Matter remanded for fresh adjudication of interim custody applications after ensuring mutual opportunity of hearing.

The applicant (wife) filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (D.V. Act) against respondent no. 2 (husband).

Along with the complaint, she filed an application under Section 23 of the Act seeking interim custody of their five-year-old twin daughters.

On 03.02.2026, the Judicial Magistrate granted temporary custody to the applicant.

Respondent no. 2 appealed this order (Domestic Violence Appeal No. 32 of 2026) before the Sessions Judge, Dehradun, who stayed the Magistrate's order on 20.02.2026 at the admission stage without hearing the applicant.

The applicant then moved the High Court under Section 528 (likely BNSS/equivalent to 482 CrPC) to quash the stay order.

1. Whether the appellate court erred in staying the interim custody order at the admission stage without issuing notice or affording the applicant an opportunity of hearing.

2. Whether, by consent of the parties, the matter should be remanded to the Trial Court for fresh adjudication.

The court primarily applied Section 21 of the Protection of Women from Domestic Violence Act, 2005, which governs custody orders, and Section 23, which empowers the Magistrate to grant interim and ex-parte orders.

The court also relied on the principle of Audi Alteram Partem (duty to afford a fair hearing) and the procedural mechanism for remand and disposal by consent in matrimonial/custody disputes.

The applicant argued that the Sessions Judge’s stay order was legally unsustainable because it was passed without notice, effectively negating the Magistrate’s finding that the children were at risk of being forcibly taken.

During the High Court proceedings, both parties reached a consensus that rather than litigating the stay order, the original interim custody application should be re-decided on its merits.

The court observed that the children were currently with the mother.

To balance the rights of the father while the matter was pending, the court exercised its equitable jurisdiction to provide visitation rights via technology, ensuring the welfare of the minors remained the paramount consideration while the legal dispute was remanded for a fresh hearing.

The matter was remanded to the learned Magistrate to decide the application under Section 23 read with Section 21 of the D.V. Act afresh.

The Court directed respondent no. 2 to file objections within two weeks, the applicant to file a rejoinder within one week thereafter, and the Magistrate to decide the matter within a final week.

Pending this decision, the applicant was directed to facilitate video calls between the father and the daughters every alternate day between 5:00 P.M. and 6:00 P.M.

The application was disposed of accordingly.