Shaleen Kabra DV Act Judgment

Finally, got my hands on this thanks to a reader.

This is important as a Delhi additional sessions court had ruled that allegations of domestic violence need to be proved and victims need to face cross-examination and provide evidence in support of their charges to be liable for relief.

The order of the ASJ was also upheld by the Delhi HC.

You can read the full story here:

PMO Official Accused Of Domestic Violence By Wife

You can download the ASJ and the Delhi HC judgments  here:

Shaleen Kabra DV Act Judgments-2008


12 Responses to “Shaleen Kabra DV Act Judgment”

  1. 1 Faizulla February 25, 2009 at 2:47 pm

    Thanks for sharing this. Are there any other DV judgements favoring men in DV cases? Are there any judgements from HC/SC not grating the interim child custody to the wife in DV cases?

    Really Appreciate your help.


  2. 3 vineeta November 7, 2009 at 10:12 am

    Mrs.Mary Cedric Pinto .. Petitioner
    Mr.Cedric Francis Pinto & Anr. .. Respondents
    Mr.N.P.Deshpande for the petitioner.
    None for the 1st respondent.
    Ms.A.T.Jhaveri, A.P.P for the respondent No.2-State.
    CORAM : A.S.OKA, J.
    . On 2nd July 2009 the submissions of the learned counsel appearing
    for the petitioner were heard. The judgment was not delivered on that day as
    the learned counsel appearing for the 1st respondent was not present. The
    judgment was reserved. The judgment could not be pronounced earlier as
    the file of the petition was misplaced.
    2. The petitioner is the wife and the 1st respondent is the husband. An
    application was made by the petitioner under section 12 of the Protection of
    Women from Domestic Violence Act, 2005 (hereinafter referred to as the
    said Act) before the learned Magistrate praying for various reliefs. The
    dispute relates to custody of three minor children. Interim relief was granted
    by the learned Magistrate by order dated 21st November 2007 in exercise of
    powers under section 23 of the said Act by directing that the 1st respondent
    shall hand over temporary custody of the three minor children to the
    petitioner. The directions were given to the 1st respondent to desist from
    causing domestic violance as mentioned in the report of the Protection
    Officer. Under the said order an arrangement was made enabling the three
    minor children to stay with the 1st respondent father from 8.00 a.m of every
    Saturday till 9.00 a.m on the immediately following Sunday. An appeal was
    preferred by the 1st respondent. By the impunged order dated 19th December
    2007, the learned Additional Sessions Judge modified the order of the
    learned Magistrate and directed that the husband and wife will be entitled to
    retain the custody of the minor children every alternate month. The petitioner
    and 1st respondent were directed to take proper physical and mental care of
    the children whenever the children would remain in their custody.
    3. When the writ petition came up before this Court for admission on 15th
    September 2008, the petition was ordered to be placed in chamber. On 19th
    September 2008 in chamber this Court interviewed the three minor children.
    Thereafter, the matter appeared before the Court on 24th September 2008.
    The paragraphs 2 to 4 of the order passed on that day read thus:
    “2. It must be stated here that on Friday, 19th September 2008 at
    5.30 p.m the children were called to my chamber alongwith the
    petitioner and the 1st respondent. I had no occasion to talk to the
    three children. To enable me to talk to the children, I requested the
    parties and the advocates to wait outside the chamber. While leaving
    the chamber, the learned advocate holding for the advocate for the
    petitioner requested the Court to ensure that a cellphone is not kept
    with the eldest child for recording the conversation in the chamber.
    The first respondent categorically stated that there is no basis for
    such apprehension.
    3. The children were at pains to tell me that they desire that the
    parents should come together and they will be very happy if they are
    in position to stay with both the parties. Therefore, in chamber, a
    suggestion was given to the parents to explore the possibility of
    reconciliation, keeping in mind the desire expressed by the three
    4. I gather from Shri Deshpande, learned advocate for the
    petitioner that as of today, there is no possibility of reconciliation
    between the petitioner and the 1st respondent. “
    4. On 27th April 2009 when the petition was called out, none appeared
    for the 1st respondent. The advocate for the petitioner was present. He
    stated that no progress has been made in the matter of settlement.
    Therefore, the petition was ordered to be fixed for final disposal.
    5. The petitioner and 1st respondent married on 18th October 1989 under
    the provisions of the Special Marriage Act. On 27th December 1991 they
    again got married in church. The couple was blessed with three children.
    The first two are the daughters and third one is the son. The present ages of
    the children appear to be 16 yrs, 14 yrs and 12 yrs respectively.
    6. As stated earlier, temporary custody of the minor children was granted
    by the learned Magistrate in favour of the petitioner. The order of temporary
    custody was disturbed by the Sessions Court by passing a peculiar order.
    The petitioner-wife and the 1st respondent husband were permitted to retain
    custody every alternate month. It, however, appears that after the order of
    the Sessions Court, the custody of the children has remained with the 1st
    respondent father.
    7. The learned counsel appearing for the petitioner submitted that there
    was no reason for the learned Additional Sessions Judge to disturb the order
    of temporary custody passed by the learned Magistrate. He submitted that
    the order of the learned Sessions Judge that custody of the children will be
    retained by the petitioner and 1st respondent every alternate month is
    perverse and is not in the interests of the minors. He submitted that out of
    the three minors two are daughters and the son is of tender age. He
    submitted that welfare of the minors require that their custody should be
    retained with the mother.
    8. I have given careful consideration to the submissions. It is well settled
    law that while deciding an application for custody of minor children, the only
    paramount consideration is welfare of minor children and the legal rights of
    the parties or the parents are not relevant. The order of the learned
    Magistrate records that the minor children on their own sought audience of
    the learned Magistrate and in chamber when the learned Magistrate talked
    to the children, they expressed a desire to stay with the mother. Thereafter,
    the learned Magistrate passed an interim order directing that the custody of
    the minor children be handed over to the petitioner. However, he passed an
    order directing that at weekends the minor children will stay with the 1st
    9. The learned Additional Sessions Judge has noted in the impugned
    order that he had taken interview of the minor children in his chamber and
    he had talked to the parties with a view to bring about settlement. He has
    recorded that the petitioner was not in a mood to even think of settlement.
    10. In paragraph 4 of the impugned order, he has noted that both the
    mother and father were claiming custody. He noted that the children want
    both the parents to stay together and they need love and affection of both,
    the mother and the father. He noted that the children expressed their desire
    to celebrate Christmas and New Year in the company of their parents. The
    relevant part of the order passed by the learned Additional Sessions Judge
    reads thus:
    6. The elder daughter Eleine is the studen of IX th standard.
    Cedrina and Edric are the students of Vth standard. Their welfare is
    of paramount consideration. The children do not have any
    allegation against the parents. Both the parties want to exercise
    their parental authority to have custody of the children. The children
    want both the parents and stay with them together. They want ot
    celebrate Christmas and the New Year in their company, which
    appear impossible, because the respondent No.1 is not ready. It is
    in this circumstances the appeal needs to be partly allowed as the
    order passed by the learned Magistrate needs some modification in
    the interest of the children. Hence, the following order:
    The appeal is partly allowed as under:-
    1. The appellant shall give the custody of the three children to
    the respondent No.1 today in the Court.
    2. The respondent No.1 shall keep the children in their custody
    till 19th January 2008. She shall give the custody back to the
    appellant on 20th January 2008 at about 9 a.m in the office of
    Mahila Vikas Kendra Pulgate, Pune and the appellant shall
    collect the children therefrom.
    3. Thereafter the appellant shall keep the children in his custody
    till 19th February 2008 and he shall deliver the custody of the
    children to the respondent No.1 on 20th February 2008 at the
    same place and time to enable the respondent No.1 to collect
    the children.
    4. In this manner this cycle of one month shall go on until
    further order.
    5. The appellant and the respondent No.1 shall not remove the
    children out of the municipal limits of the Pune Cantonment
    and Pune Corporation without prior permission of the learned
    11. It must be noted that even before this Court the three children were at
    pains to point out that they desire that their parents should stay together and
    they would be very happy if they get an opportunity to stay with both the
    parents. Therefore, on 19th September 2009 a suggestion was given by this
    Court to the parents to explore the possibility of reconciliation keeping in
    mind the desire expressed by the three children. The petition was adjourned
    thereafter from time to time. But the parties could not reconcile and come to
    a settlement. It is not possible at this stage to find out which of the two
    parties is not willing to settle the dispute. But it has to be observed that it
    would have been in the best interests of the minor children if the petitioner
    and the 1st respondent had patched up the differences and had agreed to
    reside under one roof only with a view to ensure that the minor children get
    company of both the parents. Both the parties should have given
    paramount importance to the wishes expressed by their children. Sadly, the
    petitioner and 1st respondent are not able to patch up the disputes. They
    could have even considered of residing under one roof atleast for few years
    till the children become major.
    12. The three children are school going children. It must be stated here
    that the Sessions Court has passed a very peculiar order. The Sessions
    Court thought that it is in the interests of the minors that they remain in
    custody of their parents every alternate month. Such approach, to say the
    least, is shocking. The learned Sessions Judge has not at all considered the
    effect of this arrangement on the minors. The Act of disturbing custody of the
    minors after every one month will cause mental trauma to the minor
    children. The minor children have already suffered because of the attitude
    adopted by the parents of not settling the disputes atleast for the sake of
    children. In a case where there is a dispute between the parents over the
    custody of minor children, the custody has to be retained with one of the
    parents with visitation rights and/or right to have temporary custody for few
    days reserved in favour of the other parent. The arrangement which is made
    by the impugned order is certainly not in the interests of the minors and by
    such arrangement, the minors are bound to suffer. Therefore, the order
    impugned which is certainly not consistent with the welfare of the minors,
    will have to be quashed and set aside. Now the question which remains is
    what should be the interim arrangement during the pendency of the main
    application under section 12 of the said Act. For whatever reasons, for a
    substantially long time, the custody of the minors has remained with the 1st
    respondent father. Now it will not be in the interests of the minors to disturb
    the custody of the father till the main application is heard. The main
    application under section 12 of the said Act will have to be heard and
    disposed of expeditiously. However, the petitioner will have to be given right
    to meet her minor children and to remain in their company for sufficiently
    long time at periodical intervals. Even the minor children will need the
    company of their mother. However, interim arrangement will have to be
    worked out by the parties before the learned Magistrate as the 1st
    respondent has not chosen to appear before this Court at the time of final
    13. Hence, I pass the following order:
    : O R D E R :
    (a) The impugned order dated 19th December 2007 is quashed and
    set aside.
    (b) Considering the events which have transpired, till the disposal
    of the application under section 12 of the said Act, the custody of the
    minor children of the 1st respondent husband shall not be disturbed
    unless there are subsequent events warranting change in custody.
    (c) The petitioner will be entitled to meet the minor children at
    regular intervals and to remain in their company for sufficiently long
    time. The learned Magistrate will pass a proper order in that behalf
    after hearing both the parties.
    (d) The main application under section 12 of the said Act shall be
    decided as expeditiously as possible and preferably within a period of
    three months from today.
    (e) All contentions of the parties in the main application are
    expressly kept open.
    (f) The writ petition is disposed of in above terms.


  3. 4 SANJAY THAPA March 24, 2010 at 2:42 pm

    A DV case hearing is pending before the court can i ask for child visitation now as i have not been allowed to meet my child for over 8 mths.


  4. 5 vineeta June 2, 2010 at 7:52 am

    yes you can. also file an application for custody under guardians and wards act


  5. 6 Vishnu August 27, 2011 at 2:30 pm

    Got married in 9th sep 2007. Having a son with age 3. MY wife has filled DVA against me. After that I had filled an RCR in family court. Then she had asked an interim maintenance rs 5000 for her & my son on 26.8.2011[while the judge ask her whether she is willing to live with me ” she said she is not interested”]. Now on 9th sep the judge asked us to talk with him in chamber. Now can I ask for visiting rights?
    what should I speak in chamber?


  6. 8 Satish s. June 13, 2012 at 11:22 am

    Ple.sent me judgment


  7. 9 siranjeet sandhu January 11, 2013 at 6:43 pm

    good judgement for DV victim and father Who wants child custody


  8. 10 Nehal Doshi September 4, 2013 at 10:10 am

    Thanks for sharing people. Are there any other DV judgements favoring Senior Citizen Husband retired age 70 in DV cases? Are there any judgements from HC/SC not grating the interim Relief to the Senior Citizen wife age 64 in DV cases where she earns more than husband / has houses of her own and also renting / not living with husband since 4 years ?


  9. 11 sanjay sanghavi December 21, 2014 at 12:21 pm



  10. 12 Subhash Kulkarni October 2, 2015 at 2:19 am

    can any one post the shaleen kabra vs. shiwani kabra latest position.
    From SC site it is clear that Cri.MC. No.323/2008 delhi HC. order on right to cross was challenged in the SC vide SLP(Cri)No.1227/2008 and decided on 4.4.2008. However the copy of order/judgment is not available.


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February 2009

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