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 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. 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 of the Protection of Women from Domestic Violence Act, 2005 for ex-parte order of interim custody of their minor girl child Sadhika Gupta, in favour of Saveri. 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.