Introduction
Section 21 of the Protection of Women from Domestic Violence Act, 2005, is a vital legal provision that safeguards the welfare of children in situations of domestic abuse. This section empowers the Magistrate to issue interim custody orders for children, ensuring that the aggrieved woman or her representative can secure a safe and nurturing environment for them. The provision aims to prioritize the child’s best interests while balancing parental rights and protecting against potential harm. It serves as a critical mechanism to prevent further trauma to children during domestic violence proceedings and supports the victim’s right to protection and care.
What Are the Custody Orders Under Section 21 of the Domestic Violence Act?
Section 21 allows a Magistrate to grant temporary custody of children to the aggrieved woman at any stage during domestic violence proceedings. This custody can also be granted to a person applying on her behalf, such as a relative or guardian. The provision ensures immediate protection for the child while the case is ongoing. The Magistrate may also specify visitation arrangements for the respondent, typically the father, but this is subject to the child’s safety. If the Magistrate believes that visitation might pose a threat to the child’s well-being, they are empowered to deny such rights. The goal is to ensure the child’s emotional and physical safety while respecting the aggrieved woman’s legal rights.
What Are the Conditions for Refusal of Visitation Rights Under Section 21?
Visitation rights under Section 21 can be refused when the Magistrate believes that allowing the respondent to meet the child would negatively impact the child’s physical, emotional, or psychological well-being. This decision must be based on credible evidence, such as reports from counselors, psychologists, or even the child’s own statements expressing fear or discomfort. The child’s wishes play a significant role, particularly when they are of an age and maturity level where their preferences can be reasonably considered. A history of abuse, neglect, or substance misuse by the respondent further strengthens the case against visitation. Courts have consistently held that any refusal of visitation must come with detailed reasoning and should only be made in extreme circumstances. The Magistrate must explicitly state the grounds on which such denial is based, ensuring transparency and accountability in custody decisions.
Recent Case Law on Section 21 of the Domestic Violence Act
In a significant ruling in May 2025, the Orissa High Court upheld a father’s visitation rights despite objections from the mother. The case involved a challenge to a 2019 order by the Senior Civil Judge of Talcher granting the father access to his child. The mother argued that the father had abandoned the child shortly after birth and failed to provide financial or emotional support. However, Justice Gourishankar Satapathy emphasized that visitation rights are fundamental and should not be denied unless there are compelling and extreme reasons. The court reiterated that the child’s welfare remains paramount and should not be compromised due to parental conflicts. This judgment reflects the legal system’s effort to strike a balance between safeguarding the child and maintaining their relationship with both parents in accordance with Section 21.
Conclusion
Section 21 of the Domestic Violence Act plays a crucial role in protecting children from the adverse effects of domestic violence. By allowing temporary custody to the aggrieved woman and regulating visitation by the respondent, the law ensures that children’s safety and well-being are given top priority. It empowers Magistrates to act swiftly and sensitively, minimizing the risk of further trauma. The provision not only strengthens protections for women but also creates a child-centric approach to custody decisions during domestic violence proceedings. Through timely and reasoned judicial interventions, Section 21 fosters a safer and more supportive environment for children affected by domestic abuse.
