y of child is maintainable before Magistrate at place where there is family court?

Whether application seeking custody of child is maintainable before Magistrate at place where there is family court?

Section 8 of the Act 1984 makes jurisdiction of the Family
Court under Section 7 sub­Sections (1) and (2) as exclusive.  But, this
exclusivity, as it emerges from the discussion made so far, would relate to
only those jurisdictions which are exercisable by a district Court or any
subordinate   civil   Court   in   respect   of   matters   referred   to   in   the
Explanation or by a criminal Court like the Court of Magistrate of the
First Class in respect of matters under chapter IX of the Cr.P.C. and

nothing more or nothing less.   It is obvious that the exclusivity of the
jurisdiction under Section 8 of the Act, 1984 is extendable to only those
matters specifically referred to in sub­Section (1) and sub­section (2) of
Section 7 of the Act 1984 and not to the jurisdiction of the Magistrate
under Section 21 of the DV Act.   Thus, respectfully disagreeing with the
learned counsel for the petitioner, I find that Sections 7 and 8 of the Act,
1984 could not be interpreted and understood to mean that they confer
sole and exclusive jurisdiction upon the Family Court in respect of all
custody matters and, thus oust the jurisdiction of a Magistrate under
Section 21 of the DV Act.  I would add here, there are certain custody
matters, like the one under Section 21 of the DV Act, which are beyond
the pale of dominance of Sections 7 and 8 of the Act, 1984.
17. No doubt, Section 20 of the Act 1984 accords provisions of
the said Act primacy  over any other law for the time being in force due
to the over­riding effect given to it.  But, this overriding effect is only to
the extent of inconsistency of the provisions contained in any other law
in   force   with   the   provisions   of   the   Act   1984.     We   have   seen   that
jurisdictions of the Family Courts under both parts of Section 7 do not
cover the jurisdiction exercisable by Judicial Magistrate, First Class in
respect of grant of interim custody under Section 21 of the DV Act and,
therefore, there is no question of jurisdiction of the Magistrate under
Section   21   of   the   DV   Act   being   inconsistent   with   the   provisions

conferring jurisdiction upon the Family Court and as such, the Act 1984
will not have any overriding effect upon the DV Act.
18. On the contrary, I must point out, the reliefs available under
Sections 18,19,20,21 and 22 of the DV Act are in the nature of a help,
which is extended to an aggrieved person in addition to the assistance
that the aggrieved person may have under any other law for the time
being in force whether civil or criminal.  This is clear from the provision
of Section 26 of the DV Act which lays down that any reliefs available
under Sections 18,19,20,21 and 22 may also be sought in any legal
proceeding before the civil Court, family Court or a criminal Court.  In
other words, the reliefs available under the DV Act are supplementary in
nature and do not exclude similar reliefs available under other laws.
This is further reaffirmed by the provision of Section 36 of the DV Act
prescribing that the provisions of this Act shall be in addition to and not
in derogation of provisions of any other law for the time being in force.
19. The   above   discussion   would   lead   me   to   conclude   that
application filed under Section 21 of the DV Act seeking interim custody
is maintainable before a Magistrate exercising jurisdiction in relation to
an   area   where   Family   Court   is   established   and   the   Magistrate   has
jurisdiction   to   decide   such   an   application   in   accordance   with   law.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION No.750 OF 2016
  Dr. Parijat Vinod Kanetkar,
      
V
   Mrs. Malika Parijat Kanetkar,
      
        CORAM  :   S.B. SHUKRE, J.
        DATE      :   21 st DECEMBER, 2016.
        Citation: 2017(2) MHLJ 218