The high court bench of Hon’ble Ms. Justice Jyoti Singh held that, High Court can use extraordinary power if there is no remedy available. Bench while dismissed the mother plea said that the facts and circumstances do not call for any urgent intervention in the matter.
The bench said that, “Suffice would it be to note that facts and circumstances do not call for any urgent intervention to permit the Petitioner to bypass the remedy of Statutory Appeal.”
The bench further said that “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.”
Relief sought by petitioner mother before the Learned Metropolitan Magistrate:
The mother filed a complaint case under the Protection of Women from Domestic Violence Act, 2005. The case was filed against the respondent husband. The petitioner wife filed various application under section 23 of the act to grant interim relief.
In her application for interim relief, she demanded Rs 5 lacs monthly for maintenance. She also filed interim relief, to bring back minor children; father to not to threaten; father to not to take children out of town; father to not to create any hurdle in life of applicant;
In the matter Learned Magistrate ordered visitation rights to the petitioner mother and the custody remain with the respondent father.
The petitioner mother, approached the High Court under Section 482 of CrPC against the Learned Magistrate order while there was remedy available under section 29 of the act.
Submission by the learned counsel of petitioner Mother
The learned counsel Ms. Rajkotia of the petitioner submitted that;
“the Learned Magistrate has acted beyond the jurisdiction and scope of the very provisions of the Act, while granting custody of the minor daughters to the father and only visitation rights to the mother. As per the mandate of the Act, the Learned Magistrate should have restored the custody to the Petitioner, keeping in mind the fact that the children are girls and the youngest one is only three years old. A mother is best suited to look after the needs of growing daughters, particularly, the sensitivities of their emotional needs and biological requirements.”
Ms. Rajkotia also submitted that “youngest daughter is under 5 years of age and it is a mandate under Section 6 of the Hindu Minority and Guardianship Act, 1956 that the child should be in care and custody of the mother.”
She then submitted that “the Learned Magistrate has premised the impugned decision on a foundation that the Petitioner is suffering from a psychiatric problem and continues to be on medication for the said illness and thus would be unable to take care of the children.”
Ms. Rajkotia further submitted that “this presumption is without any basis.”
Ms. Rajkotia submitted over maintainability aspects;
“the present Petition is maintainable in this Court as mere availability of alternate remedy cannot be a ground to disentitle the relief under Section 482 Cr.PC, more so, when the Impugned Order is without jurisdiction and the interest and welfare of three minor children is involved.”
The Counsel Submission
Ms. Rajkotia, the learned counsel for the mother, submitted that all the judgement cited deals with the remedy of appeal under section 29 of the Act and none of the judgements deals with the custody of the children.
“Ms. Rajkotia submits that while all the judgements deal with the issue of the remedy of an Appeal under Section 29 of the Act, but those were the cases where the Impugned Orders passed under Section 23 of the Act were with respect to interim maintenance and none of the judgements deal with the issue of the custody of the children. The present Petition seeks a relief for custody of minor female children, who can be best looked after by their mother and, therefore, the sensitivity and concerns involved in the present case, are different from the issue of maintenance or other aspects with which those cases were concerned.”
Ms. Anand Learned Counsel for the Respondent husband, submitted that, “Petitioner has remedy of an Appeal under Section 29 of the Act and therefore the present Petition is not maintainable under Section 482 Cr.PC.”
Observation of The Bench
The bench referring the Supreme Court judgement said that, high court can use extraordinary powers in extraordinary circumstances for immediate and timely judicial interdiction or mandate. It further added that, “inherent powers of the High Court are not conferred by the Criminal Procedure Code”.
“From the conspectus of judgements, it is clear that inherent powers of the High Court are not conferred by the Criminal Procedure Code and are only saved by it and nothing can affect its amplitude, yet Courts have imposed self limitations for exercise of the power when there are specific provisions of alternative remedies, and invasion in areas, so set apart, is in exceptional and only in compelling circumstances.”