Criminal Appeal No. 107 of 2024 · High Court · 2025

Judgment

1. Heard Ms. Vijeta Singh, learned counsel for the applicant no.1, Mr. Chandan Sharma assisted by Mr. Shubham Tripathi, learned counsel for the opposite party no.2, learned A.G.A. for the State- respondent, and perused the record.

2. The present application has been preferred for quashing the orders dated 28.08.2023 and 09.10.2023 passed by the learned Additional Civil Judge (Junior Division)/Judicial Magistrate, Court, Allahabad, as well as the order dated 10.09.2024 passed by the learned Additional Sessions Judge/Special Judge (MP/MLA), Prayagraj, in Criminal Appeal No.107 of 2024, titled as Saumya Sajiv Kumar Sharma and another v. Sumit Vats, arising out of proceedings under Section 12 of the Protection of Women from Domestic Violence Act, 2005, District Prayagraj.

3. In brief, the facts giving rise to the present proceedings are that the marriage between applicant no.11 and respondent no.22 was solemnized on 18.01.2013. At the time of marriage, a substantial dowry comprising jewellery, cash, and other valuable articles was given by the wife’s parents. Despite this, the in-laws of the wife 1 Hereinafter referred to as the “wife” 2 Hereinafter referred to as the “husband” 2 expressed dissatisfaction with the dowry and persistently demanded additional amounts, subjecting her to continuous physical harassment and mental cruelty. From this wedlock, a girl child named Samriddhi was born, who has been arrayed as applicant no.23. She is currently studying in Class-VI at Loreto Convent Intermediate College, Lucknow.

4. After their marriage, the husband and wife resided at various locations, including Delhi, Patna, and Lucknow, in accordance with the postings of the husband. The husband is presently employed as a Deputy Chief Engineer with the Indian Railways. However, due to irreconcilable differences, their matrimonial relationship deteriorated, culminating in filing of an application under Section 12 of the Act4. This application was filed by the wife before the learned Additional Civil Judge (Junior Division)/Judicial Magistrate, Allahabad, on

02.11.2022. In the said proceedings, the wife- being the mother of the minor child- also filed an application seeking interim custody of the minor child.

5. Upon due consideration of the report submitted by the District Probation Officer and the statement of the minor child recorded by the learned Additional Chief Judicial Magistrate, the prayer for interim custody was rejected by order dated 28.08.2023. However, the learned

trial court had granted liberty to the mother to meet her minor child twice a week, specifically on every Saturday and Sunday. Thereafter, by a subsequent order dated 09.10.2023, the conditions governing visitation were modified. The modified order permitted the mother to meet the child in a conducive and healthy environment, either at a nearby park or at the residence of the husband, between 04:00 p.m. to 06:00 p.m. on every Saturday and Sunday. 3 4 Hereinafter referred to as the “child” Protection of Women from Domestic Violence Act, 2005 3

6. Aggrieved by the aforesaid orders, the wife preferred Criminal Appeal No.107 of 2024 before the learned Additional Sessions Judge/ Special Judge (MP/MLA), Prayagraj. However, the said appeal was dismissed vide order dated 10.09.2024. While rejecting the appeal, the appellate court recorded a finding that the primary consideration in matters of custody is the welfare of the minor child, which, in the present case, was found to be better secured with the father. It was particularly noted that the minor child had expressed a clear desire to reside with her father, and therefore, it was held that custody with the father would be in the child’s best interest. Additionally, the appellate court observed that the child's paternal grandparents were residing with the father, thereby contributing to a stable and nurturing environment at the father’s residence.

7. The impugned order dated 10.09.2024 has been challenged by way of the present application, wherein the wife seeks custody of the minor female child.

8. During the course of the hearing, Ms. Vijeta Singh, learned counsel for the wife, and Mr. Chandan Sharma along with Mr. Shubham Tripathi, learned counsel for the husband, were heard at length. The husband appeared in person before the Court, whereas the wife participated through video conferencing, having been summoned on short notice.

9. Upon interacting with the parties, the Court found it appropriate to direct both parties to file their respective affidavits of assets and liabilities, in accordance with the guidelines laid down by the Supreme Court in Rajnesh v. Neha and Another5. This direction was necessitated by the emergence of the issue of maintenance during the course of arguments, particularly in the context of determining which parent would be better suited to financially support the minor child. In 5 (2021) 2 SCC 324 4 compliance with the Court’s direction, both parties submitted their respective affidavits along with written arguments. Additionally, a rejoinder affidavit was filed by the learned counsel for the wife, bringing certain additional facts on record in response to the averments made in the counter-affidavit submitted by the husband.

10. Ms. Vijeta Singh, learned counsel for the wife, submitted that the impugned orders have been passed without due consideration of the object and spirit of the Act4, which is enacted to ensure adequate protection of the rights of women guaranteed under the Constitution, particularly those who are victims of any form of violence occurring within the family, and to provide for matters connected therewith or incidental thereto. It was further contended that the orders were passed while ignoring material facts and evidence placed on record. In brief, the arguments addressed by learned counsel for the wife have been outlined herein:

10.1 She next argued that the statutory provisions with respect to custody of the minor child in the Act6 and directive principles enshrined in the Constitution, besides the U.N. Convention on the Rights of the Child (UNCRC) ratified by India in 1992, have not been considered objectively by the learned trial court.

10.2 The Constitutional Courts have consistently prioritized the child’s personal care, emotional support, and overall well-being, irrespective of the statutory provisions of the Act6, as has been reiterated in a catena of judgments.

10.3 A minor girl entering puberty undergoes a critical phase of development, marked by significant physical changes and emotional transformation. In light of these factors, the learned trial court has failed to adequately consider: (i) the safety, privacy, and emotional well-being of the female child; (ii) the mother’s vital role as caregiver 6 Hindu Minority and Guardianship Act, 1956 5 and confidante; (iii) the child’s comfort in discussing sensitive and personal matters; and (iv) the potential risk of trauma arising from an unsupportive or inappropriate environment.

10.4 Leading and intrusive questions were put forth by the learned judge, thereby placing an undue burden on the child to choose between her parents. The learned judge failed to appreciate that the primary objective was to ascertain the best interests of the child, rather than to determine fault or adjudicate a contest of blame between parents whose matrimonial relationship had already suffered significant personal hardships leading to their separation. The role of the judge in such matters is inquisitorial rather than adversarial. In addition to assessing the willingness of the parents to support the child’s education and financial needs, the learned judge ought also to evaluate their moral and psychological influence on the child’s upbringing.

10.5 The observation made in the impugned order dated 28.08.2023, stating that the child has not been subjected to domestic violence and that the child’s statement indicates no essential requirement to transfer custody to the mother, is erroneous.

10.6 The findings recorded by the learned trial court are contrary to the legislative intent and objectives of the Act4. Furthermore, the learned appellate court erred in holding that the husband’s employment with the All India Railway Services, which entails frequent transfers and lack of permanent stationing at Lucknow, does not impact the child’s welfare. There exists a significant possibility that the husband may be posted to remote or interior locations in India, which could adversely affect the welfare and stability of the minor child. 6

10.7 The learned Magistrate as well as the learned appellate court erred in failing to adequately appreciate that the child’s grandmother is a patient of hypertension and diabetes, and is a stage-3 cancer survivor who requires regular medical follow-ups and continuous medication. Additionally, the child’s grandfather suffers from hypertension and type-2 diabetes and has experienced three episodes of cerebral haemorrhage. Consequently, household chores are managed by three male servants- Mr. Munna, Mr. Khepan, and Mr. Nitesh- provided by the Railways.

10.8 A factually incorrect finding has been recorded by the learned appellate court in observing that wife voluntarily left the matrimonial home. In truth, the husband deceitfully persuaded his wife to vacate the government accommodation, having gained her confidence. The custody of the minor child was then removed in a pre-planned manner under the guise of taking the child to a nearby mall, but instead, she was taken to the husband’s ancestral home in Gorakhpur. The learned trial court further erred in failing to consider a crucial piece of evidence- an SMS text message dated 26.10.2022, sent by the wife to the husband at 01:23 p.m., which clearly reads: “As you are insisting me, I am vacating this house at a very heavy heart as you are telling that you would be shifting to some other house. I will be carry[ing] my belongings i.e. clothes, books, and few daily need items. I would request you to physically present today, when I hand over the house to you. It would be highly appreciated if you reach here by 02:15 p.m.” This message evidences the fact that the wife vacated the premises under the husband’s insistence and not of her own volition.

10.9 The husband failed to reach at the government accommodation where both parties last resided together, despite the wife's prior request. Thereafter, the wife sent another SMS at 02:34 p.m. on the same day, stating: “Sumit, as it is already 2:30 p.m., since I have to 7 leave on urgent basis and there is no response from your side, I am leaving and giving the keys upstairs. Take care. Goodbye.”

10.10 This communication clearly demonstrates that the wife vacated the premises under compelling circumstances due to the husband’s insistence. Furthermore, the learned trial court failed to take into account another significant SMS sent by the wife on 11th November 2022, which reads:“I am constantly ringing on maa’s phone but she is not letting me talk to Kusha since 7–8 days and I am also messaging her but no response from her side. Kindly see so that I can talk to Kusha.”

10.11 This message underscores the mother’s continued efforts to stay in contact with the minor child and reflects the obstruction in communication imposed by the husband's family. The trial court’s failure to consider these communications amounts to a serious oversight.

10.12 The Google Maps timeline records dated 04.10.2022,

05.10.2022, 07.10.2022, and 25.10.2022 clearly establish that the wife was present in Lucknow during the relevant period. Furthermore, on

26.10.2022 at 02:34 p.m., she left for Delhi after vacating the government accommodation under compelled and distressing circumstances. Contrary to this factual position, the husband has made incorrect and misleading averments in his counter-affidavit, alleging that the wife voluntarily left the matrimonial home on 22.10.2022, abandoning the minor girl child without any cause or provocation and on 6.8.2022 the divorce petition filed under section 13-B of the Hindu Marriage Act, 1955. These false assertions made by the husband are clearly rebutted by objective digital evidence and contemporaneous communication. 8

10.13 The birth certificate of the minor child, issued by the Government of National Capital Territory of Delhi, establishes that the child was born at Artemis Hospital, Dwarka, New Delhi. Furthermore, the credit card statement of Shri Sajiv Kumar Sharma, the father of the wife, reflects that the entire medical expenses related to the childbirth were borne by him. Reliance is placed on the statement of account of the said credit card to substantiate this claim.

10.14 There is no female member in the husband’s household, except for the wife’s elderly and ailing mother-in-law, who herself is dependent on domestic help to manage her day-to-day activities. In such circumstances, she is not in a position to adequately care for a child who is at a tender and sensitive stage of puberty. At this crucial developmental phase, the child requires the care, guidance, and emotional support of a mother. It is a well-settled principle that the welfare of the child is of paramount importance in custody matters. While determining custody, due consideration must be given to the child’s overall well-being, including her comfort, emotional contentment, physical and mental health, education, intellectual development, and personal hygiene.

10.15 The husband has filed a divorce petition based on false averments stating that both parties have mutually agreed for mutual divorce under section 13-B of the Hindu Marriage Act, 1955, where the wife could only know about the divorce petition on receipt of the court notice. She next submits that the respondent- husband is a resourceful person and has been using his resources to frustrate the cause of justice.

10.16 Learned judge erroneously overlooked and misapplied the ratio decidendi established in; Devnath Ratre v. Malti Ratre7, Vivek Singh 7 (2022) SCC OnLine Chh 2721 9 v. Romani Singh8, Rohith Thammana Gowda v. State of Karnataka9. It is submitted that the learned trial court erred in distinguishing the judgments cited by the applicant on the ground that they pertain to the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956, and therefore, are not directly applicable to the issue of interim custody under Section 21 of the Protection of Women from Domestic Violence Act, 2005. This distinction is misplaced, as the central and overriding principle across all such statutes remains the same- the paramount consideration is the welfare and best interests of the child. Regardless of the specific legislation invoked, the consistent judicial approach has been to prioritize the child’s overall well-being while adjudicating custody matters.

10.17 The learned appellate court has erroneously overlooked the legal principles laid down in the judgments outlined herein; Vedabai alias Vaijayanatabai Baburao Patil v. Shantaram Baburao Patil and others10, Arun Ganguli v. Amresh Ganguli11, Dr. Parijat Vinod Kanetkar and others v. Mrs. Malika Parijat Kanetkar12, Kumar V. Jahgirdar v. Chethara Ramtheertha13, Balram v. Sushma14.

10.18 It is further emphasised that, while adjudicating the issue of interim custody, the paramount consideration must be the welfare of the child. The concept of welfare is comprehensive and must encompass the child’s physical, mental, emotional, psychological, and medical needs. However, the learned trial court failed to appropriately apply this principle to the facts and circumstances of the present case. Instead, it erroneously took a contrary view and concluded- without sufficient basis- that the child’s best interests would be best served in

trial court had granted liberty to the mother to meet her minor child twice a week, specifically on every Saturday and Sunday. Thereafter, by a subsequent order dated 09.10.2023, the conditions governing visitation were modified. The modified order permitted the mother to meet the child in a conducive and healthy environment, either at a nearby park or at the residence of the husband, between 04:00 p.m. to 06:00 p.m. on every Saturday and Sunday. 3 4 Hereinafter referred to as the “child” Protection of Women from Domestic Violence Act, 2005 3

6. Aggrieved by the aforesaid orders, the wife preferred Criminal Appeal No.107 of 2024 before the learned Additional Sessions Judge/ Special Judge (MP/MLA), Prayagraj. However, the said appeal was dismissed vide order dated 10.09.2024. While rejecting the appeal, the appellate court recorded a finding that the primary consideration in matters of custody is the welfare of the minor child, which, in the present case, was found to be better secured with the father. It was particularly noted that the minor child had expressed a clear desire to reside with her father, and therefore, it was held that custody with the father would be in the child’s best interest. Additionally, the appellate court observed that the child's paternal grandparents were residing with the father, thereby contributing to a stable and nurturing environment at the father’s residence.

7. The impugned order dated 10.09.2024 has been challenged by way of the present application, wherein the wife seeks custody of the minor female child.

8. During the course of the hearing, Ms. Vijeta Singh, learned counsel for the wife, and Mr. Chandan Sharma along with Mr. Shubham Tripathi, learned counsel for the husband, were heard at length. The husband appeared in person before the Court, whereas the wife participated through video conferencing, having been summoned on short notice.

9. Upon interacting with the parties, the Court found it appropriate to direct both parties to file their respective affidavits of assets and liabilities, in accordance with the guidelines laid down by the Supreme Court in Rajnesh v. Neha and Another5. This direction was necessitated by the emergence of the issue of maintenance during the course of arguments, particularly in the context of determining which parent would be better suited to financially support the minor child. In 5 (2021) 2 SCC 324 4 compliance with the Court’s direction, both parties submitted their respective affidavits along with written arguments. Additionally, a rejoinder affidavit was filed by the learned counsel for the wife, bringing certain additional facts on record in response to the averments made in the counter-affidavit submitted by the husband.

10. Ms. Vijeta Singh, learned counsel for the wife, submitted that the impugned orders have been passed without due consideration of the object and spirit of the Act4, which is enacted to ensure adequate protection of the rights of women guaranteed under the Constitution, particularly those who are victims of any form of violence occurring within the family, and to provide for matters connected therewith or incidental thereto. It was further contended that the orders were passed while ignoring material facts and evidence placed on record. In brief, the arguments addressed by learned counsel for the wife have been outlined herein:

10.1 She next argued that the statutory provisions with respect to custody of the minor child in the Act6 and directive principles enshrined in the Constitution, besides the U.N. Convention on the Rights of the Child (UNCRC) ratified by India in 1992, have not been considered objectively by the learned trial court.

10.2 The Constitutional Courts have consistently prioritized the child’s personal care, emotional support, and overall well-being, irrespective of the statutory provisions of the Act6, as has been reiterated in a catena of judgments.

10.3 A minor girl entering puberty undergoes a critical phase of development, marked by significant physical changes and emotional transformation. In light of these factors, the learned trial court has failed to adequately consider: (i) the safety, privacy, and emotional well-being of the female child; (ii) the mother’s vital role as caregiver 6 Hindu Minority and Guardianship Act, 1956 5 and confidante; (iii) the child’s comfort in discussing sensitive and personal matters; and (iv) the potential risk of trauma arising from an unsupportive or inappropriate environment.

10.4 Leading and intrusive questions were put forth by the learned judge, thereby placing an undue burden on the child to choose between her parents. The learned judge failed to appreciate that the primary objective was to ascertain the best interests of the child, rather than to determine fault or adjudicate a contest of blame between parents whose matrimonial relationship had already suffered significant personal hardships leading to their separation. The role of the judge in such matters is inquisitorial rather than adversarial. In addition to assessing the willingness of the parents to support the child’s education and financial needs, the learned judge ought also to evaluate their moral and psychological influence on the child’s upbringing.

10.5 The observation made in the impugned order dated 28.08.2023, stating that the child has not been subjected to domestic violence and that the child’s statement indicates no essential requirement to transfer custody to the mother, is erroneous.

10.6 The findings recorded by the learned trial court are contrary to the legislative intent and objectives of the Act4. Furthermore, the learned appellate court erred in holding that the husband’s employment with the All India Railway Services, which entails frequent transfers and lack of permanent stationing at Lucknow, does not impact the child’s welfare. There exists a significant possibility that the husband may be posted to remote or interior locations in India, which could adversely affect the welfare and stability of the minor child. 6

10.7 The learned Magistrate as well as the learned appellate court erred in failing to adequately appreciate that the child’s grandmother is a patient of hypertension and diabetes, and is a stage-3 cancer survivor who requires regular medical follow-ups and continuous medication. Additionally, the child’s grandfather suffers from hypertension and type-2 diabetes and has experienced three episodes of cerebral haemorrhage. Consequently, household chores are managed by three male servants- Mr. Munna, Mr. Khepan, and Mr. Nitesh- provided by the Railways.

10.8 A factually incorrect finding has been recorded by the learned appellate court in observing that wife voluntarily left the matrimonial home. In truth, the husband deceitfully persuaded his wife to vacate the government accommodation, having gained her confidence. The custody of the minor child was then removed in a pre-planned manner under the guise of taking the child to a nearby mall, but instead, she was taken to the husband’s ancestral home in Gorakhpur. The learned trial court further erred in failing to consider a crucial piece of evidence- an SMS text message dated 26.10.2022, sent by the wife to the husband at 01:23 p.m., which clearly reads: “As you are insisting me, I am vacating this house at a very heavy heart as you are telling that you would be shifting to some other house. I will be carry[ing] my belongings i.e. clothes, books, and few daily need items. I would request you to physically present today, when I hand over the house to you. It would be highly appreciated if you reach here by 02:15 p.m.” This message evidences the fact that the wife vacated the premises under the husband’s insistence and not of her own volition.

10.9 The husband failed to reach at the government accommodation where both parties last resided together, despite the wife's prior request. Thereafter, the wife sent another SMS at 02:34 p.m. on the same day, stating: “Sumit, as it is already 2:30 p.m., since I have to 7 leave on urgent basis and there is no response from your side, I am leaving and giving the keys upstairs. Take care. Goodbye.”

10.10 This communication clearly demonstrates that the wife vacated the premises under compelling circumstances due to the husband’s insistence. Furthermore, the learned trial court failed to take into account another significant SMS sent by the wife on 11th November 2022, which reads:“I am constantly ringing on maa’s phone but she is not letting me talk to Kusha since 7–8 days and I am also messaging her but no response from her side. Kindly see so that I can talk to Kusha.”

10.11 This message underscores the mother’s continued efforts to stay in contact with the minor child and reflects the obstruction in communication imposed by the husband's family. The trial court’s failure to consider these communications amounts to a serious oversight.

10.12 The Google Maps timeline records dated 04.10.2022,

05.10.2022, 07.10.2022, and 25.10.2022 clearly establish that the wife was present in Lucknow during the relevant period. Furthermore, on

26.10.2022 at 02:34 p.m., she left for Delhi after vacating the government accommodation under compelled and distressing circumstances. Contrary to this factual position, the husband has made incorrect and misleading averments in his counter-affidavit, alleging that the wife voluntarily left the matrimonial home on 22.10.2022, abandoning the minor girl child without any cause or provocation and on 6.8.2022 the divorce petition filed under section 13-B of the Hindu Marriage Act, 1955. These false assertions made by the husband are clearly rebutted by objective digital evidence and contemporaneous communication. 8

10.13 The birth certificate of the minor child, issued by the Government of National Capital Territory of Delhi, establishes that the child was born at Artemis Hospital, Dwarka, New Delhi. Furthermore, the credit card statement of Shri Sajiv Kumar Sharma, the father of the wife, reflects that the entire medical expenses related to the childbirth were borne by him. Reliance is placed on the statement of account of the said credit card to substantiate this claim.

10.14 There is no female member in the husband’s household, except for the wife’s elderly and ailing mother-in-law, who herself is dependent on domestic help to manage her day-to-day activities. In such circumstances, she is not in a position to adequately care for a child who is at a tender and sensitive stage of puberty. At this crucial developmental phase, the child requires the care, guidance, and emotional support of a mother. It is a well-settled principle that the welfare of the child is of paramount importance in custody matters. While determining custody, due consideration must be given to the child’s overall well-being, including her comfort, emotional contentment, physical and mental health, education, intellectual development, and personal hygiene.

10.15 The husband has filed a divorce petition based on false averments stating that both parties have mutually agreed for mutual divorce under section 13-B of the Hindu Marriage Act, 1955, where the wife could only know about the divorce petition on receipt of the court notice. She next submits that the respondent- husband is a resourceful person and has been using his resources to frustrate the cause of justice.

10.16 Learned judge erroneously overlooked and misapplied the ratio decidendi established in; Devnath Ratre v. Malti Ratre7, Vivek Singh 7 (2022) SCC OnLine Chh 2721 9 v. Romani Singh8, Rohith Thammana Gowda v. State of Karnataka9. It is submitted that the learned trial court erred in distinguishing the judgments cited by the applicant on the ground that they pertain to the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956, and therefore, are not directly applicable to the issue of interim custody under Section 21 of the Protection of Women from Domestic Violence Act, 2005. This distinction is misplaced, as the central and overriding principle across all such statutes remains the same- the paramount consideration is the welfare and best interests of the child. Regardless of the specific legislation invoked, the consistent judicial approach has been to prioritize the child’s overall well-being while adjudicating custody matters.

10.17 The learned appellate court has erroneously overlooked the legal principles laid down in the judgments outlined herein; Vedabai alias Vaijayanatabai Baburao Patil v. Shantaram Baburao Patil and others10, Arun Ganguli v. Amresh Ganguli11, Dr. Parijat Vinod Kanetkar and others v. Mrs. Malika Parijat Kanetkar12, Kumar V. Jahgirdar v. Chethara Ramtheertha13, Balram v. Sushma14.

10.18 It is further emphasised that, while adjudicating the issue of interim custody, the paramount consideration must be the welfare of the child. The concept of welfare is comprehensive and must encompass the child’s physical, mental, emotional, psychological, and medical needs. However, the learned trial court failed to appropriately apply this principle to the facts and circumstances of the present case. Instead, it erroneously took a contrary view and concluded- without sufficient basis- that the child’s best interests would be best served in