M.N. Bhandari, J. - (1.) BY this petition, a challenge is made to the order dated 27.08.2014 passed by Additional Chief Metropolitan Magistrate No. 8, Jaipur Metropolitan under Section 21 of Protection of Women from Domestic Violence Act, 2005 (in short "Act of 2005"). A further challenge is made to the order of Additional District & Sessions Judge, dismissing the appeal against the order of learned Magistrate.
(2.) LEARNED counsel for petitioner submits that an application under Section 12 of the Act of 2005 was filed by the non -petitioner along with many -fold prayers. In the said application, prayer for custody of the children was also made. Learned Additional Chief Judicial Magistrate passed an interim order directing custody of son Atharv. For custody of daughter Hisha, similar directions were ordered to apply. The challenge to the said order was made by filing an appeal but it was dismissed without considering any of the issues raised therein. Learned Senior Advocate Shri Ashok Mehta submits that an interim order under Section 21 of the Act of 2005 has been passed for custody as the disease of the non -petitioner -complainant has been cured. The non -petitioner submitted that she was suffering from mental ailment but recovered completely. The medical certificates of Doctors were produced to show that she is not suffering from the disease presently. Learned Magistrate then passed the order under Section 21 of the Act of 2005, which provides for custody of the child. A further reference of Section 23 is given, which gives jurisdiction to the court to pass interim order. The direction for interim custody of the children was given in reference to the aforesaid facts and by relying on a judgment in the case of Anwar Bhai v. Mumtaz Ben reported in, AIR 2010 (NOC) 627 (Gujarat) where custody of the minor children was allowed. The non -petitioner said to be earning a sum of Rs. 3,63,000/ - per year being Homoeopathic Doctor, thus would be in a position to take care of the children and accordingly order was passed.
(3.) THE appellate court confirmed the order without considering that mere submission of the application under Section 21 does not mean that in all circumstances, the custody of the child is to be given to the mother. The desire of the children should also be taken into consideration so as their welfare. In the instant case, children were not called to find out their desire. The courts below passed mechanical orders ignoring the aforesaid. A reference of judgment in the case of Mausami Moitra Ganguli v. Jayanti Ganguli, reported in : AIR 2008 SC 2262 was given apart from few judgments of the High Court. In the case of Mausami Moitra Ganguli (supra), the custody of the child at the age of three years was allowed in favour of the father but the judgment aforesaid was ignored in the light of financial condition of the mother.;