The Hon’ble High Court of Delhi vide judgement dated 20.07.2020 held that High Courts cannot entertain a petition in its extraordinary power under Section 482 of the Criminal Procedure Code 1973, given the fact that there is a clear remedy of appeal under Section 29 of the Protection of Women against Domestic Violence Act 2005.

The present judgement was pronounced in response to a petition filed by one Sirisha Dinavahi Bansal under Section 482 Criminal Procedure Code 1973, seeking directions to set aside the Order dated 01.06.2020 passed in Complaint Case No. 2248/2020 under the Protection of Women from Domestic Violence Act, 2005.

The Petitioner filed a complaint under the Protection of Women from Domestic Violence Act, 2005 before the Trial Court on 04.03.2020. By way of this complaint, the Petitioner sought various reliefs such as Protection Order under Section 18 of the Protection of Women from Domestic Violence Act, 2005, order restraining the Respondent from dispossessing the Petitioner from the shared household, and monetary reliefs such as medical expenses and rentals including household expenses.

Custody orders with respect to the Petitioner’s three minor children were also sought under Section 21 of the said Act. Along with the complaint, the Petitioner also filed an Application under Section 23 of the Protection of Women from Domestic Violence Act, 2005 for grant of various interim reliefs, one of them being a direction to the Respondent to grant temporary custody of the children to the Petitioner.

On 16.03.2020, Respondent entered appearance and with the consent of the parties, matter was referred to the Delhi High Court Mediation and Conciliation Centre for 17.03.2020. On account of the Pandemic Covid-19, Mediation could not take place and it was adjourned for 21.03.2020 and thereafter for 03.04.2020.

On 20.04.2020, Petitioner filed a Petition under Section 482 Criminal Procedure Code 1973, 2020 before the said High Court seeking the following directions:

  1. Direct the Respondent to furnish the address where he is presently residing with the children;
  2. Direct the Respondent to facilitate meeting by way of video conferencing with the children everyday till they remain in his care and custody;
  3. To grant the interim custody of the three minor children namely Baby Riddhi aged 10 yrs, Baby Radhika aged 7 yrs and Baby Ratna aged 3 yrs to the Petitioner till the issues are resolved in Mediation and /or;
  4. Pass such other or further orders as this Hon’ble Court may deem fit in the facts and circumstances of the case;

Order was accordingly passed in the said Petition, whereby an interim arrangement was arrived at, giving the Petitioner the right to interact with the children through skype, etc. This order was subsequently continued keeping in view the fact that the Petitioner was in a self-quarantine, having visited a Police Station on 18.04.2020.

On 01.06.2020, Learned Magistrate directed that the custody of the children would continue to remain with the father/Respondent and as an interim measure visitation rights were granted to the Petitioner. Thus, the Hon’ble High Court of Delhi disposed of the petition filed before it, directing that the interim arrangement of video conferencing shall continue, as prayed for by the Petitioner.

Then, the Petitioner filed another petition under Section 482 Criminal Procedure Code 1973, seeking directions to set aside the order dated 01.06.2020 passed by the Learned Metropolitan Magistrate.

An objection was then raised by the counsel for the Respondent against the maintainability of the present Petition before the Delhi High Court. The Counsel submitted that courts have repeatedly held that when an alternate and efficacious remedy of Appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 was available, Petition under Section 482 of the Criminal Procedure Code 1973 would not lie.

Taking note of the present matter, Justice Jyoti Singh noted that  a careful reading of several (Supreme Court) judgments shows that the Court has repeatedly articulated strong restrictions on the use of extraordinary powers and observed that the High Courts need not go beyond wholesome inhibitions unless the exceptional circumstances call for an urgent and timely judicial prohibition or mandate.

Justice Singh emphasized that the inherent powers of the High Court are not conferred by the Criminal Procedure Code 1973, and are only saved by it and nothing can affect its amplitude, yet Courts have imposed self-limitations for exercise of the power when there are specific provisions of alternative remedies, and invasion in areas, so set apart, is in exceptional and only in compelling circumstances.

The Judge iterated that the Court is not persuaded in the facts and circumstances of the present case, to entertain the petition in its extraordinary power under Section 482 Cr.PC, given the fact that there is a clear remedy of Appeal under Section 29 of the Act.

Justice Singh concluded that the present facts and circumstances do not call for any immediate intervention to enable the Petitioner to bypass the formal appeal remedy. Petitioner was unable to make a case as to whether and why Appeal’s remedy was not successful.

The bench also declined to consider the claim that since the matter relates to the custody of minor girls, appeals remedy is not successful. “Legislature in its wisdom has appealed against all ‘rules’ under Section 29 of the Act and has made no exception to detention orders,” the Single Judge said.

Furthermore, the court held that it was not shown why the Applicant should not have access to an appeal remedy and why the Court of Appeal was unable to exercise its authority to deal with an impugned temporary custody order, both in law and in reality.

“Preliminary objection of the Respondent has given rise to a neat legal nodus before this Court being the maintainability of a Petition under Section 482 Cr.PC, when an alternate remedy of a Statutory Appeal under Section 29 of the Act is available to the Petitioner. Reading the provisions of the Act shows that under the Scheme of the Act, Section 29 provides for an Appeal to the Court of Sessions within 30 days from the date on which the Order made by the Learned Metropolitan Magistrate is served on the aggrieved person or the Respondent, as the case may be, whichever is later”, noted Justice Jyoti Singh.

Order: Delhi HC Judgement