Pendency Of Application For Child’s Custody Under DV Act Cannot Hamper Proceedings Under Guardians And Wards Act: Uttarakhand HC [Read JT]

The Uttarakhand High Court, on Thursday, ruled that the pendency of an application for child’s custody under Section 23 of the Domestic Violence Act cannot create an embargo for consideration of an application under Section 25 of the Guardians and Wards Act.

The Bench comprising Justice Rajiv Sharma and Justice Sharad Kumar Sharma explained, “The intention of Section 23 under the Domestic Violence Act, it only intends to provide custody of the child only when there is proceeding pending under the Act. This measure is only contemplated as an interim measure only and this is subject to the commission of Domestic Violence. While on the other hand, Section 25 of the Guardians and Wards Act is not a situation contemplating an interim custody rather it only intends to take away a ward from the custody of either of the spouse or the guardian and taking into consideration the welfare of the child return it to the custody with whom the courts feels to be in the interest of the child. Thus, the purpose is entirely different.”

The Court was hearing an Appeal filed by a woman challenging the Family Court’s order of rejection of her application for grant of her minor son’s custody. The lower Court had accepted the husband’s contention that the denial of custody of the child under Section 23 of the Domestic Violence Act would result in an automatic rejection of application under Section 25 of the Guardians and Wards Act as well.

The High Court, however, refused to accept this contention, observing, “The legislature in its wisdom has framed two independent Acts i.e. Guardians and Wards Act, 1980 and Protection of Women from Domestic Violence Act, 2005. These two legislatures have got a different object to be achieved. Since the purpose and intention of the two legislatures being different in accordance with the respective SORs, they will not in any manner override the proceedings provided under either of the Acts.”

The Court, thereafter, set aside the Family Court’s order, opining that the same was “absolutely perverse and without application of mind”. It granted the minor son’s custody to the mother, until the proceedings under Section 25 are finally decided and granted visiting rights to the father.

Read the Judgment Here