CSIL JESUDAS Vs. SANDHYA

JUDGEMENT

(1.) The short question that arises for consideration is, whether the Family Court can proceed with the petition for guardianship and custody of the minor child, when there is an interim order for custody passed by the Magistrate under Sec. 23(2) of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred as the 'D.V. Act').

(2.) The petitioner is the father of the minor children Bevin Cesil and Bryan Cesil and the respondent is their mother. The marriage between the petitioner and respondent was solemnised on 11/4/2007 and they were living together with their children at his house. During Onam vacation, in September 2019, the respondent went to her paternal house along with the children and never returned thereafter. She filed M.C No.100 of 2019 before the Judicial First Class Magistrate Court-V, Thiruvananthapuram and obtained protection order against the petitioner in which he was restrained from taking custody of the minor children. Meanwhile, she filed O.P No.374 of 2020 seeking a decree of divorce, and the petitioner filed O.P (G&W) No.2305 of 2020, for getting permanent custody of the children. During counseling, the respondent produced the order of the Magistrate, to show that the petitioner was restrained from taking custody of the children and so, according to her he cannot seek custody of the children before the Family Court. Apprehending that he may not get custody of the children because of Ext.P1 order of the Magistrate, he approached this Court with this petition for a clarification that, pendency of Ext.P1 order will not be a bar for granting custody of the children as per Ext.P3 O.P filed by him.

(3.) Sri.Umasankar, learned counsel appearing for the respondent vehemently opposed the petition saying that, without challenging Ext.P1 order of the Magistrate, the petitioner cannot seek custody of the children before the family court.