Denying custody to mom is domestic violence: High Court

NAGPUR: Nagpur bench of Bombay High Court ruled that denying kid's custody to mother amounts to domestic violence.

The court rejected Mumbai-based husband's plea that challenged Amravati JMFC's verdict of October 10, 2015, granting interim custody of a prematurely born baby to his mother in the case of domestic violence filed by her against in-laws.

"Any denial of interim custody to mother would result in harming her mental health and thus, cause domestic violence," justice Sunil Shukre held.

The couple was married on February 18, 2014, however, marital discord soon started between them.

She gave birth to a baby boy in her seventh month of pregnancy on October 25, 2014. Her in-laws allegedly didn't allow her to touch the baby. She was further subjected mental harassment that forced her to move to her parental home in Amravati. She then filed a case under 'Protection of Women from Domestic Violence (DV) Act, 2005' where she filed an application for the child's interim custody.

Petitioner's counsel Shyam Dewani contended that the woman wasn't ready for pregnancy, treated the baby inhumanely, and was unable to breastfeed him due to lack of lactation. He stressed that proper treatment for the child was available only in Mumbai. He also questioned JMFC's jurisdiction to pass interim custody order under Section 21 of DV Act contending that the dispute was already pending in the family court.

Wife's counsel RS Sirpurkar argued that Section 26 of DV Act makes it clear that reliefs under Sections 18,19,20,21 and 22 may also be sought in any legal proceedings before a civil, family or criminal courts. Family Court will have no exclusive jurisdiction to decide the kind of application of kid's interim custody, she said.

Justice Shukre clarified that the application under Section 21 seeking kid's interim custody is maintainable before a magistrate exercising jurisdiction in relation to an area where family court is established and the judge has jurisdiction to decide it.

"There is no connection between lack of lactation and motherly attachment to one's own baby. By seeking child's custody, wife has shown that she is concerned about his welfare and desirous of giving him love. The baby is so small that his being with mother would only help him grow and develop," he said, while denying husband's claims of not getting quality treatment in Amravati.

The judge clarified that custody order by it's very nature being temporary, is amenable to change or modification, if it's necessitated by the change of circumstances.

Source : http://m.timesofindia.com/city/nagpur/denying-custody-to-mom-is-domestic-violence-hc/articleshow/56766849.cms

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