Magistrate can issue ex parte interim order granting interim custody of child to aggrieved party based on affidavit

Orissa High Court: In a criminal revision petition challenging the impugned order passed by the Sessions Judge, Cuttack, involving the transfer of custody of a five-year old to the mother by an ex-parte interim order, the Bench of S.K. Sahoo J. held that the Magistrate is empowered to pass an ex parte order in granting interim/temporary custody of any child or children to the aggrieved party even based on the affidavit filed by such aggrieved party without notice to the respondent as is clear from the conjoint reading of Section 21 and Section 23(2) of the Protection of Women from Domestic Violence Act .The only criteria must be a case of exigency under the facts and circumstances of each case which can only be considered if the application prima facie discloses regarding commission of domestic violence or likelihood of commission of such domestic violence on the aggrieved person. The Court further stated that the Magistrate has got the power to revoke the ex parte order if he is satisfied that it has been obtained by the aggrieved person by suppression of material facts or by playing fraud upon the Court.

This Court observed that the learned Magistrate had rightly passed the order of granting custody of the girl child in favour of the mother considering the welfare of the child and the petitioner is at liberty to establish before the Magistrate at appropriate stage that the psychological disorder of the opposite party, if any, is of such a nature that it would be harmful for the girl child to stay in the company of the opposite party. “This arrangement is purely interim in nature which will be decided finally by the Magistrate while considering the application filed under Section 25(2) of the PWDV Act filed by the petitioner or while disposing of the application under Section 12 of the PWD. Act”, said the Bench. [Vinay Gupta v. Saveri Nayak, 2016 SCC OnLine Ori 862, decided on 28.11.2016]

 

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