• Regarding visitation rights for father under section 21 act of DV

Hello Team

My name is Amit and have dv case filed by my wife and currently looking to file application for regular child visitation under section dv act 21 and also my father is going medical treatment so for need to application for meeting with him along with me on regular basis like weekly or bi-weekly 

Therefore looking for citation on same and how to draft application on same , I am in delhi and its going in rohini court delhi 

Also have 498 and 406 , police has put everyone in coloumn 12 execpt me but still court has summoned my mother saying as "Specific allegation" right now have not recieved summon so wanted to know how i can challenge the same in higher court or what would be best remedy 

Also me and my wife had custody agreement 4 years back ion 08th-may-2020 in US and settled DV case files there where my wife agreed for weekend custody and it was written on agreement that "Without admission of any guilt or wrongdoing both the parties settle thier dispute on below conditions" 


Also , the court in which current DV case is running already given visitation in court for 2 hours one time for winter break in jan and now want periodic/ regular visitation for the same
Asked 2 months ago in Family Law
Religion: Hindu

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9 Answers

You should rely upon agreement entered into with wife wherein you were granted weekend custody 

 

make application in family court seeking joint custody of your child 

 

your lawyer will draft application seeking joint custody of child 

Ajay Sethi
Advocate, Mumbai
95215 Answers
7611 Consultations

5.0 on 5.0

Please contact an advocate. Drafting is an speialsied job and it should best be left to a specialist. 

Devajyoti Barman
Advocate, Kolkata
22920 Answers
498 Consultations

5.0 on 5.0

Dear Client,

Drafting an Application for Regular Child Visitation under DV Act Section 21:

  1. Begin by addressing the Presiding Officer or Judge in a respectful manner.
  2. Clearly state your intention to seek regular child visitation rights under Section 21 of the Domestic Violence Act.
  3. Provide relevant details about your relationship with your child, emphasizing your desire to maintain a meaningful relationship despite the ongoing legal proceedings.
  4. Explain how regular visitation would benefit the child's well-being and development.
  5. Include any supporting evidence or documentation, such as the custody agreement from the US court, to strengthen your case.
  6. Specify the frequency and duration of visitation you are seeking (e.g., weekly or bi-weekly visits).
  7. Conclude the application by expressing your willingness to comply with any conditions set by the court and your commitment to the child's best interests.

 

Drafting an Application for Meeting with Your Father:

  1. Similar to the child visitation application, address the Presiding Officer or Judge respectfully.
  2. Explain the circumstances necessitating regular meetings with your father, emphasizing his medical condition and the importance of your support.
  3. Request permission for weekly or bi-weekly visits with your father, specifying the duration and any conditions you are willing to abide by.
  4. Provide any medical documentation or evidence supporting the need for these visits, if available.
  5. Conclude by expressing your gratitude for the court's consideration and your commitment to fulfilling any requirements.

 

Challenging Summons Issued to Your Mother:

Once you receive the summons, carefully review the allegations against your mother. Consult with your advocate to assess the grounds for challenging the summons. If you believe the summons is unjustified or based on insufficient evidence, you can file an appeal or petition in the higher court.

Presenting Previous Custody Agreement from the US Court:

Include a copy of the custody agreement from the US court as evidence to support your request for regular child visitation. Highlight the terms of the agreement, including your wife's consent to weekend custody without admission of guilt or wrongdoing. Emphasize the importance of upholding the terms of the agreement to ensure the child's well-being and stability.

Referencing Previous Court-Granted Visitation:

Mention the court's previous decision to grant visitation during the winter break as evidence of your ongoing involvement in your child's life. Request the court to expand the visitation rights to include periodic or regular visits, citing the child's best interests and your commitment to fulfilling parental responsibilities.

Anik Miu
Advocate, Bangalore
9199 Answers
111 Consultations

4.7 on 5.0

You can file a child custody case under the provisions of guardians and wards act and seek for interim custody or visitation rights as an interim relief.

The interim custody granted by US court can be a precedent to seek interim custody or even visitation rights here in India, you may discuss with your advocate who will prepare the draft petition accommodating all your concerns in this regard and file it through your advocate

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

Hello Amit,

  1. You can file Criminal miscellaneous petition under section 21 of DVC.Act 2005 for claiming visitation right the court will decide the interim order but the proper remedy for the child custody is to approach the Family Court and file petition underTHE GUARDIANS AND WARDS ACT, 1890.
  2. As for as 498A and 406 I.P.C you can file quash petition before the Hon'ble High Court and requesting to dispense the attendance of your mother, Hon'ble High Court allows your petition then your mother need not have to appear before the court .
  3. You can file discharged petition before the concern court to discharge your mother.
  4. you have not mentioned the stage of the case whether it is crime stage or CC stage.
  5. you can submit your agreement copy along with the petition before the concern court

 

Mazher
Advocate, Hyderabad
66 Answers
7 Consultations

4.3 on 5.0

Bombay High Court

Payal Sudeep Laad Alias Payal Sharma vs Sudeep Govind Laad And Anr on 2 November, 2018

Equivalent citations: AIRONLINE 2018 BOM 1230

Author: Prakash D. Naik




 

 

the respondent no.1 filed an application for child access u/s 21 of DV Act on 20th December 2017. The matter was heard by the Trial Court and by order dated 5 th January 2018, the learned Magistrate partly allowed the application allowing access of Vihan to respondent no.1.

6. It is further submitted that the applicant then preferred an appeal before the Sessions Court which was heard at length. Both the sides were heard and case laws were tendered by both the parties. The Sessions Court was pleased to dismiss the appeal and . upheld the legality and validity of order dated 5 th January 2018 passed by the learned Magistrate. 

 

It is contended that since Section 21 does not provide any right to the husband to prefer such application, and since the legislature has not provided such right to the husband, except as stipulated in Section 21 of DV Act, the Court ought not to have entertained the application and granted relief as prayed by respondent no.1. If the interpretation advanced by the applicant is accepted, it would defeat the whole purpose of the statute. It is well settled principle of interpretation that Court must start with the presumption that legislature did not make a mistake and it must interpret so as to carry out the obvious intention of legislature and 18 of 34 APL.186.2018.doc that it must not correct or make up a deficiency nor the Court read into a provision any word which is not there particularly when literal reading does not lead to an intelligible result. The said proposition of law has been laid down in the case of Rajender Prashad Vs. Darshana Devi (2001)7-SCC-69. In the case of Nathidevi Vs. Radhadevi Gupta (2005)2-SCC-271, it was observed that in interpreting a statute, Court must, if the words are clear, plain, unambiguous and reasonable insusceptible to only one meaning, give to the words that meaning irrespective of the consequences.

12. In the present case, it is the grievance of the applicant that on 2nd December, 2017, on account of the circumstances referred to by her, the applicant had left the matrimonial home along with the child. The reliefs sought in the application enumerates the reliefs under Sections 18, 19, 20, 21, 22 and 23 of the said Act. The complaint also mentions that requisite orders under Section 21 with regards to the custody of the child are also sought. The said aspect is apparent from paragraph 5 of the complaint. The intent of the legislature as expressed under the proviso has to be taken into account keeping in view the aim and object of the Act. The application under Section 21 of the Act by the respondent could be made in the factual matrix of the present case. In the case of Smt. Hudidrom Ningol Ongbi (supra) relied upon by the counsel for the respondent the High Court of Manipur has observed that where there is no obscurity or ambiguity and intention of legislature is clearly conveyed, there is no scope for the Court to innovate or to take upon its task of amending or altering a statutory provisions which proposition of law has been laid down in several cases including in a case of Institute of Chartered Accounts of India Vs. Price Water 19 of 34 APL.186.2018.doc House and another - (1997)6-SCC-312. In that case it has been observed that the judges should not proclaim that they are playing the role of law makers merely for an exhibition of judicial valour. They should remember that there is a line though thin which separates adjudication from legislation. That line should not be crossed. This can be vouchsafed by an alert recognition of the necessity not to cross it and instinctive as well as trained reluctance to do so. However, where there appears to be obscurity, ambiguity, what the Court is supposed to do has been dealt with in the case of Grid Corporation of Orissa Limited Vs. And others. Eastern Matters Ferros Allous and others reported in (2011)11-SCC-334 wherein it has been observed that the golden rule of interpretation is that the words of the statute have to be read and understood in their natural, ordinary and popular sense. Where however, the words used are capable of bearing two or more constructions, it is necessary to adopt purposive construction, to identify the construction to be preferred by posing the following questions. (i) what is the purpose for which the provision is made; (ii) what was the position before making the provision; (iii) whether any of the constructions proposed would lead to an absurd result or would render any part of the provisions redundant; (iv) which of the interpretations will advance the object of the provision. The answer to these questions will enable the Court to identify the purposive interpretation to be preferred while excluding others. Such an exercise is involving ascertainment of the object of the provision and choosing the interpretation that will advance the object of the provision can be undertaken only where the language of the provision is capable of more than one construction. It is further observed that Section 21 is amenable to two interpretations as is being highlighted by the 20 of 34 APL.186.2018.doc parties, in such event only that interpretation which advanced the object of the provision can be accepted. It is worthwhile to note that the Act enacted to prevent the occurrence of domestic violence in the society and keeping in view that several protection orders including the safety of the aggrieved person and the child have been contemplated to be passed. Therefore, the cause of the safety of the aggrieved person or the child is always warrants to be taken into account in interpreting the provision. In such situation if the interpretation given on behalf of the wife aggrieved parties accepted it will render the provision incomplete as in case where wife - aggrieved party seeks custody of the child, if the child is in custody of the husband and an order of custody is passed in favour of the aggrieved party, visitation right can be granted to the husband. But if custody lies with the wife - aggrieved party, than the husband will have no remedy of visitation right if the interpretation as contemplated by the wife - aggrieved party is given effect to and thereby it can easily be said that interpretation given by the aggrieved party - wife will never advance the cause of the child. On the other hand, if it is held that the husband, in absence of any application for grant of custody can maintain his application for visitation right will advance the object of the provision as in case of child being in custody of the husband, application for custody can be filed by the wife wherein the husband can have visitation right if order is of custody of child passed in favour of the aggrieved party. In other situation, when the custody of the child lies with the wife, there would be no occasion for the wife for filing an application for custody. In that situation, husband will have remedy to have visitation right by filing application to that effect. The said interpretation and observations can be applied in the present case.

 

 

 In the case of Dipti Bhandari (supra), the apex Court has dealt with a situation wherein the complaint under the DV Act was filed by wife. The husband preferred an application u/s 21 of DV Act for visitation rights which was dismissed by the Family Court. The husband filed an appeal against the said order before the District Judge, which was also dismissed. The husband then preferred an application u/s 482 of Cr.P.C for quashing the charge sheet in FIR u/s 498A of IPC. The High Court stayed the said proceedings. The husband also preferred petition challenging the proceedings under the DV Act. The same was also stayed by the High Court. The Court requested both the parties to consider settlement of the matter. The High Court also passed orders allowing visitation rights to respondent no.1 husband in respect of minor child. The order dismissing application for visitation right was challenged before the appropriate Court. The application for visitation rights was allowed and the petitioner therein was directed to arrange for the meeting of the respondent no.1 with the petitioner and their minor daughter. The Apex Court in the said decision modified the said order and disposed off the petition. The contention of the counsel for the respondent is that while deciding the said petition, the Apex Court did not observe that the application preferred by the husband u/s 21 of DV Act is not maintainable.


 It was also observed that the application filed under Section 21 of the Domestic Violence Act seeking interim custody is maintainable before a Magistrate exercising jurisdiction in relation to area where family Court is established and the Magistrate has jurisdiction to decide such an application in accordance with law. Irresistible conclusion further would be that the application filed under Section 21 before the Court of Judicial Magistrate First Class Amravati in the instant case is tenable and impugned order cannot be assailed on the ground of want of jurisdiction.

20. For the reasons stated herein above, I do not find that the order passed by the Courts below suffers from any legal infirmity and petition is therefore devoid of merits and same deserves to be dismissed. Hence, I pass the following order.

Ajay Sethi
Advocate, Mumbai
95215 Answers
7611 Consultations

5.0 on 5.0

There are plethora of judgments granting visitation rights to father under section 21 of D V Act: to say a few:

1. HP state . Sandeep Kumar Thakur VS Madhubala - 02 Sep 16

2. Bombay High court - Payal Sudeep Laad @ Payal Sharma VS Sudeep Govind Laad - 02 Nov 18

3. Rajasthan High court -  VIKRAM BOTHRA VS NUPUR BOTHRA - 08 Jan 18

4. Delhi High court - Shilpa Singh VS Vikas Khanna - 13 Apr 22

6. Gujarat High court -  Anvarbhai Rasulbhai Sanghvani VS Mumtazben W/o Anvarbhai Sanghvani - 08 Dec 09

7. Delhi High court - Surjeet Singh VS State - 27 Apr 12

8. Delhi high court - AMIT KUMAR VS CHARU MAKIN - 28 Mar 17

If the court feels that there are specific allegations against the accused who have been removed from the list accused, then the court may implead them.

section 319(1)Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

- As per law, if the matter is contested between parties in US Court, and after due adjudication and trial, decree is granted, then it will be valid and binding in India. 

- If the said custody order was passed by on joint mutual petition after accepting that agreement then you can produce the said US order before the court in India 

- Further, if there is an FIR , then you all should take anticipatory bail from the session court 

- You can contact with a lawyer to move the said application before the court and also to file the reply in the DV case. 

 - Under section 21 of DV Act, 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.

- Hence, you can move an application under this section 21 before the family court for getting temporary custody 

- Further, your parents can approach the High Court for quashing the FIR lodged against them

Mohammed Shahzad
Advocate, Delhi
13541 Answers
201 Consultations

5.0 on 5.0

Dear Client,

Your father can file an application seeking visitation rights under Section 21 of the DV Act through his advocate. The application can outline the reasons why visitation rights should be granted and any evidence supporting his case. Since the cases are in the initial stages, it's essential to cooperate with your advocate. If your mother has been summoned due to specific allegations, your advocate should prepare a defense based on the facts of the case and present it in court during the hearings. It's crucial to provide all relevant information and evidence to your advocate to strengthen your defense. Mutual agreements regarding custody, including visitation rights, are essential for maintaining family relationships and ensuring the well-being of the child. While such agreements are not legally binding unless endorsed by the court, they provide a framework for parents to cooperate in raising their child post-separation or divorce.

Anik Miu
Advocate, Bangalore
9199 Answers
111 Consultations

4.7 on 5.0

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