KANUBHAI GIRIJASHANKAR PATHAK Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By this application under Article 227 of the Constitution of India, the applicants call in question the legality and validity of the order dated 13.11.2017 passed by the learned 5 th Addl. Sessions Judge, Kheda at Nadiad in the Criminal Appeal No.33 of 2017, by which, the Appellate Court dismissed the appeal filed by the applicants herein, thereby affirming the order passed by the Principal Judicial Magistrate, First Class, Kapadvanj dated 23.02.2017 below Exh.12 in the Criminal Misc. Application No.237 of 2016.

(2.) The facts giving rise to this petition may be summarized as under;

(3.) After going through the above statement of law, it is crystal-clear that an aggrieved person is entitled for interim custody of children. However, Section 23 of the D.V. Act specially provides that interim custody would be allowed if the Magistrate thinks just and proper. Thus, in this case, it is the opinion of this court that the learned JMFC has rightly allowed the visiting right of the respondent u/s. Section 23 of the D.V. Act. Section 21 is applicable when the court pass the final order after examining the report as well as both the parties. However, there is no such type of need while passing the order u/s. 23 of the D.V. Act. This court is also not convinced with the arguments of learned counsel that the present application was filed after six months of the main application with a simple reason that once the respondent moved an application u/s. 97 as argued by the learned. counsel for the appellant, it shows that she is interested for taking custody of the children. The law/judgment cited by the learned counsel for the appellant is also not applicable to this case because in the law/judgment (supra), the age of child is nearer to the majority but in this case the age of children is 9 and 11 yeans respectively. It is opinion of this court that at the age of 9 and 11 years, the children are easily convinced by either party. Thus, the arguments of the learned counsel on the point that the children has refused to go with the respondent is without any legal force. In this case, the Magistrate allowed only an interim visiting right and main application is still pending' before the learned. Magistrate. This court is of the opinion that it is yet to be decided that who is entitled for the custody. She is a mother of the children. Admittedly, there are other litigations 'which are going on. It is well settled that a custody of the children is decided only on the parameter of the welfare of the children but at this stage the interim visiting' right. has been granted which is just and proper as per the facts and circumstances of the case. Thus, the arguments of learned counsel for the appellants are without force. Therefore, after going through the impugned order, this court do not find any error in the front of facts or law. There is no need to interfere in the order under challenge at this stage. Hence, this court pass following order.