SHAM Vs. SAU. YOGITA

JUDGEMENT

(1.) Heard learned counsel for the Petitioners, learned counsel for Respondent No.1 and learned A.P.P. for Respondent No.2. Rule. Rule made returnable forthwith and heard finally with the consent of the parties.

(2.) In this matter the Respondent No. 1 - wife had filed proceedings under the Protection of Women from Domestic Violence Act, 2005 (for short "Domestic Violence Act") bearing Criminal Misc. Application No.563 of 2011 before Judicial Magistrate, First Class, Jalgaon under Section 18, 20, 22 of the Domestic Violence Act. The Judgment came to be passed by the Magistrate partly in favour of Respondent No.1 wife. The Petitioner No. 1 who is husband of Respondent No.1 was directed that till the children attain age of majority, (who were stated to be of 7 and 1/2 years and 4 and 1/2 years of age at the time of filing Application) should be left with Respondent No.1 wife in summer holidays. Further order regarding maintenance was also passed. It appears that Criminal Appeal No.59 of 2013 has been filed by present Petitioners before the District Court, Jalgaon and is pending. Petitioner No.1 - husband filed application in Criminal Appeal seeking stay to the execution of orders passed by the Magistrate. The District Judge, considered the arguments and observed that mother being natural guardian of her children, she cannot be denied with such visiting rights and rejected the application for stay.

(3.) Learned counsel for Petitioners submitted that under Section 19 and 20 of the Domestic Violence Act specific words used are as to what orders could be passed while disposing of the application under sub -section (1) of Section 12 of the Domestic Violence Act, while in Section 21 of the Domestic Violence Act dealing with temporary custody orders of children the wordings are different and the same could be passed at any stage of hearing of the application. According to the counsel, it does not include passing of orders at the conclusion of hearing. Relying on the case of Wasudeorao Babasaheb Sonone and another vs. Jagannath Ramlalji Jugele, 1985 MhLJ 565, it was submitted that there is difference between closing of hearing and stage of Judgment. It was argued that Section 21 of the Domestic Violence Act did not contemplate custody orders at the end of the hearing. Thus, he submitted that trial Court Orders were required to be stayed.