Jharkhand High Court
Shamiya Sarwar vs The State Of Jharkhand on 27 July, 2026
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
(2026:JHHC:22130)
1IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 537 of 2026
Shamiya Sarwar, aged about 21 years, w/o Hakim Ansari, r/o Village-
Sukurhuttu, P.O.-Sukurhuttu, P.S.-Kanke, Dist.-Ranchi, Jharkhand
.... Petitioner
Versus
1. The State of Jharkhand
2. Hakim Ansari, aged about 25 years, s/o Hasib Ansari, r/o Village-
Zara, Aukhargarha, P.O.-Kokdoro, P.S.-Pithoriya, Dist.-Ranchi
.... Opp. Parties
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Mr. Amit Kumar, Advocate
: Ms. Neha Kumari, Advocate
For the State : Mrs. Nehala Sharmin, Spl. P.P.
For O.P. No.2 : None
…..
By the Court:-
I.A. No.10012 of 2026
1. Heard the parties.
2. This interlocutory application has been filed with the prayer for
early hearing of this criminal miscellaneous petition.
3. Since, hearing of this criminal miscellaneous petition is taken up
today, hence, this interlocutory application is disposed of being
infructuous.
(Anil Kumar Choudhary, J.)
Cr.M.P. No. 537 of 2026
1. Heard the parties.
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2. Though notice has validly been served upon the opposite party
no.2 yet no one turns up on behalf of the opposite party no.2 in-
spite of repeated calls.
3. This Criminal Miscellaneous Petition has been filed invoking the
jurisdiction of this Court under Section 528 of B.N.S.S., 2023 with
the prayer to quash/set aside the order dated 09.12.2025 passed
by the learned Additional Family Court-II at Ranchi in O.M. Case
No. 511 of 2024 whereby and where under, learned Additional
Family Court-II, Ranchi has rejected the petition filed under
Section 26 read with Section 21 and 23 of the Protection of Women
from Domestic Violence Act, 2005 dated 23.08.2025 for custody of
minor child and interim relief, in the said proceeding which was
initiated by her under Section 144 of B.N.S.S., 2023, on the ground
that the case is at the initial stage and the issue as to whether the
welfare of child is best suited if her custody is given to the
petitioner or not can only be decided after proper adjudication.
4. It is submitted by the learned counsel for the petitioner by
relying upon the judgment of the Hon’ble Supreme Court of India
in the case of Vaishali Abhimanyu Joshi vs. Nanasaheb Gopal
Joshi dated 09.05.2017 in Civil Appeal No. 6448 of 2017 arising out
of SLP (C) No.24045 of 2016 wherein, the question before the
Hon’ble Supreme Court of India was as to whether counter claim
by the appellant in that case seeking right under Section 19 of
Protection of Women from Domestic Violence Act, 2005 can be
entertained in a suit filed against her under Section 26 of the
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Provincial Small Cause Courts Act, 1887 seeking mandatory
injunction directing her to stop using the suit flat and to remove
her belongings therefrom and the same was answered by the
Hon’ble Supreme Court of India by holding that the claim can be
filed by the appellant in Civil Suit No. 77 of 2013 is maintainable
by the Judge, Small Cause Court and needs to be considered in
accordance with law.
5. It is next submitted by the learned counsel for the petitioner
that the opposite party no.2 has forcibly taken the daughter of the
petitioner of whom the opposite party no.2 is the father and as the
opposite party no.2 has to remain outside his house in connection
with his work, the minor child lives with her grandparents most
of the time, who do not take proper care of her and though she
has already become four years old in December, 2025 but she has
not been admitted in any school; whereas the petitioner being a
well-educated lady can raise the child with love, care and
emotional support. It is further submitted by the learned counsel
for the petitioner that the petitioner being the biological mother
and natural guardian of the child in question, the welfare of the
child is best suited if the custody of the child is given to the
petitioner. It is then submitted by the learned counsel for the
petitioner that the learned Additional Family Court-II, Ranchi
instead of passing any order on the merits of the petition has
rejected the same only on the ground that the case is at the initial
stage and adjudication is required to determine the issue
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regarding the welfare of the child; therefore the impugned order
is not sustainable in law. Hence, the same be quashed and set
aside.
6. Learned Spl. P.P. on the other hand vehemently opposes the
prayer of the petitioner made in this criminal miscellaneous
petition and submits that no illegality has been committed by the
learned Additional Family Court-II, Ranchi. Hence, it is submitted
that this criminal miscellaneous petition being without any merit
be dismissed.
7. Having heard the rival submissions made at the Bar and after
carefully going through the materials available in the record, it is
pertinent to refer to paragraph no.36 of the judgment of Hon’ble
Supreme Court of India in the case of Vaishali Abhimanyu Joshi
vs. Nanasaheb Gopal Joshi (supra) which reads as under:-
“36. Section 26 of the Act, 2005 has to be interpreted
in a manner to effectuate the very purpose and object
of the Act. Unless the determination of claim by an
aggrieved person seeking any order as contemplated by
Act, 2005 is expressly barred from consideration by a
civil court, this Court shall be loath to read in bar in
consideration of any such claim in any legal
proceeding before the civil court. When the proceeding
initiated by plaintiff in the Judge, Small Causes Court
alleged termination of gratuitous licence of the
appellant and prays for restraining the appellant from
using the suit flat and permit the plaintiff to enter and
use the flat, the right of residence as claimed by the
appellant is inter connected with such determination
and refusal of consideration of claim of the appellant as
raised in her counter claim shall be nothing but
denying consideration of claim as contemplated by
Section 26 of the Act, 2005 which shall lead to
multiplicity of proceeding, which cannot be the object
and purpose of Act, 2005.”
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8. Section 26 of Protection of Women from Domestic Violence Act,
2005 which reads as under :-
“26. Relief in other suits and legal proceedings.–
(1) Any relief available under Sections 18, 19, 20, 21
and 22 may also be sought in any legal proceeding,
before a civil court, family court or a criminal court,
affecting the aggrieved person and the respondent
whether such proceeding was initiated before or after the
commencement of this Act.
(2) Any relief referred to in sub-section (1) may be
sought for in addition to and along with any other relief
that the aggrieved person may seek in such suit or legal
proceeding before a civil or criminal court.
(3) In case any relief has been obtained by the aggrieved
person in any proceedings other than a proceeding under
this Act, she shall be bound to inform the Magistrate of
the grant of such relief.”
envisages that any relief available inter alia under Sections 21
and 23 of the said Act may also be sought in any legal proceeding,
before inter alia any family court, affecting the aggrieved person
and the respondent whether such proceeding was initiated before
or after the commencement of this Act.
9. Section 21 of Protection of Women from Domestic Violence Act,
2005 which reads as under :-
“21. Custody orders.–Notwithstanding anything
contained in any other law for the time being in force, the
Magistrate may, at any stage of hearing of the application
for protection order or for any other relief under this Act
grant temporary custody of any child or children to the
aggrieved person or the person making an application on
her behalf and specify, if necessary, the arrangements for
visit of such child or children by the respondent :
Provided that if the Magistrate is of the opinion that any
visit of the respondent may be harmful to the interests of
the child or children, the Magistrate shall refuse to allow
such visit.”
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provides for the relief regarding passing of protection order and
also temporary custody of the child to the aggrieved person and
also passing orders for exercising visiting rights.
10. Section 23 of said Act which reads as under :-
“23. Power to grant interim and ex parte orders.–
(1) In any proceeding before him under this Act, the
Magistrate may pass such interim order as he deems just
and proper.
(2) If the Magistrate is satisfied that an application prima
facie discloses that the respondent is committing, or has
committed an act of domestic violence or that there is a
likelihood that the respondent may commit an act of
domestic violence, he may grant an ex parte order on the
basis of the affidavit in such form, as may be prescribed, of
the aggrieved person under Section 18, Section 19,
Section 20, Section 21 or, as the case may be, Section 22
against the respondent.”
empowers the court concerned to pass such interim order as
may be deem just and proper.
11. So, in view of the scheme of Section 26 of Protection of Women
from Domestic Violence Act, 2005, this Court is of the considered
view that the Additional Family Court-II, Ranchi was vested with
the jurisdiction to entertain the application under Section 26 read
with Section 21 and 23 of Protection of Women from Domestic
Violence Act, 2005. Now since, the petition has been filed under
Section 26 read with Section 21 and 23 of Protection of Women
from Domestic Violence Act, 2005 by the petitioner so it was
incumbent upon the learned Additional Family Court-II, Ranchi
to dispose of the same on its own merit; because Section 21 of
Protection of Women from Domestic Violence Act, 2005
empowers the court concerned to exercise the said power at any
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stage of the hearing of the application and Section 23 of the said
Act empowers the court to pass even interim orders.
12. Under such circumstances, this Court has no hesitation in
holding that the learned Additional Family Court-II, Ranchi has
committed a grave illegality by rejecting the petition filed under
Section 26 read with Section 21 and 23 of Protection of Women
from Domestic Violence Act, 2005 on the ground that the case is at
the initial stage and that the issue of welfare of the child can be
decided after proper adjudication, without going into the merits
of the claim of the petition.
13. Accordingly, the order dated 09.12.2025 passed by the learned
Additional Family Court-II at Ranchi in O.M. Case No. 511 of 2024
is quashed and set aside.
14. The learned Additional Family Court-II, Ranchi is directed to
pass a fresh order on the said application filed under Section 26
read with Section 21 and 23 of Protection of Women from
Domestic Violence Act, 2005 dated 23.08.2025 filed by the
petitioner for custody of minor child and interim relief on its own
merit after giving reasonable opportunity of being heard to the
parties of the case.
15. In the result, this criminal miscellaneous petition is allowed to
the aforesaid extent only.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 27th July, 2026
AFR/Gunjan/-
Uploaded on 29/07/2026
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