In the matter of Sham Kumbhakarna vs. Yogita, a Criminal Revision Petition was filed before the Aurangabad Bench of the Bombay High Court challenging the judgment and order of the Sessions Court which confirmed the judgment and order delivered by the Magistrate’s Court. The said order stated that the custody of the children of the contesting parties be given to Respondent No.1 during summer vacations until they attain the age of majority and also the Petitioner No 1 was to make necessary arrangements to facilitate respondent No.1 to meet her minor children during other holidays. The Petitioner strongly opposed the said order on the grounds that it was permanent in nature and needed to be rectified.

The primary issue before the high court was whether the words “temporary custody” used in Section 21 of the Act, would refer to grant of custody of the children during pendency of the application filed under Section 12 of the Act or whether it could be granted permanently covering the period after disposal of that application as well. The Bench, whilst hearing the arguments and advancements of the Counsels and after going through the orders being put under challenge by way of the revision, made the following observation:

“The learned Additional Sessions Judge has interpreted the expression “at any stage of hearing” to mean and include even the stage when the application is decided finally. According to him, the expression, “at any stage of hearing” cannot be given restricted meaning to limit it “during pendency of the application” and the Magistrate can grant temporary custody of child or children to the aggrieved person while deciding the main application”.

The Bench finally concluded to passing orders by allowing the prayers of the revisions petition by making the following observations as under:

 “The learned Magistrate was not empowered to grant permanent relief in respect of custody of children at the time of deciding the application filed by respondent No.1 under Section 12 (1) of the Act. The directions given by the learned Magistrate at the time of disposing the application under Section 12 (1) of the Act in respect of custody of the children are beyond the jurisdiction of the learned Magistrate. The learned Additional Sessions Judge did not properly and correctly interpret the expressions “at any stage of hearing” and “temporary custody” as used in Section 21 of the Act. The impugned judgment and order to the extent of directions given in respect of custody of children are not legal, proper and correct. They are liable to be quashed and set aside to that extent.”


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Judgment Link: Sham Kumbhakarna and Others Versus Yogita Kumbhakarna and Anr