Allahabad High Court Upholds Magistrate's Power To Grant Interim Child Custody Under DV Act, Says It Overrides Family Courts Act"

"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..." Allahabad High Court, in a significant ruling, affirmed that a Magistrate acting under the Protection of Women from Domestic Violence Act, 2005 (DV Act), possesses the power to grant interim custody of a minor child, asserting that Section 21 of the DV Act overrides the provisions of the Family Courts Act, 1984, to that extent.

A bench of Justice Lakshmi Kant Shukla observed that the "notwithstanding" clause in Section 21 of the DV Act gives it a pre-eminent position over other laws.

The criminal revision was filed by Rohit Yadav, challenging the judgment dated July 16, 2025, passed by the Additional Sessions Judge, Saharanpur. This appellate court had dismissed Yadav's appeal, thereby upholding the trial court's order dated March 6, 2025, which directed him to hand over the custody of his son, Master Krishna, to the opposite party (his wife). The revisionist contended that the trial court acted beyond its jurisdiction.

The primary legal question before the High Court was whether a Magistrate, while adjudicating under the Protection of Women from Domestic Violence Act, 2005, is empowered to decide the custody of a minor child. Further, the court was called upon to determine if such custody orders could be final or were restricted to interim relief, and the interplay between the DV Act and the Family Courts Act, 1984.

Supreme Court Precedent Distinguished

The Court first addressed the reliance placed by the revisionist on the Supreme Court's decision in Poonam Wadhwa v. Ajay Wadhwa & Others, 2025 SCC OnLine SC 2700. The bench clarified that this Supreme Court judgment did not delve into the provisions of Section 21 of the Protection of Women from Domestic Violence Act, 2005, and therefore, its findings were not directly applicable to the interpretation of the Magistrate's powers under the DV Act.

Rejection of Rajasthan High Court's Stance

The Allahabad High Court explicitly disagreed with the view expressed by the Rajasthan High Court in Smt. Payal Agarwal vs. Kunal Agarwal, 2014 SCC OnLine Raj 1227. The Rajasthan High Court had held that Section 21 of the DV Act does not create an independent forum for adjudicating questions related to permanent custody, confining the Magistrate's jurisdiction to temporary custody while substantive issues fell under the Family Courts Act.

DV Act's Overriding Effect Confirmed

The Allahabad High Court held that the finding of the Rajasthan High Court was not binding and did not lay down the correct legal position. It meticulously compared the language of Section 7 of the Family Courts Act, 1984, which begins with "Subject to the other provisions of this Act," with Section 21 of the DV Act, 2005, which uses a broader "Notwithstanding anything contained in any other law for the time being in force."

Later Enactment Prevails with Broader Non-Obstante Clause

The Court emphasized that when two enactments are simultaneously enforceable, and both contain "non-obstante" clauses, the later enactment, especially one with a more general overriding clause, will prevail over the earlier one. This principle led the Court to conclude that Section 21 of the DV Act has an overriding effect on the provisions of Section 7 of the Family Courts Act to the extent of its applicability concerning child custody. "Section 21 of the Act, 2005 keeps overriding effect upon the provisions of Section 7 of the Family Courts Act to the extent of applicability of Section 21 of the Act, 2005."

Interim Nature of Custody Order Under DV Act

Addressing the revisionist's argument that the Magistrate could only pass interim orders and not final orders for child custody, the High Court noted the trial court's order itself. The operative portion of the trial court's order dated March 6, 2025, stated: "प्राथर्ना पत्र अंतगर्त धारा-23 तथा धारा-21 घरेल ू िहसा अिधिनयम का अंतिरम प्राथनर् ा पत्र स्वीकार िकया जाता ह।" (The interim application under Section 23 and Section 21 of the Domestic Violence Act is accepted.)

No Exceeding of Jurisdiction

The High Court clarified that this language unequivocally indicates the order was purely interim, not a final determination of permanent custody. Therefore, the contention that the Magistrate had exceeded their jurisdiction under Section 21 of the DV Act was deemed devoid of substance. The Court reiterated that Section 21 of the DV Act explicitly empowers the Magistrate to grant temporary custody of children to the aggrieved person.

No Jurisdictional Error Found

Based on these reasons, the Allahabad High Court found no illegality, perversity, or jurisdictional error in the impugned judgment and order passed by the lower courts that would warrant interference under its revisional jurisdiction.

The Allahabad High Court dismissed the criminal revision, thereby affirming the trial court's interim custody order. The judgment clarifies that while a Magistrate under the DV Act possesses the power to grant interim custody of a minor child, overriding the Family Courts Act, this jurisdiction is confined to temporary arrangements and does not extend to final determinations of permanent custody.

Date of Decision: July 31, 2026