1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 739 OF 2009 Shaikh Fate Mohd. s/o Shaikh Haider age 38 years, occupation : service, R/o Pathri, Taluka Fulambri, Petitioner/ District Aurangabad. original non- applicant. versus Ruksana W/o Fate Mohd., age 35 yrs.occupation service, r/of C/o Firoz Khan Pathan, Respondent/ Jublee Park, Aurangabad. ori.applicant ------- Shri J.V.Deshpande, Advocte, for the petitioner. Shri P.V.Mandlik, Senior Counsel, instructed by Shri Amol Gandhi, Advocate for the Respondent. -------- Coram: P.R. Borkar J. Judgment reserved on : 11.11.2009. Judgment pronounced on: 16.11.2009. ORAL JUDGMENT 01. This criminal writ petition is filed by original Respondent-husband being aggrieved by the order passed by the learned Judicial Magistrate, First Class, 5th Court, Aurangabad on 26.6.2009 in Criminal Miscellaneous Application No.930 of 2008, directing the petitioner-husband herein to pay Rs.10,000/= as compensation to the Respondent- 2 wife. Learned Magistrate also directed the petitioner to hand over the custody of son Sahil to the Respondent. The proceedings were filed under the provisions of Protection of Woman (from Domestic Violence) Act, 2005 (hereinafter referred to as "Domestic Violence Act"). The said order is confirmed by the learned Additional Sessions Judge-4, Aurangabad in Criminal Appeal No.102 of 2009 decided on 29.7.2009. 02. Briefly stated, Respondent Ruksana Shaikh filed proceedings under the Domestic Violence Act, 2005 against the Petitioner. Marriage between the parties was performed on 25.5.1999 as per Muslim law. Both have been working as teachers since prior to marriage in different schools. After marriage, son Sahil and daughter Farhana were born. After birth of daughter, the petitioner and his relatives started ill-treating the Respondent. Petitioner-husband used to beat the Respondent on various counts, such as non fulfillment of demand of money by him and in spite of some payment, the ill-treatment did not stop. The petitioner even obtained signatures of the Respondent on withdrawal slips and withdrew amounts from her account and still she was residing with the petitioner. In October 2005, the petitioner and his relatives beat and drove out the Respondent and since then she has been residing with her parents. 3 03. On 12.4.2008, writ petitioner came to the Respondent and took away children for meeting their grand parents, however he did not return back the children in spite of request by Respondent. On 26.6.2008, the Respondent along with her father went to the petitioner and requested to return the custody of the children, the petitioner not only refused, but he beat Respondent and her father-who sustained bleeding injury and, therefore, complaint was lodged by her father with Wadod Bazaar Police Station on 26.6.2008 and also with Women Welfare Officer through whom custody of daughter was given the Respondent. Thereafter proceedings under the Domestic Violence Act were initiated. One of the prayers was to grant custody of son Sahil. 04. Writ petitioner appeared in the said proceedings and denied all allegations regarding demand of money, ill-treatment and beating to Respondent. He denied that any amount was withdrawn by him from the account of the Respondent. According to the petitioner, the respondent was properly treated, but she was not ready to reside in a remote area and she insisted the writ petitioner to reside at Aurangabad and, therefore, the Respondent voluntarily deserted the petitioner. It is also the case of writ petitioner that on 12.4.2008 the petitioner 4 voluntarily gave custody of children to him and thereafter children were with him and, therefore, application of the Respondent be dismissed. 05. The learned Judicial Magistrate, First Class, disbelieved the defence of the writ petitioner-husband and accepted the evidence led by Respondent-wife and passed order on 20.6.2009 awarding compensation of Rs.10,000/= to her. She also directed handing over custody of son Sahil to Respondent and maintenance of Rs.2000/= per month for children. That order was challenged by present petitioner in Criminal Appeal No.102 of 2009 and the appeal came to be dismissed by learned Additional Sessions Judge-4, Aurangabad on 29.7.2009 and it is this order which challenged in present writ petition. 06. Heard Shri J.V.Deshpande, learned counsel for the petitioner and Shri P.V.Mandlik, learned Senior Counsel instructed by Shri Amol Gandhi Advocate for the Respondent. Both the learned counsel have taken me through the judgment of the trial court, as well as Sessions Court and the entire record. 07. Shri J.V.Deshpande, learned Advocate for the petitioner argued that son Sahil when brought before the court refused to go to Respondent Ruksana and desire of Sahil was not considered. 5 However, it was argued before trial court that, the refusal was under pressure and due to tutoring and that the trial court, so also appellate court accepted the word of the Respondent. It is also argued before me that under Section 12 of the Domestic Violence Act, it was necessary that the application should be forwarded to the Protection Officer and not to the Judicial Magistrate, First Class. The report of the Protection Officer regarding domestic enquiry is required. He also submitted that son Sahil is taking education and was well looked-after. On the other hand, on behalf of Respondent, it is submitted by Shri PV.Mandlik, learned Senior Counsel, that the school progress card of Sahil for the academic year 2008-09 produced on record clearly indicates that Sahil was not attending the school regularly and there was clear negligence about his education and attendance in the school. The progress card shows that out of 230 days, Sahil had attended school only on 101 days in the academic year 2008-09. He passed the first standard with 66.67 per cent marks. There is also another school progress card of the academic year 2009-10 and attendance is relatively good. What appears from the school progress cards is that in 2008-09 there was absence due to negligence and not because of illness. 6 08. Apart from all this, evidence led on record by the Respondent-wife clearly indicated that on 12.4.2008 children were taken by the writ petitioner on the ground that the grand parents of the children wanted to meet them, but after such meeting, children were never returned back by the Petitioner, although they were given in his custody temporarily. On 25.6.2008 when the Respondent and her father had been to the writ petitioner for demanding custody of the children, the petitioner had beaten both of them. Evidence of the respondent-wife was accepted. 09. In this writ petition, mainly it is issue of custody of son Sahil which is seriously disputed and no other point was argued. It is submitted that though doctor is not examined, medical certificate is taken into consideration. It is also submitted that custody of the children was not given to the writ petitioner on temporary basis. 10. After perusing the record, in my opinion, adequate reasons are given by the trial court and the appellate court for passing the orders on 20.6.2009 and 29.7.2009 respectively regarding custody of Sahil. After considering the the documents on record it cannot be said that any error is committed by the courts below in passing the orders regarding custody of the son 7 Sahil. Ultimately parties will have to approach appropriate forum for getting permanent custody. In the facts and circumstances on record and having anxiously considered the submissions advanced on behalf of parties before me, I am of the opinion that this is not a case to interfere with the discretions used by the courts below, under extra-ordinary jurisdiction of this court. 11. In the result, writ petition is dismissed. pnd/CRIWP739.09 (P.R.BORKAR, J.)