SONI KASHYAP @ LALLI KASHYAP Vs. PAWAN KASHYAP @ SONI

JUDGEMENT

(1.) Heard on admission.

(2.) Facts in brief required for disposal of the instant criminal revision are that the present applicant is the wife of respondent No. 1, Pawan Kashyap alias Soni. Out of their wedlock, a son namely Vashu Kashyap aged about 7 years and a girl child namely Ku. Shreyanshi Kashyap aged about 5 years were born. The Applicant had filed an application before the Judicial Magistrate, First Class, Bilaspur, Chhattisgarh under the provisions of Section 23 sub-section (2) read with Section 21 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter called "the Act, 2005") for custody of the children. The said JMFC Bilaspur, in MJC No. 135 of 2015, after hearing both the parties vide order dated 12-8-2015 under the provisions of Section 23(2) of the Act, 2005 granted interim custody of the children till final disposal of the said MJC and ordered that Shreyanshi Kashyap and Vashu Kashyap be handed over in the temporary custody of the mother i.e. the Applicant. The said Court further ordered that respondent No. 1, if he so wishes, may visit the children in the custody of the mother i.e. the Applicant. Being aggrieved by the said interim order, Respondent Nos. 1 to 3 had preferred Criminl Appeal No. 134 of 2015 before the First Additional Sessions Judge, Bilaspur, Chhattisgarh under the provisions of Section 29 of the Act, 2005 against the present Applicant and Respondent Nos. 4 and 5. After hearing both the parties, Learned Appellate Court allowed the appeal and set aside the interim order passed by the JMFC dated 12-8-2015 and held that the present Applicant/Respondent No.1 in the said criminal appeal, i.e. the mother may visit her children every day in the house of the present Respondent No. 1/Appellant in the said criminal appeal and further ordered that custody of the children be given to Respondent No. 1 herein till either of the parties may get an order under the provisions of the Guardians and Wards Act, 1890 (hereinafter called "the Act, 1890").

(3.) Against the aforesaid order, the present Applicant preferred the instant criminal revision challenging the illegality and impropriety of the order passed by the Appellate Court on the ground that the same is illegal and contrary to the facts, as well as against the well settled principles of law. Further grounds taken in the revision petition are that respondent No. 1 is behaving with the Applicant in a cruel manner as is evident from Annexure A/4; children being aged about 7 years and 5 years, respectively, it will be safe and proper that they be given in the custody of their mother; they will also get proper care and good atmosphere in the custody of the mother; Respondent No. 1 used to be in a drunken condition everyday and as such he is not taking proper care of the children. Respondent No. 1 used to go out for earning his livelihood and as such no other person responsible is left there to take care of the children. Further it is prayed that the appellate Court has not considered the matter properly and without considering the welfare of the children passed the illegal order which is not at all sustainable and liable to be set aside. Hence, it is prayed that the order passed by the appellate Court may be set aside and the order passed by the learned JMFC dated 12-8-2015 be restored in the interest of justice.