Not Allowing Husband To Seek Child's Custody Under Domestic Violence Act Leads To Multiplicity Of Proceedings: Supreme Court Tells AG

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

A Bench comprising the Chief Justice of India NV Ramana, Justice AS Bopanna and Justice Hima Kohli expressed concern regarding the multiplicity of proceedings that will ensue in matrimonial disputes if a man cannot seek visitation rights in a proceeding initiated by a woman under the Domestic Violence Act.

The Bench orally observed that it is time for the Legislature to look into this issue, and see if all the issues can be brought 'under one umbrella under one Court'.

The Bench made the observations in response to the Attorney General for India KK Venugopal's submissions, whose assistance the Court had sought in 2018 with regard to the present question of law.

Referring to Section 21 of the Domestic Violence Act, which allows an aggrieved person to make an application for grant temporary custody of the child, Attorney General submitted that, the problem is that as far as an aggrieved person is concerned, it is only a woman. A man cannot be an aggrieved person under the DV Act, he said.

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, in an ongoing family dispute, a husband is entitled to have visitation rights. The Bench added that the issue is if there is a proceeding going on, initiated by the woman under the Domestic Violence Act, the man cannot go to any other court.

In response to AG's submission that the man could approach under a separate act, the CJI said, "You are encouraging another litigation".

AG submitted that the application for visitation rights under section 21 is for a temporary custody only and can be filed by the aggrieved woman.

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 submitted that there are a series of judgements that have said that in regard to child's 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 complicating 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 talking 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.

AG submitted that so far as the relationship is concerned, it consists of holistic rights in both parties. He added that if a wife approaches the Court for any right whatsoever, the man gets a right to ask for visiting if he is in the custody of children. However, if she is self-reliant and doesn't want alimony, residence etc.,  there's nothing the man can do unless he goes under other acts.

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

The AG sought to submit a note with regard to this along with some judgements.

The Bench then asked the AG to submit a note of his submissions to assist the court. The matter will be taken up after two weeks.

In the present case, a case under the Domestic Violence Act was filed against the petitioner by his wife. On an application by the husband, the Trial Court had granted him visitation rights to visit his children under Section 21 of the Protection of Women from Domestic Violence Act. However, the Sessions court had set aside that order, and the High Court had upheld the Session Court's order.Chall

Case Title: Hemant Baburav Basante vs The State of Gujarat & Anr |SLP (Crl) 5806/2018