HARSH Vs. KOMAL @ PRIYANKA

JUDGEMENT

(1.) This revision petition has been preferred against the order dated 21.06.2014 passed by the learned Additional Sessions Judge, No.2, Jodhpur Metropolitan in Criminal Appeal No.57/2013 reversing the order dated 08.10.2013 passed by the learned Additional Chief Judicial Magistrate, No.4, Jodhpur in Criminal Misc. Case No.115/2013, whereby the application filed by the respondent-wife under the Protection of Women from Domestic Violence Act, 2005 seeking custody of child was dismissed.

(2.) The brief facts of the case are that respondentwife, after leaving her matrimonial house and three years' old child came to Jodhpur and thereafter filed a case under Section 498A, 406, 323, 376/511, 313 and 315 IPC against the petitioner. The child Krishna Parihar was residing with the petitioner-father and was studying at Udaipur. Thereafter, the respondent-wife filed an application seeking custody of the child under the provisions of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'the Act of 2005'). The said application was dismissed by the learned trial court vide order dated 08.12.2013 on the ground that the child has been studying in Udaipur and since his financial condition is better he could very well take care of the child. The respondentwife, thereafter, moved another application seeking custody of the child alleging that the circumstances have now changed and the session of the school in which he was studying has ended and hence the child can be shifted to Jodhpur and can be given admission in a good school at Jodhpur. This application was also dismissed by the learned trial court vide order dated 13.05.2014. Though the order dated 08.10.2013 stood merged in the order dated 13.05.2104, but the respondent-wife filed appeal against the order dated 08.10.2103 under Section 29 of the Act of 2005. The learned appellate court allowed the appeal vide order dated 21.06.2014 and gave the custody of the child to the respondent-wife. Hence, this revision petition. I have heard the learned counsel for the parties and perused the material available on the record.

(3.) The main contention of the learned counsel for the petitioner is that where the Family Court has been established, then under the Family Courts Act,1984 (hereinafter referred to as 'the Act of 1984'), the learned trial court or the lower appellate court has no power to give the custody of the child in the proceedings initiated under the provisions of Section 21 of the Act of 2005 as the Family Court has been conferred exclusive jurisdiction in this regard and placed reliance upon the judgment of this court in Payal Agarwal (Smt.) Vs. Kunal Agarwal,2014 1 RAF(Raj) 415 .