maintainability of child visitation appliction in dv by a father: Manipur high court

IN THE HIGH COURT OF MANIPUR
AT IMPHAL
CRIL.REVN. PETITION NO.16 OF 2015
Smt. Huidrom Ningol Maibam Ongbi
Omila Devi, aged about 28 years, w/o
Inaobi Singh Maibam and presently
Residing at Khoyathing Pukhri Achouba
Mapal, Nagamapal Road, PO & PS
Imphal, Imphal West District,
Manipur–795001. ..Petitioner.
-VersusShri
Inaobi Singh Maibam, aged about
40 years, s/o Maibam Yaima Singh working
As Mobile Scientific Officer, Forensic
Science Laboratory, Pangei, Imphal East
District, PS Lamlai and having the permanent
Address at Tentha Khunjao Makha PO & PS
Wangjing, Thoubal District Manipur-795148.
..Respondent.
CRIL.REVN. PETITION NO.21 OF 2015

Shri Inaobi Singh Maibam, aged about
40 years, s/o Maibam Yaima Singh working
As Mobile Scientific Officer, Forensic
Science Laboratory, Pangei, Imphal East
District, PS Lamlai and having the permanent
Address at Tentha Khunjao Makha PO & PS
Wangjing, Thoubal District Manipur-795148.
..Petitioner.
-Versus-

Smt. Huidrom Ningol Maibam Ongbi
Omila Devi, aged about 28 years, w/o
Inaobi Singh Maibam and presently
Residing at Khoyathing Pukhri Achouba
Mapal, Nagamapal Road, PO & PS
Imphal, Imphal West District,
Manipur–795001. .
.Respondent.
BEFORE
HON’BLE THE CHIEF JUSTICE R R PRASAD
For the Petitioners :: Mr. M. Rarry, Advocate
For the Respondent :: Mr.T.Rajendra,
Mr.N.Samarjit,
Mr.E.Robindro, Advocates
Date of hearing :: 20.10.2016
Cril Rev Petn 16 & 21/15 Page 2
Date of judgment/order :: 26.10.2016.
JUDGEMENT & ORDER
Both the Revision Applications since arising out of a
common judgment and order dated 03.10.2015 passed by the then
Sessions Judge, Imphal East, were heard together and are being
disposed of by this common judgment.
[2] Before adverting to the submission advanced on behalf of
the parties, the facts of the case leading to filing of these two
applications are that when relationship in between the applicant namely
Huidrom(N) Maibam (O) Omila Devi, applicant before the court below,
and husband, Inaobi Singh Maibam, respondent became strained the
applicant left association of her husband and came to her parental
house along with her child. Thereafter the application filed a complaint
before the Judicial Magistrate, First class, Imphal East u/s 12 of the
Protection of Women Against from Domestic Violence Act,2005 with the
following prayers:
“a) An order restraining the appellant/respondent 1 and his men
and agents from committing any repeated act of domestic
violence against the respondent/complainant, the infant
Abungo Maibam and her relatives.
b) An order to forbid appellant/respondent 1 from making any
communication with the respondent/complainant or her
relatives.
c) An order to forbid the appellant/respondent 1 or his men or
agents or relatives to forcibly taking away of the infant
Abungo Maibam from the aggrieved
respondent/complainant.
d) An order of ad-interim maintenance of Rs.20,000/- only and a
separate residence for the respondent/complainant and the
infant.
e) An order directing appellant/respondent 1 to pay monthly
maintenance of Rs.20,000/- only in favour of the
respondent/complainant.”
f) An order directing O.C. Imphal Police Station for protection
of the respondent/complainant.
g) Pass any other order as the Hon’ble Court may deem fit
under the circumstances in favour of the
appellant/complainant.”

[3] On such application, the learned Magistrate passed an
interim order directing the respondent to pay a sum of Rs.6,000/- per
month as maintenance allowance to the applicant. During that period,
the respondent-husband’s request of visit to Child was never acceded
to and therefore husband-respondent filed a Criminal Misc.(DV) Case
No.5 of 2015 u/s 21 of the Protection of Women from Domestic
Cril Rev Petn 16 & 21/15 Page 3
Violence Act, 2005 (hereinafter to be referred to as Domestic Violence
Act) praying therein to grant visitation right to meet his minor son on all
holidays including Sundays from 10.30 AM to 2.30 PM. That application
was dismissed by the learned Magistrate on the ground that the
complainant wife has never filed an application u/s 21 of the Act for
custody of child nor any order on the point of grant of temporary
custody has been passed and thereby in absence of any order granting
temporary custody of the child u/s 21 of the Act, no direction for
visitation right to the appellant can be made.
[4] Being aggrieved with that order, the respondent-husband
preferred a Criminal Appeal bearing No.6 of 2015 before the Sessions
Judge, Imphal East. The contention which was made before the
learned Sessions Judge by the respondent-appellant is that the
husband being respondent against whom a number of reliefs have been
sought for including the relief of custody of the child though not directly
but indirectly can maintain his application under the proviso to Section
21 of the Domestic Violence Act for visitation right irrespective of the
fact whether the wife aggrieved person pursue the case relating to
custody of the child or not.
Contrary to it, the stand which was taken by the wife
aggrieved party is that any application in terms of the proviso to Section
21 of the Domestic Violence Act for visitation right cannot be maintained
in absence of any application by the aggrieved party in terms of Section
21 of the Act relating to custody of the child. Further stand which was
taken is that if the Court does hold that such application filed by the
husband-respondent under the proviso to Section 21 of the Domestic
Violence Act is maintained, it would amount to judicial legislation which
is never permissible. Thus, the question which fell for consideration
before the appellate court, which in fact was even framed, was that
whether in absence of any application being filed by the aggrieved
person u/s 21 of the Domestic Violence Act, any application filed by the
respondent-husband in terms of proviso to Section 21 of visitation right
can be maintained ?
[5] The learned Sessions Judge, having regard to all the facts
and circumstances of the case as well as the aforesaid provision as
contained in Section 21 came to the finding that said provision is
amenable to two interpretations and thereby the court can resort to
external aid in order to delve into the spirit and object of the statute. By
Cril Rev Petn 16 & 21/15 Page 4
applying such principle the court came to the conclusion that if the
interpretation given by the aggrieved party-wife is accepted, it would
defeat the whole purpose of the statute. In such situation, the court,
after observing that if the intent of the legislature as expressed under
the proviso is taken into account with the main provision keeping in view
the aim and object of the Act, it has to be held that application u/s 21 of
the Act by the respondent in absence of any application, seeking
custody of the child by the aggrieved party, can be made. Accordingly,
learned appellate Court, while setting aside the order passed by the
learned Magistrate, passed an order allowing the respondent-husband
of his visitation right for visiting the child on every 3rd Saturday at the
legal Clinic at Cheirap Court Complex from 2 PM to 4 PM.
[6] Being aggrieved with that part of the order whereby
visitation right has been allowed, the aggrieved party, wife, has filed
Criminal Revision No.16 of 2015 whereas the husband-respondent,
being aggrieved with the frequency of the visiting right given, has
preferred Criminal Revision No.21 of 2015.
[7] Heard Mr. M. Rarry, learned counsel for the petitioner, Mr.
T. Rajendra and also Mr. Samarjit, learned counsel appearing for the
respondent.
[8] Almost the same plea has been taken by both the parties
in support of their stand which had been taken by them before the
appellate court. Therefore, it need not be elaborated much. However,
the gist of the submission which was advanced by Mr. Rarry, learned
counsel appearing for the aggrieved party-wife, is that the learned
Sessions Judge, while dealing with the matter relating to visitation right,
has been pleased to hold that application filed under proviso to Rule 21
of the Domestic Violence Act can be maintained though it is evidently
clear from the provision that such application can be entertained only
upon filing of the application by the aggrieved party relating to the
custody of the child and thereby any such finding would amount to a
new legislation on the part of the court which is prohibited. It has been
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 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
Cril Rev Petn 16 & 21/15 Page 5
been laid down in the case of Rajinder Pershad (dead) by LRS vsDarshana
Devi(smt) reported in (2001)7 SCC 69 .
In this regard, it was also pointed that in interpreting a
statute court must, if the words are clear, plain, unambiguous and
reasonable susceptible to only one meaning, give to the words that
meaning irrespective of the consequences which proposition has been
laid down by the Hon’ble Supreme Court in the case of Nathi Devi vs.
Radha Devi Gupta reported in (2005) 2 SCC 271. Relying on the said
decision, it was submitted that if one reads the provision of Section 21
with its proviso, it would lead to only one conclusion that only in the
event of application being filed for custody by the aggrieved party, the
respondent-husband can maintain his application for visitation right and
in that event the appellate court committed a gross illegality in holding
otherwise.
[9] With regard to the issue, which has been raised by the
husband –respondent in his Criminal Revision Petition No.21 of 2015 , it
was submitted that court did pass order giving visitation right without
considering the entire facts and circumstances of the case and also
without considering the fact as to whether it would be in the interest of
the child which was of paramount importance and thereby that order is
fit to be set aside.
[10] As against this, Mr. T. Rajendra assisted by Mr. Samarjit
and Mr. E. Robindro, learned counsel submits that if the interpretation
which was advanced on behalf of the aggrieved party-wife is accepted,
it will render the provision as contained in Section 21 as incomplete as
in that event if the aggrieved party does not move an application for
custody of the child, the husband-respondent will have no remedy of
right to visitation which the Legislature, in his wisdom, may not have
intended to and thereby the appellate court was absolutely justified in
holding that the respondent can maintain his application for visitation
right even in absence of application being filed u/s 21 for the custody of
the child by the aggrieved party. Further, it was submitted that though
the respondent-husband has given right of visitation by the court
whereby the husband can visit his child once in a month which can
never be said to be adequate keeping in view the interest of the child.
And thereby frequency of visiting right should have been more and
under the circumstances the petitioner has moved to this Court for
Cril Rev Petn 16 & 21/15 Page 6
having an order whereby the respondent-husband be allowed to visit his
child more frequently.
In the context of the submission advanced on behalf of the
parties, one needs to take notice of the provision as contained in
Section 21 of the Domestic Violence Act which read as follows:
“21.Custody orders,- Notwithstanding anything contained
in any other law for 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.”
[11] On perusal of the provision, one would find that it does
stipulate that the Court at any stage of hearing the application for
protection order or any other order grant temporary custody of any child
to the aggrieved person. In that eventuality, Magistrate can pass order
relating to the visit of the respondent to the child. It be pointed out that
it is the case of the aggrieved party-wife that after she left association of
her husband, she came to her parents’ house along with the child and
therefore one of the reliefs which has been sought for in the application
u/s 12 of the Act is as follows:
“c) An order to forbid the appellant/respondent 1 or his men or
agents or relatives to forcibly taking away of the infant
Abungo Maibam from the aggrieved respondent/complainant.”
The aforesaid relief sought for sufficiently indicates the
custody of the child with the mother and hence there would not be any
necessity for the aggrieved party –wife to file an application for having
temporary custody of the child. In such event, if the application is filed
by the husband-respondent for having visitation right, it can never be
said to be one which is not in consonance with the provision as
contained in Section 21 of the Act as admittedly there had been
application for protection order and that the custody of the child is with
the aggrieved party.
[12] Apart from this factual aspect, if we delve into legal aspect
of it, as has been put forward on behalf of the parties, one can have two
interpretations as is being projected by the parties– one to the fact that
Cril Rev Petn 16 & 21/15 Page 7
in absence of any order relating to grant of temporary custody, one
cannot maintain application for visitation right and the other one is that it
can maintain application even in absence of such order being there.

[13] Thus, there appears to be ambiguity or obscurity. It be
stated that where there is no obscurity or ambiguity and intention of the
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 number of
cases including in a case of Institute of Chartered Accountants of
India Vs. Price Waterhouse and Anr reported in (1997)6 SCC 312 .
In that case, it has been further 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 a
case of Grid Corporation of Orissa Ltd & Ors vs. Eastern Metals
and Ferro Allows & Ors 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 involving ascertainment of the object of the
provision and choosing the interpretation that will advance the object of
Cril Rev Petn 16 & 21/15 Page 8
the provision can be undertaken only where the language of the
provision is capable of more than one construction.
[14] As I have already indicated that Section 21 is amenable to
two interpretations as is being highlighted by the 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 was 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 party is 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, then 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.
[15] 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 a 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 as
it has happened in the instant case. In that situation, husband will have
remedy to have visitation right by filing application to that effect. Under
the circumstances, I do find that the appellate court was quite justified
in holding that even in absence of application for custody being there,
by the aggrieved party, application of visitation right in terms of the
proviso to Rule 21 can be maintained. Thus, I do not find any merit in
the Criminal Revision Petition No.16 of 2015. Hence, it is dismissed.
[16] So far as the order relating to frequency of the visitation
right is concerned, it does appear that the Court, without taking into
Cril Rev Petn 16 & 21/15 Page 9
account the interest of the child and also other facts, has passed the
order and thereby the Court has committed illegality and hence that part
of the order giving visitation right in the manner indicated in the order is
set aside. However, the matter is remanded back to the concerned
Magistrate who, upon matter being agitated by either of the parties,
would be deciding the matter in accordance with law.
Accordingly, Cril. Revision Petition No.21 of 2015 stands
disposed of.
CHIEF JUSTICE
Joy
FR