Ex Parte Order For Custody Of Child Under DV Act Does Not Suffer From Illegality: Orissa HC [Read Judgment]

The Orissa High Court in Vinay Gupta vs. Saveri Nayak, has dealt with whether passing of an ex parte interim order regarding custody of their child in favour of the opposite party was permissible under Section 23(2) of the PWDV Act or not.

Petitioner Vinay Gupta filed the criminal revision petition challenging the order dated 02.08.2016, passed by learned Sessions Judge, Cuttack, dismissing his criminal appeal and, thereby, upholding the order in allowing the petition filed by his wife Saveri Nayak under Section 23(2) of the Protection of Women from Domestic Violence Act, 2005 (PWDV Act) for ex-parte order of interim custody of their minor girl child Sadhika Gupta, in favour of Saveri.

Vinay and Sadhika’s marriage was solemnised on 23rd February 2003, in Ludhiana and both of them are software professionals working in a multi-national company.

According to Sadhika’s submissions, , she became pregnant in January 2011, and gave birth to a girl  named Sadhika Gupta in August 2011.

Vinay did not spend any amount towards the delivery and upbringing of the girl child and everything was managed by her with a lot of hardship and agony. Saveri alleged that Vinay and his parents cursed the child as they were expecting a male child.

Due to physical and mental torture by Vinay, Saveri went into depression for which, in the 1st week of June 2016, she and her mother went to Bengaluru for medical checkup, where the child had also accompanied them.

After five days, Vinay came to the hotel where Saveri was staying and on 14th June 2016, when Saveri was in deep sleep, Vinay took away the child without intimating Saveri and left the hotel.

Saveri pleaded that her child needed her company, love and affection and prayed that her husband be directed not to cause any domestic violence to her and her daughter, and to hand over their daughter to her. The ex parte order for interim custody upon application filed by Saveri was passed by the magistrate and was questioned by Vinay in the high court.

Vinay’s counsel contended that passing of an ex parte interim order regarding custody of the child in favour of Saveri was not permissible under Section 23(2) of the PWDV Act and therefore, the learned magistrate exceeded his jurisdiction while passing the impugned order.

Vinay further argued that Saveri was suffering from obsessive compulsive disorder (OCD) and had suppressed all aspects of her psychiatric disorder in her application filed before the magistrate, which amounted to playing fraud upon the court and, therefore, the interim order should be set aside.

The bench comprising Justice S K Sahoo dealt with the important question of whether the Magistrate was competent to pass ex parte order of interim custody of girl child or not. The court held that:

“In view of the conjoint reading of Section 21 and section 23(2) of the P.W.D.V. Act, it is very clear that the Magistrate is empowered to pass an ex parte order in granting interim/temporary custody of any child or children to the aggrieved party even basing on the affidavit filed by such aggrieved party without notice to the respondent.” 

Considering the question of playing fraud on the court by suppression of facts, the Court held:

“On perusal of the application filed under Section 12 of the PWDV Act, I find that not only there are specific averments relating to domestic violence committed on the opposite party by the petitioner and his family members, but also it is mentioned that the opposite party went into a state of depression, leading to migraine and was often in a state of anxiety due to continuous ill treatment by the petitioner and his parents.”

The contention was rejected by the Court.

Coming to the question as to whether any illegality was committed by passing the impugned order, it was held by the court:

“Whether the criminal proceeding against the petitioner who is the father and natural guardian of the girl child for an offence of kidnapping is maintainable or not is a complete different matter, but it can be said that on the basis of the  averments made in the application supported by affidavit coupled with the domestic incident report which was called for by the Magistrate, it prima facie appears that the petitioner has committed an act of domestic violence on the opposite party and the manner in which the girl child of less than five years was allegedly separated from her mother, I am of the view that considering the welfare of the child, the learned magistrate has rightly passed the ex parte interim order of granting interim custody of the girl child in favour of the opposite party.”

Thus, after careful examination and discussion, the court directed Vinay Gupta that the girl child Sadhika Gupta be handed over to her mother Saveri Nayak immediately. But, he was given visitation rights during holidays and, accordingly, disposed of the application.

Read the Judgment here.

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