert doctors available in Mumbai, that his custody was not handed over even by an interim order to respondent No.1.

4. On merits of the case, the learned Judicial Magistrate, First Class, Amravati found that it was in the interest and welfare of the child that the custody was handed over to respondent No.1 and accordingly, by her order passed on 8th October, 2015, granted the same to the respondent No.1. This order was challenged in appeal under Section 29 of the DV Act filed by the petitioners which was registered as Criminal Appeal No.175/2010. After hearing both sides, learned Additional Sessions Judge3, Amravati by her judgment and order dated 31st August, 2016 dismissed the appeal thereby confirming the order of interim custody of the child given to respondent No.1 by Judicial Magistrate, First Class, Amravati. Not being satisfied with both these orders, the petitioners are before this Court in the present criminal writ petition.

5. I have heard Shri Shyam Dewani, learned counsel for the petitioners, Smt. R.S. Sirpurkar, learned counsel for the respondent No.1 and Shri N.R. Patil, learned Additional Public Prosecutor for the respondent No.2.

6. Shri Shyam Dewani, learned counsel for the petitioners has taken objection to the jurisdiction of the Court to pass an order of interim custody under Section 21 of the DV Act on the ground that the Family Court is available at Amravati, dispute between the parties is also pending before the Family Court, Amravati and the Family Court is already seized of the matrimonial dispute between petitioner No.1 and respondent No.1, all of which fulfill the requirements of the provisions of Sections 7(1)(g), 7(2)(8) and (20) of the Family Courts Act 1984 (in short, "Act, 1984") ousting the jurisdiction of the Judicial Magistrate to grant interim custody under Section 21 of the DV Act. He also submits that Section 21, DV Act deals with only interim or temporary custody and unlike the Family Courts Act there is no provision made in the DV Act conferring power upon the Magistrate Court to decide the question of permanent custody and, therefore, when the Family Court is already seized of the matter, the Court of Judicial Magistrate, First Class ought not to have passed any order under Section 21 of the DV Act. He also submits that Section 36 of the DV Act clarifies that the provisions of DV Act are in addition to and not in derogation of the provisions of any other law for the time being in force. Thus, according to him, a combined reading of these provisions of law would lead to a conclusion that when forum of Family Court is available for the parties to obtain appropriate relief regarding custody, the remedy under Section 21 of the DV Act is not available to the parties and, therefore, the impugned orders are a nullity.

7. On merits of the case, learned counsel for the petitioners submits that both the Courts below have committed grave error of facts and law by not considering the relevant material available on record and ignoring in the process the welfare of the infant Ayaan in this case.

8. Smt. R.S. Sirpurkar, learned counsel for the respondent No.1 submits that Section 26 of the DV Act makes it clear that the reliefs under Sections 18,19,20,21 and 22 may also be sought in any legal proceedings before a Civil Court or Family Court or a Criminal Court and this would only show that the reliefs under the DV Act serve as additional and not alternate measures and, therefore, there is no question of them being barred or rendered unavailable by a remedy available under another Act like the Act, 1984. She also submits that this is further affirmed by the provision of Section 36 of the DV Act laying down that all the provisions of DV Act are in addition to and not in derogation of the provisions of any other law for the time being in force. Therefore, she submits that the Family Court, Amravati will have no exclusive jurisdiction to decide the kind of application which has been filed by the respondent No.1 in the instant case, seeking interim custody of the child under Section 21 of the DV Act.

9. On merits of the case, learned counsel for the respondent No.1 submits that there have been concurrent orders granting interim custody to the respondent No.1 and there being no perversity or arbitrariness in these orders, there is no need to make any interference with the same in exercise of writ jurisdiction of this Court.

10. Since objection to the jurisdiction of the Court of Magistrate to decide an application filed under Section 21 of the DV Act in view of the provisions of the Act, 1984 and availability of a Family court at Amravati has been taken, it would be necessary for this Court to consider and decide the same first. The objection revolves around interpretation of Sections 7, 8 and 20 of the Act 1984 and also Sections 21, 26 and 36 of the DV Act. This would also necessitate comprehending the legal meaning of certain terms and expressions such as District Court and Magistrate. It would be, therefore, useful for us to reproduce here relevant provisions of law, the expanse and mandate of which is required to be considered here. They are reproduced as below :

Family Courts Act, 1984 :

Section 2 : Definitions. - In this Act, unless the context otherwise requires,

(e) all other words and expressions used but not defined in this Act and defined in the Code of Civil Procedure, 1908 (5 of 1908) shall have the meanings respectively assigned to them in that Code.

Section 7 : Jurisdiction. (1) Subject to the other provisions of this Act, a Family Court shall

(a) have and exercise all the jurisdiction exercisable by any district Court or any subordinate civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district Court or, as the case may be, such subordinate civil Court for the area to which the jurisdiction of the Family Court extends.

Explanation. The suits and proceedings referred to in this subsection are suits and proceedings of the following nature, namely:

(a) a suit or proceeding between the parties to a marriage for decree of nullity marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;

(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise;

(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and

(b) such other jurisdiction as may be conferred on it by any other enactment.

Section 8 : Exclusion of jurisdiction and pending proceedings. Where a Family Court has been established for any area,

(a) no district Court or any subordinate civil Court referred to in subsection(1) of Sec. 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that subsection;

(b) no Magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974);

(c) every suit or proceeding of the nature referred to in the Explanation to subsection (1) of section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973(2 of 1974)

(i) which is pending immediately before the establishment of such Family Court before any district Court or subordinate Court referred to in that subsection or, as the case may be, before any Magistrate under the said Code; and

(ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established;

Section 20 : Act to have overriding effect. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

Code of Civil Procedure :

Section 2. Definitions. In this Act, unless there is anything repugnant in the subject or context,

(4) "district" means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a "District Court"), and includes the local limits of the ordinary original civil jurisdiction of a High Court;

Section 3. Subordinate of Courts.For the purposes of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court.

Protection of Women from Domestic Violence Act, 2005 :

Section 2 : Definitions.- In this Act, unless context otherwise requires,

(i) "Magistrate" means the Judicial Magistrate of the first class, or as the case may be, the Metropolitan Magistrate, exercising jurisdiction under the Code of Criminal Procedure, 1973(2 of 1974) in the area where the aggrieved person resides temporarily or otherwise or the respondent resides or the domestic violence is alleged to have taken place;

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.

Section 26. Relief in other suits and legal proceedings.- (1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.

(2) Any relief referred to in subsection(1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.

(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.

Section 36. Act not in derogation of any other law.- The provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force.

11. Upon perusal of Section 7 of the Act, 1984, it would be clear that this provision is in two parts, first, under subSection(1), covers the civil jurisdiction and the, second, under subSection (2), relates to criminal jurisdiction. The civil jurisdiction that a Family Court can exercise under Section 7(1) is the one exercisable by any district Court or any subordinate civil Court and it is relating to those matters which are enumerated in the Explanation to it. Clause (g) of the Explanation refers to custody of minor, with which we are concerned in this petition. But, this jurisdiction of a Family court to deal with custody matter, it has to be borne in mind, is basically of a district court or any subordinate civil Court, as is evident from the language employed in clauses (a) and (b) of subSection (1) of Section 7 of the Act, 1984. A district court or for that matter a subordinate civil Court, is different and distinct from the Court of a Magistrate in terms of their nature of jurisdiction, powers and source of their existence.

12. The expressions "district court" and "subordinate civil court" have not been defined in the Act 1984, but Section 2(e) of the same Act would direct us to the Code of Civil Procedure (in short, "CPC") to understand meaning of the same. Even in the CPC, the expressions "district court" and the "subordinate civil court" have not been specifically defined, but their meaning could be understood by referring to Section 2(4) and Section 3 of the CPC. These Sections only emphasize that a district court is nothing but a principal civil court of original jurisdiction and every district court is subordinate to the High Court and every civil court of a grade inferior to that of a district court is subordinate to the High Court and the district court. A district court or a subordinate civil court exercises jurisdiction in respect of only those matters which are of civil nature as contemplated by Section 9 CPC and not those which are of criminal nature as contemplated by provisions contained in Chapter II of the Cr.P.C. Source of existence of district court or subordinate civil court is the CPC and relevant State law, in Maharashtra, it is Maharashtra Civil Courts Act as modified upto 30.1.2016, and that of a Magistrate's Court is the Code of Criminal Procedure (for short, "Cr.P.C.") Thus, jurisdiction over a custody matter referred to in Section 7(1)(g) of the Act, 1984 is the one exercisable by a civil court, which is different and distinguishable from a criminal court. It would then follow that if any criminal court is invested with a parallel power to grant interim custody, it would not be covered by the mandate of Section 7(1)(g) of the Act, 1984.

13. Under Section 21 of the DV Act, power has been conferred upon the Magistrate to grant temporary custody of any child to the aggrieved person when he is seized of the application filed for grant of protection order or any other relief under the DV Act. Under Section 2(i) of the DV Act, Magistrate means the Judicial Magistrate of the First Class or as the case may be, Metropolitan Magistrate, exercising jurisdiction under the Code of Criminal Procedure, 1973. This jurisdiction of the Magistrate under Section 21 of the DV Act, as could be seen from the definition of the term "Magistrate", is specific and exclusive to the Judicial Magistrate, First Class or as the case may be, the Metropolitan Magistrate exercising jurisdiction under the Cr.P.C. and, therefore, would not be covered by the provisions of Section 7(1) of the Act, 1984 in particular, clause (g) thereof. It would also not be covered by the second part under subsection(2) of Section 7 of the Act, 1984 as only a small chunk of criminal jurisdiction of the Magistrate under the Cr.P.C. has been earmarked and made over to the Family Court thereunder. This portion of jurisdiction is confined to only the maintenance proceedings initiated under Chapter IX of the Cr.P.C. before the Magistrate of the First Class and nothing more. It is thus clear that jurisdiction of the Magistrate to adjudicate upon the question of grant of interim custody is parallel to and independent of the jurisdiction over custody matters under Section 7 of the Act, 1984

14. Above interpretation, in my view, receives a seal of approval in a way, when one considers the nonobstante clause contained in Section 21 of the DV Act, the purpose that it seeks to achieve and the nature of power it confers upon the Magistrate. The nonobstante clause unbounds the Magistrate from similar powers of other courts in other enactments and regardless of those powers, he can go about the issue of interim custody on his own. The purpose that this Section seeks to achieve is protection of the aggrieved person, for the time being from domestic violence, which is discernible from the condition prescribed for exercise of the interim custody power under Section 21 of the DV Act. Pendency or filing of an application for protection order or any other relief under the DV Act is must and in such proceeding the issue of interim custody can be raised. The reason being that it is also an issue of domestic violence as it harms the mental health of an aggrieved person who maintains a perception and is capable of demonstrating at least in a prima facie manner, that welfare of the child is being undermined. The nature of the power is temporary and coterminous with the main application filed for protection or any other relief. It begins with filing of such main application and comes to an end with disposal of the main application or may merge with the final decision rendered in the proceeding. Such being the nature and purpose of power of the Magistrate under Section 21 of the DV Act, it would have to be said that it is separate and independent from and not covered by either of the parts of Section 7 of the Act, 1984. If such interpretation is not given to Section 21, DV Act power, the Section itself can be rendered otiose in a given case and the Magistrate will be divested of his power to adjudicate upon that species of domestic violence issue which arises from jeopardising the welfare of the child. Such is, however, not the intention of the legislature, rather, the interpretation made earlier is in consonance with the intention of the legislature and object of the DV Act to protect women from domestic violence.

15. The interpretation made regarding Section 21, DV Act power would receive further confirmation from the fact that an application filed under Section 21 of the DV Act does not come under the effulgence of Section 8(b) of the Act, 1984 which bars specifically the jurisdiction of the Magistrate, in relation to an area where a Family Court has been established, only under Chapter IX of the Cr.P.C., and not under any other law for the time being in force.

16. Section 8 of the Act 1984 makes jurisdiction of the Family Court under Section 7 subSections(1) and (2) as exclusive. But, this exclusivity, as it emerges from the discussion made so far, would relate to only those jurisdictions which are exercisable by a district Court or any subordinate civil Court in respect of matters referred to in the Explanation or by a criminal Court like the Court of Magistrate of the First Class in respect of matters under chapter IX of the Cr.P.C. and nothing more or nothing less. It is obvious that the exclusivity of the jurisdiction under Section 8 of the Act, 1984 is extendable to only those matters specifically referred to in subSection(1) and subsection(2) of Section 7 of the Act 1984 and not to the jurisdiction of the Magistrate under Section 21 of the DV Act. Thus, respectfully disagreeing with the learned counsel for the petitioner, I find that Sections 7 and 8 of the Act, 1984 could not be interpreted and understood to mean that they confer sole and exclusive jurisdiction upon the Family Court in respect of all custody matters and, thus oust the jurisdiction of a Magistrate under Section 21 of the DV Act. I would add here, there are certain custody matters, like the one under Section 21 of the DV Act, which are beyond the pale of dominance of Sections 7 and 8 of the Act, 1984.

17. No doubt, Section 20 of the Act 1984 accords provisions of the said Act primacy over any other law for the time being in force due to the overriding effect given to it. But, this overriding effect is only to the extent of inconsistency of the provisions contained in any other law in force with the provisions of the Act 1984. We have seen that jurisdictions of the Family Courts under both parts of Section 7 do not cover the jurisdiction exercisable by Judicial Magistrate, First Class in respect of grant of interim custody under Section 21 of the DV Act and, therefore, there is no question of jurisdiction of the Magistrate under Section 21 of the DV Act being inconsistent with the provisions conferring jurisdiction upon the Family Court and as such, the Act 1984 will not have any overriding effect upon the DV Act.

18. On the contrary, I must point out, the reliefs available under Sections 18,19,20,21 and 22 of the DV Act are in the nature of a help, which is extended to an aggrieved person in addition to the assistance that the aggrieved person may have under any other law for the time being in force whether civil or criminal. This is clear from the provision of Section 26 of the DV Act which lays down that any reliefs available under Sections 18,19,20,21 and 22 may also be sought in any legal proceeding before the civil Court, family Court or a criminal Court. In other words, the reliefs available under the DV Act are supplementary in nature and do not exclude similar reliefs available under other laws. This is further reaffirmed by the provision of Section 36 of the DV Act prescribing that the provisions of this Act shall be in addition to and not in derogation of provisions of any other law for the time being in force.

19. The above discussion would lead me to conclude that application filed under Section 21 of the DV Act seeking interim custody is maintainable before a Magistrate exercising jurisdiction in relation to an area where Family Court is established and the Magistrate has jurisdiction to decide such an application in accordance with law. Irresistible conclusion further would be that the application filed under Section 21 of the DV Act before the Court of Judicial Magistrate, First Class, Amravati in the instant case is tenable and the impugned orders cannot be assailed on the ground of want of jurisdiction, they being a nullity.

20. Shri Shyam Dewani, learned counsel for the petitioners has placed his reliance upon the case of Harsh vs. Komal, reported in 2015(6) LRC 328 (Rajasthan), decided by learned Single Judge of Rajasthan High Court, wherein the learned Single Judge has taken a view that under Section 21 of the DV Act, no independent remedy has been provided to seek custody of the minor child. Learned Single Judge relying upon another decision of the learned Single Judge of the Rajasthan High Court in the case Payal Agrawal vs. Kunal Agrawal, reported in 2014 Cri.L.J. 4821 : [2015 ALL MR (Cri) JOURNAL 23], held that Section 21 of the DV Act does not provide any independent remedy to seek custody of the minor child and, therefore, in a case where the Family Court has been established for an area in respect of which the Court of Judicial Magistrate, First Class also exercises jurisdiction, the latter Courts jurisdiction under Section 21 of the DV Act would be ousted by the Family Court. It appears that in these decisions, the nature of jurisdiction conferred by Section 7 of the Act 1984 upon the Family Court was not brought to the notice of the learned Single Judges of the High Court of Rajasthan and emphasis was placed only upon Section 20 of the Act 1984. It also appears that the effect of Section 36 of the DV Act over the jurisdiction of the Family Court under Section 7 of the Act 1984 was not properly brought to the notice of the High Court. Therefore, with due respect, I would say it is not possible to agree with the view taken in these decisions.

21. Learned counsel for the petitioner has also invited my attention to the observations of the Hon'ble Apex court in the case of Shabana Bano vs. Imran Khan, reported in (2010) 1 SCC 666 : [2010 ALL MR (Cri) 278 (S.C.)], wherein in paragraph 13 the Hon'ble Apex Court has observed that Act 1984, interalia seeks to exclusively provide within jurisdiction of the Family Courts the matters relating to maintenance, including proceedings under Chapter IX Cr.PC and that Section 20 of the Act, 1984 lays down that the Act shall have overriding effect on other enactments. Learned counsel for the petitioners has further placed reliance upon the case of Kiran Singh and others vs. Chaman Paswan and others, reported in AIR 1954 SC 340 : [2008 ALL SCR (O.C.C.) 81], wherein the Hon'ble Apex Court has laid down that it is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in colateral proceedings.

22. There can be no dispute about the principles of law which emerge from the decisions of Shabana Bano [2010 ALL MR (Cri) 278 (S.C.)] (supra) and Kiran Singh [2008 ALL SCR (O.C.C.) 81] (supra). But, Shabana Bano's case would give no assistance to learned counsel for the petitioners as it does not deal with Section 21 of the DV Act and in the present case, overriding effect of Section 20 of the Act, 1984 has not been seen to be encasing jurisdiction of the Magistrate under Section 21 of the DV Act. So far as the ratio of Kiran Singh is concerned, I find, in the instant case no occasion has arisen for implementing it for the reason that the order of interim custody passed by the learned Magistrate, and the further order of the learned Additional Sessions Judge confirming it, both, have been found by me to be within jurisdiction, for the reasons stated in the earlier paragraphs.

23. Learned counsel for the respondent No.1 has placed her reliance upon the case of Dhavai Rajendrabhai Soni vs. Dhavinl Dhavalbhai Soni and others, reported in 2011 DGLS (Cri.) Soft 1123, in support of her argument that a Magistrate does have the jurisdiction to grant relief of interim custody under Section 21 of the DV Act. I do not think that in a controversy like the present one wherein the issue of ouster of jurisdiction of the Magistrate under Section 21 of the DV Act by virtue of Sections 7,8 and 20 of the Act 1984 is involved, said decision would render any useful assistance as similar issue was not involved in that case.

24. On the point of need for retention of the custody of the child by the petitioners, it has been argued that the welfare of the child being of the paramount consideration, it would be in the best interest of the child that the child continues to remain under the care and custody of the petitioners so that his physical, mental psychological and medical needs are adequately catered to. By taking me through the correspondence between the parties, copies of which are forming part of the paper book, learned counsel for the petitioners would submit that the respondent No.1 has been indifferent and even callous to her son Ayaan, a premature baby. He points out that respondent No.1 had disappeared from the hospital on 17th February, 2015, leaving everybody including Ayaan in lurch and thereafter did not inquire even once about the welfare of Ayaan till around May 2015 when the application under Section 12 of the DV Act was filed by respondent No.1. It is also submitted that during interregnum, the respondent No.1 instead of being concerned about the health of her prematurely born baby, was anxious to get back her personal belongings, as is evident from emails that she sent to petitioner No.1 and this would only demonstrate that the respondent No.1 has no love and affection for Ayaan and it is further submitted that the respondent No.1, as the medical papers would show did not develop lactation, could not breastfeed the child and this required expert guidance for providing proper nourishment to the child which is being currently provided by the petitioners at Mumbai. Learned counsel for the petitioners also took me through the medical papers forming part of paper book and submitted that the child Ayaan is under special medical treatment at Mumbai and there would be a break in this special treatment if any change in custody occurs. He submits that this treatment, it is feared by the petitioners, may not be available at Amravati. He also submits that apart from petitioner No.1, petitioner Nos.2,3 and 4 are completely attached to the child Ayaan and he is growing well under their caring, attentive and affectionate shelter. He further submits that all this would not be possible at Amravati and, therefore, the petitioners deserve to be granted custody of the child.

25. In support of his argument regarding welfare being of paramount consideration, learned counsel for the petitioners has placed reliance upon the cases (a) R.V. Srinath Prasad vs. Nandamuri Jayakrishna and others, reported in (2001) 4 SCC 71 : [2001(2) ALL MR 237 (S.C.)] and (b) Alkaben Rajubhai Patel and another vs. Sejalben w/o. Late Nainesh Natwarbhai Patel, Guardianship Petition No.26/2015, decided by learned Single Judge of the Bombay High Court dated 23 rd September, 2016.

26. Smt. R.S. Sirpurkar, learned counsel for respondent No.1 has submitted that all these aspects of the case have been properly considered by the Courts below and the findings recorded by them being based upon the record of the case and law applicable to the facts of this case, could not be said to be against settled principles of law, perverse or arbitrary and as such would not call for any interference by this Court in exercise of its writ jurisdiction. She also submits that in custody matters, not the right of the parents, but the welfare of the child, is of utmost importance which must be borne in mind while adjudicating upon the issue of proper custody of the child. In support she has placed reliance upon these cases : (a) Manjita Naik Tuenkar vs. Soiroo @ Sarvesh C. Naik Tuenkar and another, reported in 2013 DGLS (Cri.) Soft 1185 : [2013 ALL MR (Cri) 2456], (b) Captain Rattan Amol Singh vs. Smt. Kamaljit Kaur w/o. Captain Rattan Amol Singh, reported in AIR 1961 PUNJAB 51, (c) Jai Prakash Khadria and another vs. Shyam Sunder Agarwalla and another, reported in 2000(3) ALL MR 667 (S.C.), (d) Arwa Taha Saifuddin vs. Taha Mufaddal Saifuddin, reported in 2016(2) Mh.L.J. 322 : [2016(2) ALL MR 74], (e) Nil Ratan Kundu and another vs. Abhijit Kundu, reported in (2008) 9 SCC 413 : [2008 ALL SCR 2016] and (f) Palmira w/o. Cruz Fernandes vs. Cruz Fernandes, reported in 1992(2) Mh.L.J. 1048. Learned counsel has also placed reliance on Civil Appeal No.1966/2015 Roxann Sharma vs. Arun Sharma, with Civil Appeal No.1967/2015, decided by Hon'ble Supreme Court on 17th February, 2015 which is on welfare of child being important and the case of Shalu Ojha vs. Prashant Ojha, reported in (2015) 2 SCC 99 : [2014 ALL MR (Cri) 4150 (S.C.)].

27. In the case of Shalu Ojha [2014 ALL MR (Cri) 4150 (S.C.)] (supra) I must mention at the outset that the Hon'ble Apex Court, instead of going into the issue as to whether or not the Appellate Court can grant interim order staying execution of the maintenance order passed by the Magistrate, directed the Sessions Court to dispose of the appeal on merits. Such being the direction, this case would render no assistance to us in the present case.

28. Now, reverting to the rival submissions, I find that learned counsel for the respondent No.1 is right when she submits that in writ jurisdiction the scope of interference does not go beyond examining the impugned order from the view point of it being perverse, arbitrary or going against well settled principles of law or statutory provisions or exfacie illogical. When the impugned orders are examined from such a perspective, I find that they do not contain any such illegality or perversity as would warrant any interference with them. The Courts below have considered all the points raised before them, which were similar to those raised here and decided them by taking a view, which is neither arbitrary nor illegal nor illogical nor of the nature as would cause miscarriage of justice.

29. It is true that respondent No.1 suddenly disappeared from the hospital on 7.2.2015 when her infant son Ayaan was being examined by the doctor. The correspondence available on record at this stage, however, shows that the respondent No.1 was then experiencing a traumatic and distressed phase of her life due to what was happening between her on the one hand and the petitioners on the other, the details of which could be seen in the communications between the parties trading allegations against each other. These e-mails and letters constitute a word against word and it is difficult at this stage to give a finding as to who is right and who is not, but the fact remains that interse relations between the rival parties were stretched to the level of severe bitterness pervading their minds over a prolonged period. This may have left respondent No.1 frustrated with her own condition and when, she also states so, she regained her mental equilibrium that she started making entreaties with the petitioners to give her back her infant son to shower her love and affection on him and nurture him, at a time when the baby required it the most.

30. It is also true that there is one letter addressed as "To whomsoever it may concern" signed by respondent No.1 taking all the blame upon herself for all that mess that her marriage with the petitioner No.1 has been pushed into. However, the way it has been written only indicates that the words exhibit more of a tone of sarcasm rather than an intention of confession and correction.

31. About deficiency of respondent No.1 in breastfeeding her infant son, I find that there is no disputing this fact. But, as seen from the medial papers, there appears to be a reason for it. It was probably the premature birth of Ayaan, and for this, surely respondent No.1 cannot be lambasted. Even otherwise, if lactation is not established, the mother cannot be blamed as that is something which is part of her body metabolism and genetics over which she would never have any control. One thing is certain, there is no nexus between lack of lactation and motherly attachment to one's own baby. In the present case, by seeking custody of the child, I think the respondent No.1 has shown that she is concerned about the welfare of her child and desirous of giving him all that care, love and affection which only a mother can give. If this is so, any denial of interim custody to her would result in harming her mental health and thus cause domestic violence to her. But, of course this would not be the primary consideration for deciding custody of the child. Welfare, of the child, as held in several cases, including those relied upon by both sides, is of the paramount consideration. In the fact situation of this case, I find that the baby is so small that his being with mother, who is yearning for her reunion with her child, would only help him grow and develop, physically, psychologically and mentally well, at least for the present. The facts and circumstances of this case discussed earlier would also show that the respondent No.1, for the time being, has established herself to be a fit person to have the custody of the baby. Her conduct for about two and half months during the period from 17.2.2015 till about early May 2015 has also been found to be not showing indifference or nonattachment towards Ayaan. All this would show that welfare of Ayaan, for the present, will be well achieved, if his interim custody is given to respondent No.1.

32. About the medical treatment that is being given to Ayaan at Mumbai, I must say there is nothing available on record showing that equally competent and professional medical treatment is not available at Amravati. Learned counsel for the petitioners has filed on record a Pursis along with documents including a medical report dated 23.8.2016 which shows that Ayaan has been diagnosed to be suffering from mild Autism and he is undergoing treatment for Speech and Behavioral Therapy, Occupational Therapy, Hearing and Vision Assessment, Thyroid Profile Assessment and Autism Assessment. As stated earlier, if at all this is true, similar treatment could also be given to the child at Amravati and if parties feel that this is not possible it would constitute a change of circumstances justifying modification of the interim order of custody by invoking power under Section 25(2) of the DV Act. That apart, from the record it is seen that these documents were not available for consideration before the Courts below and therefore, it would be unjust to question the legality and correctness of the impugned orders by considering these documents for the first time in exercise of writ jurisdiction. For this reason also, the impugned orders cannot be faulted with. All said and done, I may say that a custody order by it's very nature being temporary is amenable to change or modification subsequently if it is necessitated by the change of circumstances.

33. In the circumstances, I do not see any reason to reverse the impugned orders and the writ petition deserves to be dismissed.

34. Writ Petition stands dismissed.

35. Custody of the child, Ayaan, shall be handed over to the respondent No.1 within three weeks from the date of the order.

36. Rule is discharged.

Petition dismissed.