1 Ejaz Ali & Anr. vs. Smt.Asfa Banu & Anr. S.B.Cri. Revision Petition No.1179/2008 Date of Order : 03.12.2008 HON'BLE MR. MANAK MOHTA, J. Mr.P.R.Mehta ] for the petitioners. Mr.Mrinmay Bhattmewara ] Mr.Sandeep Mehta for respondent No.1. Mr.L.R.Upadhyaya , Public Prosecutor. Heard. This revision petition has been filed against the impugned judgment and order dated 17.10.08 passed by the learned Addl.Sessions Judge No.3, Udaipur, by which the learned Judge has confirmed the order passed by the Addl.Chief Judicial Magistrate No.2 Udaipur dated 29.09.08 in criminal case No.461/08 whereby he dismissed the appeal filed by the present petitioners. The brief facts of the case which are relevant for the disposal of this revision are that respondent No.1 applicant Smt.Asfa Banu w/o Mehandi Hassan Tobwala filed a petition under section 21 read with section 23(1)(2) of Protection of 2 Women from Domestic Violence Act 2005 ( hereinafter referred to as 'the Act') for the custody of her son Ismael. She had submitted in her application that she was married to Mehandi Hassan on 07.04.05 and her son is in the custody of her husband. It is further stated in the application that applicant No.1 is her husband and petitioner No.2 and 3 are her father -in-law and mother -in law . A joint prayer was made against all the three non-petitioners. The learned Magistrate by the impugned order dated 29.09.08, after hearing both the parties passed an order under section 21 of the Act that petitioner is entitled to keep her son Ismael in her custody and for that non-petitioners were directed to hand over the custody. Against that order, non- applicants, including the present petitioners, filed an appeal before the Addl.Sessions No.3, Udaipur . The learned Addl.Sessions Judge, Udaipur after hearing both the parties, vide order dated 17.10.08 confirmed the said order passed by the Magistrate, against that the present revision petition has been filed by the father in-law and mother-inlaw Ejaz Ali and Salma Banu. 3 Notice of this revision petition was given to respondent , including applicant Asfa Banu . Record of the lower court was called, arguments were heard. During the course of arguments, learned counsel for the petitioners stated that the present petitioners are no more concerned with forcibly taking of the child Ismael. The applicant in her original application no where stated that the present petitioners are keeping the child with them. All allegations are against the husband that on 13.08.08, he with his friends, forcibly has taken the child. Despite that the learned lower court, as well as the learned appellate court, has passed severe order against the petitioners to hand over the child to the respondent. Further it is stated that under the execution of these orders, vide order dated 10.10.08 warrant of arrest have been issued. In these circumstances, a further request was made that both the orders are liable to be quashed and prayed the revision petition may be allowed. Both the courts below, have passed order without thoroughly considering the contentions placed by the present petitioners 4 before the lower court. The learned counsel appearing on behalf of respondent No.1 frankly admitted that there is no specific allegations against the present petitioners. Learned counsel submitted that the present petitioners are the father in-law and mother- inlaw of respondent No.1 Asfa Banu. Mehandi Hassan is their son, therefore, after considering the facts and circumstances of the case, the learned trial court as well as the appellate court, passed the order. The learned Public Prosecutor was also heard. After considering the rival contentions placed by both the side, and after perusal of record, specially the original application filed by the respondent applicant for production of child, I have come to the conclusion that no specific averment is made against the present petitioners of snatching the child or forcibly keeping the child with them. It is also nowhere stated that the child is in custody of petitioners. Both the learned lower courts have not thoroughly considered the contentions placed by the present petitioners and passed erroneous order 5 to produce the child and in consequence of that order, coercive order has order has issued. Considering all facts and circumstances of the case, I deem it proper to quash the order qua the present petitioners. The applicant is free to take action against her husband but so far as the execution of the order against the present petitioners is concerned that is liable to be quashed. On the basis of aforesaid discussion, the revision is allowed and the order impugned dated 29.09.08 and the confirming order dated 17.10.08 are hereby quashed. The observations made in this order will not effect the pending proceedings against non-applicant No.1 Mehandi Hassan. No order as to costs. (MANAK MOHTA), J. l.george