Akshay Vijay Chaudhari and Others Vs Tejal Akshay Chaudhari — Domestic Violence | Bombay HC (2025)

Akshay Vijay Chaudhari and Others Vs Tejal Akshay Chaudhari — Domestic Violence | Bombay HC (2025)

What the court decided

AI extract

Outcome

Dismissed

Issue for consideration

Whether the ex parte interim order granting custody of the 22-month-old child to the mother is illegal because the applicants, in whose custody the child had been left, were not heard or given an opportunity to file their say. +1 more

Court's answer

In terms of Section 6(a) of the Hindu Minority and Guardianship Act, 1956, the custody of a child below 5 years shall ordinarily be with the mother; with prima facie findings by the Magistrate of domestic violence against the mother, the interim custody of the 22-month-old child was properly directed to be handed over to her.

Ratio / Principle

Merely because the mother has suffered amputation of right hand arm, it cannot be said that she is incapable of taking care of the child; indeed, nothing is shown establishing why the respondent-wife is incapable of caring for the child.

Key takeaways

There is no error in the orders passed by both the Courts below (the JMFC, Raver and the Sessions Court).ratio¶24

Detailed headnote1 paragraphs

Criminal Revision Application (Bombay High Court, Aurangabad Bench; Arun R. Pedneker, J.; decided 04.04.2025) - DISMISSED. The applicants (husband and his parental family) challenged the ex parte interim order dated 09.09.2024 of the JMFC, Raver, below Exh.06 in P.W.D.V. Application No.89/2024 under the Domestic Violence Act, granting the mother temporary custody of her 22-month-old son, and its confirmation by the Sessions Court on 06.03.2025. Background facts: marriage solemnised 04.06.2021; male child born 06.11.2022; child kept with the applicants from 06.04.2024; respondent-wife residing with her parents. Held: (i) under Section 6(a) of the Hindu Minority and Guardianship Act, 1956, custody of a child below 5 years shall ordinarily be with the mother; (ii) merely because the mother suffered amputation of right hand arm, it cannot be said she is incapable of taking care of the child, and no incapacity of the respondent-wife was shown; (iii) prima facie findings of domestic violence against the mother stood rendered by the Magistrate; no error was found in the orders of both courts below. The applicants' grievance that they ought to have been heard and allowed to file their say before the ex parte custody order did not result in any finding of illegality; the revision application was accordingly dismissed. Counsel's reliance on Marotrao Shamrao Pachare v. Usha Marotrao Pachare (2003 LJSoft (BOM) 972) regarding wrongful confinement was noted but not engaged with by this court.

2025:BHC-AUG:9916

1

109.25REVN

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

907 CRIMINAL REVISION APPLN. NO. 109 OF 2025

1] Akshay s/o. Vijay Chaudhari Age : 30 years, Occ. Pvt. Service.

2] Vijay s/o. Eknath Chaudhari Age : 60 years, Occ. Pensioner.

3] Savita w/o. Vijay Chaudhari, Age : 55 years, Occ. Housewife.

4] Gaurav s/o. Vijay Chaudhari, Age: 27 years, Occ. Service.

All R/o. “Muktai Nagar”, Tq.Muktainagar, Dist. Jalgaon.

.. APPLICANTS VERSUS

Mrs. Tejal w/o. Akshay Chaudhari, Age : 23 Years, Occ. : Housewife, R/o. C/o. Ramesh Raghunath Mahajan, R/o. Kerhale (Bk), Tq.Raver, Dist. Jalgaon. .. RESPONDENT

... Advocate for Applicants : Mr.B.R.Kedar

… CORAM : ARUN R. PEDNEKER, J. DATE : 04.04.2025

P.C. :

1] By the present Revision Application, the applicants challenge the exparte order passed by the

2

109.25REVN

Judicial Magistrate First Class, Raver, dated 0909.2024 below Exh.06 in P.W.D.V. Application No.89/2024, whereby ex parte order is passed by the Magistrate under the Domestic Violence Act [for short ‘D.V.Act’] to grant temporary custody of a child of one year ten months to the mother and order dated 06.03.202025 passed by the Appellate court i.e. Sessions Court confirming the order passed by the Judicial Magistrate First Class.

2] The learned counsel for the applicants submits that the mother had left the child in custody of the applicants while she was taking treatment, as such, the applicants ought to have heard before granting custody of child to the mother and the applicants ought to have given opportunity to file say, therefore, the ex parte order granting interim custody of the child aged 22 months is illegal. The learned counsel for the applicants relies upon the judgment in the case of Marotrao Shamrao Pachare & others Vs. Usha Marotrao Pachare reported in 2003 LJSoft (BOM) 972 and submits that when the child is left in custody of the father and the child is not taken by physical force, it cannot be said that the offence of wrongful confinement is made against the father. He further submits that the respondent is not physically and mentally fit to take care of the child.

3

109.25REVN

3] It is to be noticed that the marriage between the applicant no.1 and respondent was solemnized on 04.06.2021 and the male child is born on 06.11.2022. The applicant has submitted that child was kept in custody of the applicants from 06.04.2024. The respondent – wife is residing with her parents. It is not shown why the wife respondent is incapable of taking care of child. Merely because the mother has suffered amputation of right hand arm it cannot be said that she is incapable of taking care of the child.

4] Prima facie the findings are rendered by the Magistrate that there is a domestic violence against the mother and that the interim custody of the child of 22 months [now 2 years 4 months approximately] is directed to be handed over to the mother. In terms of Section 6 (a) of the Hindu Minority and Guardianship Act, 1956, the custody of a child below 5 years shall ordinarily be with the mother. I see no error in the orders passed by both the Courts below. Considering the same, the present revision application is dismissed.

JUDGE

DDC