FAQs : Child Custody Orders in Domestic Violence Act
Children often become victims or a bone of contention between the warring couple. I don’t know what was in the mind of the drafters of the act or even the legislature when it passed this act and inserted a section which gave power to the magistrate to decide the interim custody of the minor.
Usually, in determining the custody of the children, a court would take into consideration many factors:-
- Welfare if the child, which undoubtedly is and should be paramount consideration.
- Wishes of the child
- Age and Sex of the child
- Whether shifting custody at any time would hamper his her normal routine.
In Batra Vs Batra, the Apex court had opined that the Domestic Violence Act was clumsily drafted. Suppose one goes by the definition of Section 21 of the DV Act. In that case, it talks about an order for interim custody of any child or children to the complainant, which can be passed “At any stage of Hearing”, thus giving the complainant ample opportunity to use this trump card when all else fails. Let’s read the section once:
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 a protection order or 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 the visit of such child or children by the respondent: Provided that if the Magistrate thinks 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.
Explanation
One has to understand that the issue involved in the case arising out of domestic violence has nothing to do with the question of guardianship and custody or even the welfare of the child. The sole point which can be raised against this is that the complainant can be deprived of the company of the minor children, and thus, she may be subjected to emotional violence. Because where the child is already in the custody of the complainant, the Magistrate can naturally allow the custody to remain with the complainant. Also, it is understandable that if a child has recently been removed from the custody of the complainant, the Magistrate may direct the custody to be restored to her. However, the addition of words like “At any stage of hearing” occurring in the act undoubtedly means any stage from taking cognizance of the matter till any date before the judgment is pronounced.
Query: What is the meaning of the word ‘child’?
Answer: The child may be of either sex but below the age of 18 years.
Query: If the child is of intelligible age, say 12 years or above, is it necessary for the Magistrate to consider the child’s opinion?
Answer: Yes. If such a child prefers to remain with the complainant or the Respondent, the Magistrate should accede to the child’s request. However, one has to understand that this act is one-sided. Temporary custody, if any, can be granted to the complainant only.
Query: What happens if the family court is already seized with the matter?
Answer: Initially, the magistrates routinely used the powers vested in this act to grant custody to the complainant even when the family court was seized with the matter, and there were orders from the family court about interim custody. But now, after many High Court rulings, magistrates usually don’t interfere with the family court’s orders. Thus, it is recommended that if the father has custody of the child, he should move for an injunction and permanent custody in family court.
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