Rohit Yadav vs State of U.P. and Another

HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL REVISION No. - 4062 of 2025
Rohit Yadav
.....Revisionist(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Revisionist(s) : Madhu Ranjan Pandey
Counsel for Opposite Party(s) : Rishika Raj Singhal, Shivendra Raj
Singhal, G.A.
Court No. - 87
AFR
HON'BLE LAKSHMI KANT SHUKLA, J.
1. Supplementary affidavit has been filed today, is taken on record.
2. Heard Sri Madhu Ranjan Pandey, learned counsel for the revisionist, Sri
Ramesh Kumar Singh, learned AGA for the State and Sri Shivendra Raj
Singhal, learned counsel for the opposite party no.2.
3. I have perused the material available on record.
4. The revisionist-Rohit Yadav has approached this Court by means of the
present criminal revision challenging the impugned judgment and
order dated 16.07.2025 passed by Additional Sessions Judge, Court No.1,
Saharanpur (hereinafter referred to as the "appellant court") in Criminal
Appeal No.23 of 2025 (Rohit Yadav vs. State of U.P. and another) wherein
the appellate court has dismissed the said criminal appeal filed by the
revisionist against the judgment vide order dated 06.03.2025 passed by
learned Civil Judge (Junior Division)/FTC-I (Crime Against Women)
Saharanpur (hereinafter referred to as the "trial court") by which the trial
court ordered the revisionist to handover the custody of his son, namely,
Master Krishna to the opposite party no.2-wife.
5. Feeling aggrieved by the aforesaid judgment and order passed by the
appellate court, the present criminal revision has been filed, inter alia, on the
grounds that the trial court has passed the impugned order beyond its

CRLR No. 4062 of 2025
2
jurisdiction upholding the finding of the trial court, therefore, the impugned
order is illegal, arbitrary, contrary to law. Accordingly, a prayer has been
made to set aside the impugned judgment and order and allow the present
criminal revision.
6. Learned counsel for the revisionist submitted that there is no provision
under the periphery of the Protection of Women from Domestic Violence
Act empowering the Magistrate to decide the custody of the child.
7. In support of his submission, learned counsel for the revisionist has placed
reliance on the judgment of Rajasthan High Court in the case of Smt. Payal
Agarwal vs. Kunal Agarwal, 2014 SCC OnLine Raj 1227 , wherein in the
Court has observed as under (paragraph 7):
"Under section 21 of the Act 2005 independent remedy has not been
provided to seek custody of the minor child and jurisdiction has been
conferred on the Magistrate to grant temporary custody of such a child to
the aggrieved person during the course of hearing of an application for
grant of protection order or for any other relief under the provisions of
Act whereas under the provisions of the Act of 1984 any person can file
an independent suit or proceeding in relation to the guardianship of the
person or custody of or access to any minor. Thus, the scope of Act of
1984 is much wider in comparison to section 21 of the Act of 2005. As the
non obstante clause used in section 21 of the Act of 2005 does not refer to
any particular statute or provision or provisions of a particular statute
and rather it is general in nature, the Court has to determine the scope of
its use very strictly. The law is that when a non obstante clause is used in
the aforesaid fashion, the extent of its impact has to be found out on the
basis of consideration of the intent and purpose of insertion of such a
clause. When a non obstante clause is used in such a blanket fashion the
Court has to determine the scope of its use very strictly. Section 8 of the
Act of 1984 confers exclusive jurisdiction upon the Family Court in
relation to the suits and proceedings of the nature mentioned in
explanation to Section 7 of the Act. Although, Section 21 of the Act of
2005 also contains the non-obstante clause, but the same has limited
application and despite being subsequent legislation it cannot have
overriding effect on the Act of 1984. When both the enactments have the
non obstante clause then in that case the proper perspective would be that
one has to see the subject and dominant purpose for which the special
enactment was made and in case the dominant purpose is covered by the
contingencies, then notwithstanding that the Act might have come at a
later point of time still the intention can be ascertained by looking to the

CRLR No. 4062 of 2025
3
objects and reasons. The Act of 1984 was specially meant for
establishment of special Courts so that matters referred in explanation to
Section 7 of the Act can be dealt by the special Courts established for that
purpose whereas the object of enactment of the Act of 2005 was to protect
the woman from being victim of the domestic violence and to prevent the
occurrence of domestic violence in the society."
8. The Rajasthan High Court thus held that Section 21 of the Act of 2005
does not create an independent forum for adjudicating questions relating to
permanent custody of a minor. According to the said decision, the
jurisdiction of the Magistrate under Section 21 is confined to granting
temporary or interim custody during the pendency of proceedings under the
Act of 2005, whereas substantive questions relating to guardianship and
permanent custody fall within the exclusive domain of the Family Court
under Section 7 of the Family Courts Act.
9. Learned counsel for the revisionist has further placed reliance of the
judgment of the Apex Court in the case of Poonam Wadhwa v. Ajay
Wadhwa & Others, 2025 SCC OnLine SC 2700 , wherein the Apex Court
has held as under (paragraph 15):
"However, though we may find that the aforesaid aspects ought not to
have weighed with the High Court while determining the custody issue,
we should not be oblivious of the fact that Arjun is a male child and is
aged above 5 years by now. Moreover, the education of Arjun continues
to be as a student at Heritage School and therefore, his education is not
disturbed whether he remains in the custody of his father or mother. What
is important is that from our interactions with Arjun we noticed that he
was not willing to part company of his father. We also took notice of the
fact that his father has few elder members at home including Arjun's
grandfather who are giving company to the child. In such circumstances,
having regard to the fact that the male child is now above five years old
and he continues to be in the same school where he was studying earlier
and he has no issues with his own father and is not willing to part
company of his father, an interference with the order passed by the High
Court is not required, particularly in view of the fact that the appellant
has visitation rights as directed earlier by this Court vide order dated 3rd
May, 2024 passed in SLP (Criminal) No.836 of 2024. Further, the High
Court has not closed the custody issue rather it gave appellant right to
seek custody and pursue remedies under relevant statutes. Consequently,
we do not find a good reason to disturb the operative portion of the
impugned order. Subject to above, the appeal is dismissed. The

CRLR No. 4062 of 2025
4
application of the respondent seeking discharge of the visitation rights
granted vide order dated 3rd May 2024 by this Court in SLP (Criminal)
No.836 of 2024 is rejected."
10. It is submitted that the Supreme Court, while declining to interfere with
the custody arrangement made by the High Court, recognised that the
paramount consideration is the welfare of the child. The Court also noticed
that the child was above five years of age, was continuing in the same
school, had expressed his preference to remain with his father, and that the
mother continued to enjoy visitation rights. Importantly, the Supreme Court
observed that the custody issue had not been finally concluded and that the
parties were at liberty to pursue appropriate remedies before the competent
Family Court under the relevant statutory provisions.
11. Reference has also been made to Explanation (g) to Section 7(1)(b) of
the Family Courts Act, 1984, which confers jurisdiction upon the Family
Court in relation to proceedings concerning the guardianship of a minor,
custody of a minor or access to a minor.
12. Placing reliance upon the aforesaid decisions as well as the provisions of
the Family Courts Act, learned counsel for the revisionist contends that the
impugned orders suffer from lack of jurisdiction and are therefore liable to
be set aside.
13. Per contra, learned A.G.A. for the State as well as learned counsel
appearing for opposite party no.2 have vehemently opposed the revision. It
is submitted that Section 21 of the Protection of Women from Domestic
Violence Act, 2005 expressly empowers the Magistrate to grant custody of a
minor child and, therefore, the impugned orders do not suffer from any
jurisdictional error.
14. For ready reference, Section 21 of the Act, 2005, is reproduced below:
" 21. Custody orders. - Notwithstanding anything contained in any other
law for the time being in force, the Magistrate may, at any stage of
hearing of the application for protection order or for any other relief
under this Act grant temporary custody of any child or children to the
aggrieved person or the person making an application on her behalf and
specify, if necessary, the arrangements for visit of such child or children
by the respondent:Provided that if the Magistrate is of the opinion that
any visit of the respondent may be harmful to the interests of the child or

CRLR No. 4062 of 2025
5
children, the Magistrate shall refuse to allow such visit."
15. Perusal of the Section 21 of the Act, 2005, clearly transpires that the
Magistrate has fully empowered to decide the custody of a minor. It is, thus,
contended that the submissions urged by learned counsel for the revisionist
is wholly misconceived, hence, the present revision is liable to be dismissed
by this Court.
16. In view of provisions contained in Section 21 of the Act, 2005, when
confronted, learned counsel for the revisionist submitted that the Magistrate
can decide the custody of a minor in a proceeding pending before it under
certain provisions of the Protection of Women from Domestic Violence Act,
2005, but it is conclusive that the Magistrate can pass an interim order in this
regard. The Magistrate is not empowered to pass final order for custody of a
minor child. It is, thus, contended that the submissions urged by learned
counsel for the opposite party no.2 is not sustainable.
17. I have heard the rival submissions advanced by the learned counsel for
the parties, perused the record and given due consideration to the decisions
referred to above.
18. Firstly, the law laid down by the Supreme Court in Poonam Bajwa
(supra) doesn't not discuss the provisions contained in Section 21 of the
Protection of Women from Domestic Violence Act meaning thereby the
Supreme Court while deciding the matter, reference of Section 21 of the act
2005 was not made before the Supreme Court.
19. So far as the finding recorded by Rajasthan High Court is concerned,
such finding is not binding on this Court having concurrent jurisdiction.
Section 7 of the Family Courts Act, 1984 starts with words "Subject to the
other provisions of this Act" while the words contained in Section 21 of the
Act, 2005 "Notwithstanding anything contained in any other law for the time
being in force" when two enactments are enforceable in same kind having
contrary provisions later enactment would prevail over earlier enactment.
20. Secondly, the provisions contained in Section 7 of the Family Courts Act
keeps overriding effect only upon other provisions of the said Act but not
over the provisions of any other Act. Apart from that, the words used in
Section 21 of the Act, 2005 clearly indicates that these provisions have
overriding effect upon any other law for the time being in force meaning

CRLR No. 4062 of 2025
6
thereby Section 21 of the Act, 2005 keeps overriding effect upon the
provisions of Section 7 of the Family Courts Act to the extent of
applicability of Section 21 of the Act, 2005.
21. In the aforesaid view of the matter, this Court is unable to subscribe to
the proposition laid down in to the extent it
Smt. Payal Agarwal (supra)
holds that Section 21 of the Act of 2005 cannot operate notwithstanding the
provisions of the Family Courts Act. With utmost respect, this Court is of
the considered opinion that the said decision does not lay down the correct
legal position and, therefore, cannot be followed.
22. The next submission of the learned counsel for the revisionist relates to
the nature of the order passed under Section 21 of the Act of 2005. On this
aspect, learned counsel himself has fairly conceded that the Magistrate is
competent to pass an interim custody order under Section 21. Significantly,
the operative portion of the order dated 06.03.2025 passed by the trial court
records:
"
प्रार्थिया का प्रार्थना पत्र अंतर्गत धारा-23 तथा धारा-21 घरेलू हिंसा

अधिनियम का अंतरिम प्रार्थना पत्र स्वीकार किया जाता है।"
23. The language employed by the trial court leaves no room for doubt that
the order is purely interim in nature and has not finally determined the issue
of permanent custody. Consequently, the contention that the Magistrate has
exceeded the jurisdiction conferred under Section 21 is devoid of substance.
24. For all the reasons recorded hereinabove, I find no illegality, perversity

or jurisdictional error in the impugned judgment and order warranting
interference in exercise of revisional jurisdiction. The criminal revision,
being devoid of merit, is accordingly dismissed .
July 31, 2026
Ajeet
(Lakshmi Kant Shukla,J.)

Digitally signed by :-
AJEET KUMAR PATEL
High Court of Judicature at Allahabad