Delhi High Court
Delhi High Court
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Can High Court exercise power under Section 482, CrPC to bypass remedy of appeal under Section 29 of Domestic Violence Act? Delhi HC answers

A Section 482 CrPC petition had been preferred against a Magistrate's order granting custody of children to the father.

Aditi Singh

The Delhi High Court has held that in the absence of compelling reasons, the Court cannot exercise its extraordinary power under Section 482 of the Code of Criminal Procedure (CrPC) when there is a remedy of appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005.

The judgement was passed by a Single Judge Bench of Justice Jyoti Singh.

In March 2020, the Petitioner-wife filed a complaint against the Respondent-husband under the Protection of Women from Domestic Violence Act, 2005.

Along with the complaint, Petitioner-wife also filed an Application under Section 23 of the Act for grant of various interim reliefs, including the temporary custody of the children.

The Magistrate ultimately ordered that the custody of the children would continue to remain with the Respondent-husband and, as an interim measure, granted visitation rights to the Petitioner-wife.

The Petitioner-wife moved a Section 482, CrPC petition against the Magistrate's order.

The counsel for the Respondent-husband argued that in view of the statutory remedy of an Appeal under Section 29 of Protection of Women of the Domestic Violence Act, the present petition was not maintainable.

The Petitioner justified the Court's jurisdiction on the ground that the Magistrate had acted beyond the jurisdiction and scope of the Act when it granted the custody of the minor daughters to the father.

It was stated that the mere availability of an alternate remedy could not be a ground to disentitle the relief under Section 482, CrPC, more so, when the Order was without jurisdiction and the interest and welfare of three minor children were involved.

To arrive at its conclusion, the Court considered the submissions of the parties and various judgements passed by the Supreme Court and the High Courts.

The Court stated that the Supreme Court had, time and again, spelt out clear restraints on the use of extraordinary powers, which could be used only in exceptional and compelling circumstances. It remarked,

"As the quote goes in one of the judgements 'Mentor of law is justice and a potent drug should be judicially administered.'"
Delhi High Court

The Court opined that it was not persuaded in the facts and circumstances of the present case, to entertain the petition in its extraordinary power under Section 482, CrPC, given the fact that there was a clear remedy of appeal under Section 29 of the 2005 Act.

"No doubt the facts and circumstances of a given case could be egregious and compelling, demanding immediate judicial intervention by this Court and invasion into domains exercisable by subordinate Courts under Special Statutes, but the present case does not call for exercise of the said mandate.", the Court said.

Rejecting that Petitioner-wife's contention that the remedy of appeal was not efficacious, the Court stated,

"Legislature in its wisdom has provided for Appeal under Section 29 of the Act against all 'orders' and has not made any exception to orders relating to custody. Secondly, it is not shown why the Petitioner cannot resort to the remedy of an Appeal and why the Appellate Court is incapable of or incompetent to exercise its jurisdiction to deal with an impugned order of temporary custody, both in law and facts."
Delhi High Court

In view of the above, the petition was dismissed with an observation that the competent Court was free to decide the issues uninfluenced by any observations made in the order.

Advocates Malavika Rajkotia, Mayank Grover appeared for the Petitioner-wife.

Advocate Bobby Anand appeared for the Respondent-husband.

Read the Order:

Sirisha D vs Rajiv Bansal.pdf
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