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Judgment
I.A. No.10012 of 2026
Heard the parties.
This interlocutory application has been filed with the prayer for early hearing of this criminal miscellaneous petition.
Since, hearing of this criminal miscellaneous petition is taken up today, hence, this interlocutory application is disposed of being infructuous.
Cr.M.P. No. 537 of 2026
Heard the parties.
Though notice has validly been served upon the opposite party no.2 yet no one turns up on behalf of the opposite party no.2 in-spite of repeated calls.
This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 528 of B.N.S.S., 2023 with the prayer to quash/set aside the order dated 09.12.2025 passed by the learned Additional Family Court-II at Ranchi in O.M. Case No. 511 of 2024 whereby and where under, learned Additional Family Court-II, Ranchi has rejected the petition filed under Section 26 read with Section 21 and 23 of the Protection of Women from Domestic Violence Act, 2005 dated 23.08.2025 for custody of minor child and interim relief, in the said proceeding which was initiated by her under Section 144 of B.N.S.S., 2023, on the ground that the case is at the initial stage and the issue as to whether the welfare of child is best suited if her custody is given to the petitioner or not can only be decided after proper adjudication.
It is submitted by the learned counsel for the petitioner by relying upon the judgment of the Hon’ble Supreme Court of India in the case of Vaishali Abhimanyu Joshi vs. Nanasaheb Gopal Joshi dated 09.05.2017 in Civil Appeal No. 6448 of 2017 arising out of SLP (C) No.24045 of 2016 wherein, the question before the Hon’ble Supreme Court of India was as to whether counter claim by the appellant in that case seeking right under Section 19 of Protection of Women from Domestic Violence Act, 2005 can be entertained in a suit filed against her under Section 26 of the Provincial Small Cause Courts Act, 1887 seeking mandatory injunction directing her to stop using the suit flat and to remove her belongings therefrom and the same was answered by the Hon’ble Supreme Court of India by holding that the claim can be filed by the appellant in Civil Suit No. 77 of 2013 is maintainable by the Judge, Small Cause Court and needs to be considered in accordance with law.
It is next submitted by the learned counsel for the petitioner that the opposite party no.2 has forcibly taken the daughter of the petitioner of whom the opposite party no.2 is the father and as the opposite party no.2 has to remain outside his house in connection with his work, the minor child lives with her grandparents most of the time, who do not take proper care of her and though she has already become four years old in December, 2025 but she has not been admitted in any school; whereas the petitioner being a well-educated lady can raise the child with love, care and emotional support. It is further submitted by the learned counsel for the petitioner that the petitioner being the biological mother and natural guardian of the child in question, the welfare of the child is best suited if the custody of the child is given to the petitioner. It is then submitted by the learned counsel for the petitioner that the learned Additional Family Court-II, Ranchi instead of passing any order on the merits of the petition has rejected the same only on the ground that the case is at the initial stage and adjudication is required to determine the issue regarding the welfare of the child; therefore the impugned order is not sustainable in law. Hence, the same be quashed and set aside.
Learned Spl. P.P. on the other hand vehemently opposes the prayer of the petitioner made in this criminal miscellaneous petition and submits that no illegality has been committed by the learned Additional Family Court-II, Ranchi. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed.
Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to refer to paragraph no.36 of the judgment of Hon’ble Supreme Court of India in the case of Vaishali Abhimanyu Joshi vs. Nanasaheb Gopal Joshi (supra) which reads as under:-
“36.Section 26 of the Act, 2005 has to be interpreted in a manner to effectuate the very purpose and object of the Act. Unless the determination of claim by an aggrieved person seeking any order as contemplated by Act, 2005 is expressly barred from consideration by a civil court, this Court shall be loath to read in bar in consideration of any such claim in any legal proceeding before the civil court. When the proceeding initiated by plaintiff in the Judge, Small Causes Court alleged termination of gratuitous licence of the appellant and prays for restraining the appellant from using the suit flat and permit the plaintiff to enter and use the flat, the right of residence as claimed by the appellant is inter connected with such determination and refusal of consideration of claim of the appellant as raised in her counter claim shall be nothing but denying consideration of claim as contemplated by Section 26 of the Act, 2005 which shall lead to multiplicity of proceeding, which cannot be the object and purpose of Act, 2005.”
Section 26 of Protection of Women from Domestic Violence Act, 2005 which reads as under :-
“26. Relief in other suits and legal proceedings.—
(1)Any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.
(2)Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.
(3)In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.”
envisages that any relief available inter alia under Sections 21 and 23 of the said Act may also be sought in any legal proceeding, before inter alia any family court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.
Section 21 of Protection of Women from Domestic Violence Act, 2005 which reads as under :-
“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.”
provides for the relief regarding passing of protection order and also temporary custody of the child to the aggrieved person and also passing orders for exercising visiting rights.
Section 23 of said Act which reads as under :-
“23. Power to grant interim and ex parte orders.—
(1)In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.
(2)If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under Section 18, Section 19, Section 20, Section 21 or, as the case may be, Section 22 against the respondent.”
empowers the court concerned to pass such interim order as may be deem just and proper.
So, in view of the scheme of Section 26 of Protection of Women from Domestic Violence Act, 2005, this Court is of the considered view that the Additional Family Court-II, Ranchi was vested with the jurisdiction to entertain the application under Section 26 read with Section 21 and 23 of Protection of Women from Domestic Violence Act, 2005. Now since, the petition has been filed under Section 26 read with Section 21 and 23 of Protection of Women from Domestic Violence Act, 2005 by the petitioner so it was incumbent upon the learned Additional Family Court-II, Ranchi to dispose of the same on its own merit; because Section 21 of Protection of Women from Domestic Violence Act, 2005 empowers the court concerned to exercise the said power at any stage of the hearing of the application and Section 23 of the said Act empowers the court to pass even interim orders.
Under such circumstances, this Court has no hesitation in holding that the learned Additional Family Court-II, Ranchi has committed a grave illegality by rejecting the petition filed under Section 26 read with Section 21 and 23 of Protection of Women from Domestic Violence Act, 2005 on the ground that the case is at the initial stage and that the issue of welfare of the child can be decided after proper adjudication, without going into the merits of the claim of the petition.
Accordingly, the order dated 09.12.2025 passed by the learned Additional Family Court-II at Ranchi in O.M. Case No. 511 of 2024 is quashed and set aside.
The learned Additional Family Court-II, Ranchi is directed to pass a fresh order on the said application filed under Section 26 read with Section 21 and 23 of Protection of Women from Domestic Violence Act, 2005 dated 23.08.2025 filed by the petitioner for custody of minor child and interim relief on its own merit after giving reasonable opportunity of being heard to the parties of the case.
In the result, this criminal miscellaneous petition is allowed to the aforesaid extent only.