The Bombay High Court in Sham Kumbhakarna vs.Yogita [CRIMINAL REVISION APPLICATION NO.133 OF 2014] has held that no ‘permanent custody’ orders can be made in proceedings under the Protection of Women from Domestic Violence Act, 2005. This judgment was authored by Justice Sangitrao S Patil.
However, the Court could grant ‘temporary custody’ of a child or children to the aggrieved person during the pendency of the application under the Act.
The Court gave this observation in a case where a Judicial Magistrate had ordered the husband to give the custody of the minor children to his wife during the summer vacations until they attain the age of majority and also allowed the wife to visit her children during other holidays.
The Court disagreed with the view of the Magistrate that the temporary custody can be granted not only during the pendency of application for protection orders or other reliefs but also after the disposal of the said application. The Court has further clarified that the custody of children during the pendency of the application for protection order or other reliefs can be granted only temporarily and not permanently.
The Court was of the view that granting permanent custody of a child or children during the pendency of the application for protection orders or other reliefs was never the intention of the Legislature while creating the Act.