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NEW DELHI: The Supreme Court on Wednesday sought attorney general K K Venugopal’s views on whether a man has the right under the Protection of Women from Domestic Violence Act to move court for visitation rights to his children who are in their mother’s custody.
Can Section 21 of the DV Act tilt completely in favour of the woman so as to mandate brushing aside of a genuine request by the man to meet his children whose custody has been granted to his estranged wife after she filed a complaint? This question was raised by a man who was denied visitation rights to meet his children and whose plea came up before the apex court through the SC Legal Services Committee.
Petitioner’s counsel Asha Gopalan Nair had raised the issue in 2018 questioning the mandate of Section 21 which overrides provisions of all other laws and says that in a domestic violence case lodged by a woman, she or her representative would get the custody of children and that the magistrate would have the discretion to refuse visitation rights to the husband accused in the case.
Four years ago, the SC had sought the assistance of the attorney general saying “since the petition raises an important question of law, which is, whether an adult male member other than an aggrieved person has a right to file an application under Section 21 of the Protection of Women from Domestic Violence Act, 2005 for seeking visitation rights”.
Section 21 of the DV Act provides that, “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 (the woman) 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 children, the magistrate shall refuse to allow such visit.”
A bench of Chief Justice N V Ramana and Justices A S Bopanna and Hima Kohli on Wednesday told the AG that “if possible please file a written note on all aspects of this important question”. Venugopal said, “I will give a detailed note on a case where the wife does not seek any relief against the husband but hangs on to the custody of children and refuses to give the husband visitation rights by consent. I will give the written submissions in two weeks.”
In the case in hand, the woman had filed a case under the DV Act against her husband, his sister and his brother-in-law. In that case, the husband had filed an application before the trial court seeking the right to visit his children. The trial court had permitted the husband visitation rights. However, on appeal by the woman, the sessions court had overturned it. The husband had appealed unsuccessfully before the Gujarat HC and finally moved the SC.
Can Section 21 of the DV Act tilt completely in favour of the woman so as to mandate brushing aside of a genuine request by the man to meet his children whose custody has been granted to his estranged wife after she filed a complaint? This question was raised by a man who was denied visitation rights to meet his children and whose plea came up before the apex court through the SC Legal Services Committee.
Petitioner’s counsel Asha Gopalan Nair had raised the issue in 2018 questioning the mandate of Section 21 which overrides provisions of all other laws and says that in a domestic violence case lodged by a woman, she or her representative would get the custody of children and that the magistrate would have the discretion to refuse visitation rights to the husband accused in the case.
Four years ago, the SC had sought the assistance of the attorney general saying “since the petition raises an important question of law, which is, whether an adult male member other than an aggrieved person has a right to file an application under Section 21 of the Protection of Women from Domestic Violence Act, 2005 for seeking visitation rights”.
Section 21 of the DV Act provides that, “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 (the woman) 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 children, the magistrate shall refuse to allow such visit.”
A bench of Chief Justice N V Ramana and Justices A S Bopanna and Hima Kohli on Wednesday told the AG that “if possible please file a written note on all aspects of this important question”. Venugopal said, “I will give a detailed note on a case where the wife does not seek any relief against the husband but hangs on to the custody of children and refuses to give the husband visitation rights by consent. I will give the written submissions in two weeks.”
In the case in hand, the woman had filed a case under the DV Act against her husband, his sister and his brother-in-law. In that case, the husband had filed an application before the trial court seeking the right to visit his children. The trial court had permitted the husband visitation rights. However, on appeal by the woman, the sessions court had overturned it. The husband had appealed unsuccessfully before the Gujarat HC and finally moved the SC.
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