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Not Allowing Husband to Seek Child’s Custody Under Domestic Violence Act Leads to Multiplicity of Proceedings: Supreme Court Tells AG

NEW DELHI: The Supreme Court bean hearing arguments on Wednesday on the legal question of whether an adult male member, other than an aggrieved woman, has the right to file an application for visitation rights with respect to a child under Section 21 of the Protection of Women from Domestic Violence Act.

A bench comprised of the Chief Justice of India, Justice AS Bopanna, and Justice Hima Kohli expressed concern about the multiplicity of proceedings that will result in matrimonial disputes if a man cannot seek visitation rights in a proceeding initiated by a woman under the Domestic Violence Act.

The bench stated orally that it is time for the legislature to investigate this matter and determine whether all of the issues can be brought ‘under one umbrella under one court.’

The observations were made in response to Attorney Gerneral of India KK Venugopal’s submissions, whose assistance the Court had sought in 2018 in relation to the current question of law.

Referring to Section 21 of the Domestic Violence Act, which allows an aggrieved person to apply for temporary custody of the child, the Attorney General stated that the problem is that an aggrieved person is only a woman. According to him, a man cannot be an aggrieved person under the DV Act.

“Section 21 DV Act. 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.”

The bench asked the AG if a husband is entitled to visitation rights in a pending family dispute. The bench went on to say that if a proceeding under the Domestic Violence Act has been initiated by the woman, the man cannot go to any other court.

In response to the AG’s contention that the man could proceed under a separate act, the CJI stated, ‘You are encouraging another litigation.’

The AG argued that the application for visitation rights under section 21 is only for temporary custody any that the aggrieved woman can file it.

The CJI however said, “You must understand, already there are enough acts, Maintenance Ac, the Guardians and Wards Act, the Domestic Violence Act, 4 – 5 acts are there. They’ve to move from Court to Court. Now we are adding another Court. It’s time for legislature to look into this.”

The AG referred to the doctrine of Parens Patriae and stated that a number of decision have stated that when it comes to child custody, the paramount consideration is the child’s welfare.

“The question is, can a husband come directly to HC and invoke parens patriae jurisdiction on basis that otherwise he will have to go under various other acts and the High Court has inherent jurisdiction so it could then decide upon interim custody until wife or husband goes to court and applies for permanent custody. Parens patriae would be the jurisdiction if he doesn’t move under the Guardians and Wards Act, Special Marriage Act or the Hindu Marriage Act, which have separate sections for custody,” AG said.

“Sorry to say, the question is compliance things. We want simple solution to problems. Here is a simple case where a husband wants visitation rights, why doesn’t legislature look into this angle?” CJI said.

“We are taking about general consequences of these kinds of cases. Husband has no right to approach under domestic violence act for visitation courts, he has to move a separate OP before civil court. Matter is going on before the Domestic Violence Court and wife has to appear. Why don’t you bring all the issues under one umbrella under one court?” CJI said.

In terms of the relationship, AG argues that it is comprised of holistic rights in both parties. He went on to say that if a wife approached the Court for any reason, the man has the right to request visits if he has custody of the children. However, if she is self – sufficient and does not want alimony, residence, or other benefits, the man has no recourse unless he violates other laws.

“Otherwise, I will suggest parens patriae (moving before concerned court invoking parent patriae jurisdiction)”, AG said.

The AG attempted to submit a note in this regard, along with some judgments. The bench then requested that the AG submit a note of his submissions in order to assist the court. The matter will be revisited in two weeks.

In the current case, the petitioner’s wife filed a case under the Domestic Violence Act against him. On the husband’s application, the Trial Court granted him visitation rights to his children under Section 21 of the protection of women from domestic violence act. However, the sessions court overturned that order, and the High Court upheld the sessions Court’s decision.

Source: soolegal.com