“If it is held that the husband, in absence of any application for grant of custody can maintain his application for visitation right will advance the object of the provision.”
The Bombay High Court recently upheld a lower court order that allowed an application filed by a father under Section 21 of the Domestic Violence Act, granting him visitation rights to his child.
In this case, the wife had filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, seeking relief under Sections 18, 19, 20, 21 and 22 of the said Act. An application filed by the husband under Section 21 of the Act in the said proceedings was allowed granting him visitation rights to keep custody of his child for 48 hours for twice in a month. This order was upheld by the district court.
The wife then approached the high court contending that the husband has no right to independently prefer an application for custody orders as contemplated under Section 21 of the Domestic Violence Act, 2005.
The relevant provision itself says that such an application u/s 21 of the DV Act can be preferred by the aggrieved person or any person on her behalf during the pendency of her application under for any reliefs under the DV Act.
But, Justice Prakash D Naik observed that such an interpretation will render the provision incomplete. The court observed: “If the interpretation given on behalf of the wife aggrieved parties accepted it will render the provision incomplete as in case where wife – aggrieved party seeks custody of the child, if the child is in custody of the husband and an order of custody is passed in favour of the aggrieved party, visitation right can be granted to the husband. But if custody lies with the wife – aggrieved party, than the husband will have no remedy of visitation right if the interpretation as contemplated by the wife – aggrieved party is given effect to and thereby it can easily be said that interpretation given by the aggrieved party – wife will never advance the cause of the child. On the other hand, if it is held that the husband, in absence of any application for grant of custody can maintain his application for visitation right will advance the object of the provision as in case of child being in custody of the husband, application for custody can be filed by the wife wherein the husband can have visitation right if order is of custody of child passed in favour of the aggrieved party. In other situation, when the custody of the child lies with the wife, there would be no occasion for the wife for filing an application for custody. In that situation,