Karnataka HC Leaves Woman’s Child-Custody Plea Under Domestic Violence Act To Magistrate, If Custodians Challenge Maintainability

In brief

The question

1. Whether the respondent’s petition under the Domestic Violence Act, in light of its prayer and the existing custody order, was maintainable against the petitioners

The court held

The High Court did not decide whether the Domestic Violence Act petition was maintainable and did not quash the proceedings.

It also directed

It disposed of the writ petition with the direction that, if the petitioners appear and raise maintainability in their statement of objections, the Trial Magistrate must consider and decide that issue appropriately.

The petitioners may challenge any adverse order in accordance with law.

01Facts

The petitioners, the respondent’s in-laws, had custody of the respondent’s minor child under a compromise order made in W.P. (Habeas Corpus) No. 24/2020.

¶ 3–6

A subsequent application to modify that order was dismissed, with liberty for the aggrieved party to approach the competent court for custody or visitation relief.

¶ 3–6, 11

The respondent then filed Crl. Misc. No. 23/2023 before the Principal Civil Judge and JMFC, Puttur, under Sections 19, 20, 22 and 23 of the Protection of Women from Domestic Violence Act, 2005.

¶ 7–8

The petitioners sought to quash those proceedings, contending that the Act did not provide for the custody relief sought and that the petition was not maintainable.

¶ 12–15

02Issues

i.1. Whether the respondent’s petition under the Domestic Violence Act, in light of its prayer and the existing custody order, was maintainable against the petitioners

¶ 13–15, 19

ii.2. Whether the pending proceedings should be quashed before the petitioners had appeared and raised their maintainability objection before the Trial Magistrate

¶ 16–20

03Law Applied

The petition invoked Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, and concerned relief sought under Sections 19, 20, 22 and 23 of the Protection of Women from Domestic Violence Act, 2005.

p. 2

The Court also considered the Division Bench’s order in W.P. (Habeas Corpus) No. 24/2020, which left it open to seek custody, interim custody or visitation relief before the competent court.

¶ 11

The Court did not decide the substantive scope of the Domestic Violence Act or adopt the Bombay High Court decision cited by the petitioners; it held that the Trial Magistrate must consider maintainability if the petitioners raise it in their objections.

¶ 19

Provisions in the judgment · 5 · Linked ones open on LawLens

Code of Criminal Procedure, 1973 Section 482

Protection of Women from Domestic Violence Act, 2005 Section 19 Section 20 Section 22 Section 23

04Reasoning

Because the earlier habeas corpus order expressly permitted proceedings before a competent court for custody-related relief, the respondent’s subsequent application could not be treated as an abuse of process solely on the petitioners’ contention that the Domestic Violence Act did not permit the relief sought.

¶ 11–14

The petitioners had not yet appeared before the Trial Magistrate. The High Court therefore left the maintainability question for that court to determine after considering the petitioners’ objections, the relief sought and the existing custody arrangement.

¶ 16–19