Magistrates can grant interim child custody under the Domestic Violence Act despite Family Court jurisdiction, Allahabad High Court rules

The revisionist, Rohit Yadav, challenged the order dated 16 July 2025 by which the Additional Sessions Judge, Saharanpur dismissed his criminal appeal and affirmed the trial court’s order dated 6 March 2025 directing him to hand over custody of his son, Master Krishna, to opposite party no. 2, his wife.

The trial court’s order was passed on an interim application under Sections 21 and 23 of the Protection of Women from Domestic Violence Act, 2005 (“DV Act”).

The revisionist contended that the Magistrate lacked jurisdiction to decide child custody under the DV Act and that custody matters fell within the jurisdiction of the Family Court under Section 7 of the Family Courts Act, 1984.

The State and the wife opposed the revision, relying on Section 21 of the DV Act, which expressly authorises the Magistrate to grant temporary custody of a child.

Section 21 of the DV Act provides that, notwithstanding anything contained in any other law, a Magistrate may, at any stage of proceedings for a protection order or other relief under the Act, grant temporary custody of a child to the aggrieved person and regulate visitation, including refusing visitation if it would harm the child.

Section 7 of the Family Courts Act, 1984 confers jurisdiction upon the Family Court over proceedings concerning guardianship, custody, and access to minors, subject to the other provisions of that Act.

The Court held that the non obstante clause in Section 21 of the DV Act gives it overriding effect over inconsistent provisions of other laws, including Section 7 of the Family Courts Act, to the extent of temporary custody relief under the DV Act.

The Court declined to follow Smt. Payal Agarwal v. Kunal Agarwal, 2014 SCC OnLine Raj 1227, insofar as it held that Section 21 could not operate notwithstanding the Family Courts Act.

It further noted that Poonam Wadhwa v. Ajay Wadhwa, 2025 SCC OnLine SC 2700, did not consider Section 21 of the DV Act and therefore did not determine the issue before the Court.

The Court distinguished between temporary custody during proceedings under the DV Act and final adjudication of permanent custody.

Although the Family Court has jurisdiction over substantive guardianship and custody proceedings, Section 21 expressly permits the Magistrate to make temporary custody arrangements notwithstanding other laws.

The wording of the trial court’s operative order expressly described the application under Sections 21 and 23 of the DV Act as an “interim” application/order, demonstrating that the court had not finally determined permanent custody.

Accordingly, the direction to hand over the child to the wife was treated as an interim custody arrangement within the statutory authority of the Magistrate, and not as an impermissible final custody decree.

Since the Magistrate acted within Section 21 and the appellate court correctly affirmed the order, no jurisdictional error or perversity was established.

The order dated 6 March 2025 was interim in nature and did not finally determine permanent custody.

Finding no illegality, perversity, or jurisdictional error in the orders of the courts below, the Court dismissed the criminal revision.