Arvinder Pal Singh vs State of Uttarakhand

Umesh Chandra Dhyani, J.—Learned counsel for the respondent no. 2 seeks and is allowed two weeks'' time to file counter affidavit.

Heard learned counsel for the parties and perused the judgment under appeal for the purpose of deciding interim stay application.

The child is admittedly below five years of age. According to Section 6 of Hindu Minority and Guardianship Act, 1956, the natural guardians of a Hindu minor, in respect of the minor''s person as well as in respect of the minor''s property are-in the case of a boy or an unmarried girl-the father and after him the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. The entire text of Section 6 is being reproduced herein below for reference:

"6. Natural guardians of a Hindu minor.-The natural guardians of a Hindu minor, in respect of the minor''s person as well as in respect of the minor''s property (excluding his or her undivided interest in joint family), are-

(a) in the case of a boy or an unmarried girl-the father, and after him, the mother:

Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father;

(c) in the case of a married girl-the husband:

Provided that no person shall be entitled to act as the natural guardian o a minor under the provisions of this section-

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

Explanation-In this section, the expressions "father" and "mother" do not include a stepfather and a stepmother."

Further, it will also be worthwhile to reproduce Section 21 of the Protection of Women from Domestic Violence, 2005 herein below:

"21. Custody orders.-Notwithstanding anything contained in any other law for the time being in force, the Magistrate may at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent:"

Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit."

Thus, it is clear that the impugned order could have been passed by learned Magistrate, as also by learned Sessions Judge in Appeal, while considering the temporary custody of a child under the Act of 2005.

The appeal preferred on behalf of the father of child is still pending adjudication before learned Sessions Judge, Dehradun and the next date fixed in the appeal is 22.09.2014.

Presently, an application u/s 482 Cr.P.C. has been filed by the father being aggrieved against an interim order in appeal. There appears to be no illegality in the same. There is no good ground to stay the operation of the same. No interference is, therefore, called for in the impugned order passed by learned Sessions Judge, Dehradun, on 21.08.2014, at this stage.