A woman who leaves a violent household rarely leaves alone; children come with her, and the question of who keeps them cannot wait for a full guardianship trial. Section 21 of the Protection of Women from Domestic Violence Act, 2005 answers this gap: it allows the Magistrate hearing a DV case to grant temporary custody of children to the aggrieved person and to regulate visitation, at any stage of the proceedings.
What Section 21 says
Section 21 of the Act provides that, notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of an application for a protection order or for any other relief under the Act, grant temporary custody of any child or children to the aggrieved person or to the person making an application on her behalf. The same provision empowers the Magistrate to specify, if necessary, arrangements for visit of such child or children by the respondent — and to refuse such visits altogether if the court is of the opinion that a visit may be harmful to the interests of the child.
Three features of the text deserve emphasis. First, the order is expressly temporary. Second, it can be passed at any stage — including at the very first hearing, alongside interim orders under Section 23. Third, the opening non obstante clause allows the Magistrate to act even though custody is otherwise the domain of guardianship courts.
Why the provision exists
The reliefs under the Act form a connected scheme. A protection order under Section 18 restrains further violence; a residence order under Section 19 secures the roof; monetary relief under Section 20 secures subsistence. None of these works if the respondent can use the children as leverage — by retaining them, snatching them from school, or conditioning their return on the woman withdrawing her case. Section 21 closes that gap by letting the same court, in the same proceeding, stabilise the position of the children while the main matter is heard.
The welfare of the child governs
Although Section 21 appears in a statute designed to protect women, the touchstone of any custody decision remains the welfare of the child. The provision itself reflects this: visitation is denied not because the respondent is a respondent, but where the visit may be harmful to the interests of the child. In practice, Magistrates weigh the age of the child, who has been the primary caregiver, the continuity of schooling and routine, any history of violence witnessed by or directed at the child, and the ability of each side to provide a stable environment during the pendency of the case. Tender age ordinarily favours continuity with the mother, but the inquiry is always fact-specific.
Visitation for the respondent
Granting temporary custody to the aggrieved person does not usually mean severing the child from the other parent. Courts commonly structure visitation — fixed days and hours, exchanges at a neutral or supervised venue such as a court children room or a relative's home, telephone or video contact between visits, and special arrangements for birthdays, festivals and vacations. Supervision is imposed where there are safety concerns, and arrangements can be tightened or relaxed as the case progresses. Refusal of visitation is the exception, reserved for cases where contact itself would harm the child.
Section 21 and guardianship proceedings
Custody under Section 21, DV Act
Temporary and protective. Passed by a Magistrate at any stage of a DV proceeding, on a prima facie view, to stabilise the position of the children during the case. It does not adjudicate guardianship rights and expires with, or is absorbed into, the final arrangement.
Custody under the GWA / Section 26 HMA
Substantive and considered. The Guardians and Wards Act, 1890 and Section 26 of the Hindu Marriage Act, 1955 empower Family Courts to decide custody and guardianship after full inquiry into the welfare of the child, with interim and final orders and continuing power to vary them.
Where both proceedings are pending, the courts strive for consistency: a considered custody or visitation arrangement made by the Family Court will ordinarily hold the field, and the Magistrate under the DV Act does not sit in appeal over it. Conversely, a Section 21 order is a stop-gap that the guardianship court examines afresh. Parties should disclose each proceeding in the other — suppression of a parallel custody order is viewed seriously.
How the order is sought and worked in practice
- The prayer for temporary custody is included in, or added to, the application under Section 12, supported by an affidavit setting out where the children are, who has been caring for them, and their schooling needs.
- Interim custody can be pressed at the first effective hearing along with other interim reliefs under Section 23, especially where children have been retained by the respondent or there is a risk of removal.
- The Domestic Incident Report, school records, medical records and photographs of the children with the applicant are the usual supporting material at the interim stage.
- Orders typically spell out handover logistics, visitation schedule, and liberty to apply for modification — custody arrangements are never final under this provision and can be revisited on changed circumstances.
- Breach of a Section 21 arrangement is brought back before the same Magistrate; where the order is coupled with a protection order, breach of the protection order is itself an offence under Section 31 of the Act.
The Delhi practice
In Delhi, DV applications are heard by Magistrates, with Mahila Courts designated in each district court complex. Section 21 prayers are usually decided at the interim stage on affidavits, the DIR where available, and a short hearing; counsellors attached to the courts are sometimes asked to facilitate supervised meetings. Where a Family Court is already seized of custody between the same parties, Delhi Magistrates ordinarily defer to its arrangements and confine themselves to preserving the status quo and the safety of the children.
This article addresses only Section 21 of the DV Act. Custody and guardianship procedure before the Family Courts, including final custody petitions, is covered separately on this website.
Frequently Asked Questions
Does a Section 21 order decide custody finally?
No. Section 21 expressly speaks of temporary custody. The order operates during the domestic violence proceedings and does not determine guardianship rights, which remain the province of proceedings under the Guardians and Wards Act, 1890 or Section 26 of the Hindu Marriage Act, 1955. A final custody court considers the matter afresh on the welfare principle.
Can the Magistrate refuse visitation to the father altogether?
Yes, where the Magistrate is of the opinion that any visit by the respondent may be harmful to the interests of the child, the statute permits the court to refuse such visit. Courts otherwise usually prefer structured, supervised or graded visitation so that the child does not lose contact with a parent without strong reason.
Can custody under Section 21 be sought without asking for other reliefs?
Section 21 begins with a non obstante clause and allows the order at any stage of hearing of an application for a protection order or any other relief under the Act. In practice the custody prayer accompanies an application under Section 12, alongside prayers such as protection, residence or monetary relief.
Which court in Delhi passes these orders?
Applications under the DV Act in Delhi are heard by Magistrates, with Mahila Courts designated in the district court complexes to deal with such matters. The Section 21 prayer is decided by the same court hearing the main application, often at the interim stage on affidavits and the Domestic Incident Report where one exists.