Yes. Section 21 of the Protection of Women from Domestic Violence Act, 2005 lets the Magistrate hearing your application grant you temporary custody of your child at any stage of the case, fix your husband's visits, and refuse visits altogether if they would harm the child. You do not need a divorce petition, a guardianship petition or a police FIR first: custody under the Domestic Violence Act travels inside the same Section 12 application that asks for a protection order, a residence order and maintenance, and an interim order can be passed on your affidavit before he is heard. This page is written for a mother staying with her own family in Bengaluru after leaving with a young child, who is now being told to hand the child back.
Part of the domestic violence practice at S Jain & Attorneys, Bangalore.
| Stage | Provision | Time under the Act |
|---|---|---|
| Application to the Magistrate | Section 12(1), 12(4) | First hearing not ordinarily beyond three days from receipt |
| Notice to him | Section 13(1) | Through the Protection Officer within two days, or further time the court allows |
| Interim or ex parte custody | Section 23 with Section 21 | Any time after filing, on your affidavit |
| Final order | Section 12(5) | Endeavour to dispose within sixty days of the first hearing |
| Appeal | Section 29 | To the Court of Session within thirty days of service, whichever service is later |
Four figures in those rows are the ones to keep in your head.
Three days to first date
Section 12(4) tells the Magistrate to fix the first hearing not ordinarily beyond three days from receipt.
Interim custody on affidavit
Section 23(2) allows an ex parte order under Section 21 on your sworn affidavit, before he files any reply.
Sixty days to decide
Section 12(5) sets a sixty-day target from the first hearing for the final order, a target you can hold the court to.
Thirty days to appeal
Section 29 gives each side thirty days from service to appeal to the Court of Session, so an adverse order is not the end.
Can the domestic violence court give me custody of my child?
It can. Section 21 says 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 ... and specify, if necessary, the arrangements for visit of such child or children by the respondent". The proviso adds that if any visit "may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit", and the section opens with "notwithstanding anything contained in any other law".
So the Magistrate need not wait for a Family Court, you can ask on day one, what you get is temporary custody, and the order runs one way: to the aggrieved person under Section 2(a), or to someone applying on her behalf. The Karnataka High Court applied that last point in Girija Patel v Vijay R Rao (Criminal Revision Petition 1062 of 2014, decided 10 February 2015), where a Bengaluru Magistrate had, on the husband's application, directed the mother to hand over the child. The High Court set that aside, holding that Section 21 gives "no such right ... to the respondent-husband to file an application seeking interim custody of the child". He cannot use your DV case to take custody for himself.
Key takeaway. Custody under Section 21 is a relief for the aggrieved woman, granted at any stage and before the Family Court has said anything, with the respondent's visits fixed or refused in the same order. Temporary by its own words, which is its strength this month and its limit next year.
Two Supreme Court rulings also matter. Kamatchi v Lakshmi Narayanan (13 April 2022) holds that a Section 12 application is not a criminal complaint, so the one-year limitation does not apply and delay is weighed on the merits. Juveria Abdul Majid Patni v Atif Iqbal Mansoori (18 September 2014) holds that a later divorce does not take away the reliefs, naming "Child Custody under Section 21" expressly.
How quickly can I get the order, and can it be passed before he is heard?
On the first or second hearing, on your affidavit, without waiting for his reply. Section 23(1) allows interim orders in any proceeding under the Act, and Section 23(2) allows an ex parte order under Section 18, 19, 20, 21 or 22 on your affidavit in the prescribed form if the application prima facie discloses that the respondent has committed, is committing or is likely to commit domestic violence.
You do not have to go through the Protection Officer first. Section 12(1) lets you present the application yourself, and the proviso only requires the Magistrate to consider a domestic incident report if one has been received. Prabha Tyagi v Kamlesh Devi (Supreme Court, 12 May 2022) holds that Section 12 "does not make it mandatory for a Magistrate to consider a Domestic Incident Report ... before passing any order", that ex parte, interim and final orders can be passed without one, and that living apart from him when you file does not affect your standing.
One caution. Girija Patel records that an earlier custody order passed without notice to the husband had been set aside in revision so that he could be heard. Where the child is already with you and safe, ask instead for an interim order on short notice: status quo on custody from day one, a direction that the child not be removed from you, and his visits heard within the week.
Deadline warning. Section 29 gives thirty days from service to appeal to the Court of Session, running from service on the later-served party. An order you let sit for five weeks is one you live with until circumstances change under Section 25(2).
Which court in Bengaluru do I file in, and what goes in the application?
Before the Metropolitan Magistrate in Bengaluru city, or the Judicial Magistrate of the first class elsewhere in Karnataka, for the area where you now live, even temporarily. Section 27(1) gives jurisdiction where the aggrieved person "permanently or temporarily resides or carries on business or is employed", where the respondent lives or works, or where the cause of action arose. Your parents' address is enough. A fresh Section 12 application goes to the Magistrate. If a case between you is already pending in the Family Court, Section 26(1) lets you seek the same reliefs there, with a duty under Section 26(3) to tell the Magistrate of any relief obtained. The short answer on filing a DV case and the guide on getting a protection order cover the filing mechanics.
For the custody prayer, add the birth certificate, the medical record or photographs from the assault, the dated messages demanding the child back, proof that you and the child live at your parents' address, and a short statement of who has done the daily care since birth. Ask in terms for temporary custody under Section 21, a direction that the child not be removed from your custody without leave, visits to be fixed only after he is heard, and police assistance under Section 19(5) and 19(7).
Will my husband get visitation while the case is on?
Usually yes, on terms the Magistrate sets, unless the court is of the opinion that his visits may harm the child, in which case the proviso says it "shall refuse". Typical terms for a four-year-old: visits at a relative's house, the court complex or a mediation centre, for fixed hours, no overnight stay, no travel out of the city. Section 19(2) lets the Magistrate add any condition "reasonably necessary to protect or to provide for the safety of" the aggrieved person or any child of hers, and a Section 18(d) no-contact order routes handovers through a third person.
| What the court can do about visits | Where the power sits | When it is used |
|---|---|---|
| Fix visits at set times and places | Section 21, "arrangements for visit" | The assault was on you, not on the child |
| Supervised visits, no overnight stay, no travel | Section 21 with Section 19(2) | Messages threaten to come and take the child |
| Refuse visits altogether | Proviso to Section 21 | The court forms the opinion that any visit may harm the child |
A father who assaulted the mother is not, for that reason alone, barred from seeing his son. The case turns on risk to the child: threats to remove him, an earlier attempt, violence in his presence, conduct during interim visits. The note on seeing a child while a case is pending gives the father's side.
Is custody under the Domestic Violence Act permanent, or only until the Family Court decides?
It is temporary. The section says so, Girija Patel describes the Act as providing interim custody "till disposal of main petition", and Section 25(2) lets either side seek alteration on a change in circumstances. Permanent custody and guardianship are decided under the Guardians and Wards Act, 1890, in Bengaluru by the Family Court, because Section 7(1) Explanation (g) of the Family Courts Act, 1984 sends every proceeding about the custody of a minor there. That court can order production and temporary custody in the interim (Section 12) and appoints a guardian on the welfare factors in Section 17. A divorce court has the same power under Section 26 of the Hindu Marriage Act, 1955.
Your Section 21 order holds the position now, and Section 36 says the DV Act adds to and does not displace other law. If he files a guardianship petition, the Family Court decides interim custody on the welfare of the child, which the Supreme Court in Athar Hussain v Syed Siraj Ahmed (2010), a Bengaluru case, treated as the focal point rather than the rights of the contesting relatives. Its reasoned order on a fuller record will in practice govern, and Section 26(3) obliges you to inform the Magistrate of it. For a child under five, Section 6(a) of the Hindu Minority and Guardianship Act, 1956 says custody "shall ordinarily be with the mother", explained in the guide on custody of an infant and the tender years rule. If he says he alone is the natural guardian, Githa Hariharan v Reserve Bank of India (Supreme Court, 1999) read "after" in that section as "in the absence of" the father.
He took the child anyway: what do I do now?
Go back to the same Magistrate the same day, and know which parts of your order carry a penalty. Section 31 makes breach of a protection order, or an interim protection order, an offence punishable with imprisonment up to one year or a fine up to twenty thousand rupees or both, and Section 32 makes it cognizable and non-bailable. Those words name the protection order under Section 18, not the custody order under Section 21, which Section 2(d) defines separately. Section 18(g) lets the Magistrate prohibit "any other act as specified in the protection order", and a protection order that prohibits him from removing the child from your custody turns the removal into a Section 31 offence the police can act on without a warrant.
If your order has no such clause, or you have no order yet, the faster remedy is a writ of habeas corpus in the High Court, explained in the guide on habeas corpus when a parent takes the child, with a Guardians and Wards Act application alongside. Where you do hold an order, the guide on enforcing an interim order under the DV Act covers the breach application.
What I tell clients at this stage is that these cases turn on the first order, not the final one. The parent who holds the child under a court order when the Family Court finally reads the file is the parent arguing for continuity, and continuity is most of what "welfare" means for a four-year-old. The work in week one is an interim order that names the child, bars removal in Section 18 language, fixes visits you can actually keep, and reaches the police station. A mother who does that, keeps every ordered visit and never attempts a counter-removal is very hard to dislodge.
Common mistake. Asking only for custody under Section 21 and leaving the protection order generic. Section 31 punishes breach of the protection order, so if the no-removal direction is not in the Section 18 order, a father who takes the child has breached an order the police cannot arrest for.
Can I ask for maintenance for my son and a place to live in the same case?
Yes, in the same Section 12 application. Section 20(1)(d) lets the Magistrate order maintenance "for the aggrieved person as well as her children", in addition to any order under Section 125 of the Code of Criminal Procedure, now Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, and Section 20(6) lets the court direct his employer to deduct unpaid amounts from his salary. On housing, Section 17 gives you the right to reside in the shared household whether or not you own any part of it, and Section 19(1)(f) lets the Magistrate direct him to provide the same level of alternate accommodation or pay rent for it. The guide on child support in India and the note on who can claim under Section 144 BNSS deal with quantum.
One application carries custody, visits, the no-contact order, rent and maintenance, and these four points hold it together.
Temporary by design
Section 21 grants temporary custody, read by the Karnataka High Court as interim till the main petition is decided.
Visits can be refused
The proviso to Section 21 obliges the Magistrate to refuse a visit once the court forms the opinion that it may harm the child.
No one-year bar
Kamatchi v Lakshmi Narayanan holds that a Section 12 application is not a criminal complaint, so the one-year limitation does not apply.
Runs to her alone
Girija Patel v Vijay R Rao: the respondent-husband has no right under Section 21 to seek interim custody for himself.
What do I do this week, step by step?
- Get the assault on record: a hospital or clinic entry with the date, timestamped photographs of injuries, and screenshots of every message demanding the child.
- Fix the court: the Metropolitan Magistrate for the area of your parents' house under Section 27(1)(a), and note the police station for that area.
- Draft the Section 12 application with a Section 23(2) affidavit: temporary custody under Section 21, a Section 18 order prohibiting removal of the child and any contact with you, rent under Section 19(1)(f), monetary relief under Section 20, police assistance under Section 19(5) and 19(7).
- Move for the interim order on the first date, which Section 12(4) sets at not ordinarily beyond three days: status quo on custody with a no-removal direction, visits to be fixed after he is served.
- Collect the free certified copy under Section 24, hand one to the police station, and keep the acknowledgment.
- Keep every visit fixed, and a dated log of each visit and message.
- If he files in the Family Court, seek the same reliefs there under Section 26(1), inform the Magistrate under Section 26(3), and oppose interim custody there.
- Diary thirty days from service of every order under Section 29, for his appeal and for yours.
The domestic violence practice and the child custody practice at the firm handle the DV application and the Family Court proceeding as one matter.
Frequently Asked Questions
Does my child have to be physically with me when I file for custody under Section 21?
No. Section 21 lets the Magistrate grant temporary custody of any child to the aggrieved person at any stage, and nothing in it requires the child to be in your hands first. If the child is with your husband, the order directs handover and Section 19(5) police assistance can be added, but where a child has already been taken the habeas corpus route in the High Court is usually faster and should be considered alongside.
We were never married. Can I still get custody through a domestic violence case?
Yes, if you lived together in a relationship in the nature of marriage, which Section 2(f) includes in the definition of a domestic relationship. Section 21 speaks of any child of the aggrieved person, and under Section 6(b) of the Hindu Minority and Guardianship Act the mother is the first natural guardian of a child born outside marriage.
He has already filed a guardianship petition in the Family Court. Does that block my DV application?
No. Section 36 makes the DV Act additional to other law, and Section 26(1) lets you ask for the same reliefs inside his Family Court case as well. You must inform the Magistrate of any relief you obtain there under Section 26(3), and the Family Court's reasoned order on interim custody under Section 12 of the Guardians and Wards Act will govern once passed.
Will a police FIR help or hurt the custody application?
Neither is a precondition. Section 5(e) records your right to complain of the cruelty offence (old Section 498A IPC) and the DV application does not depend on it, but a medical record and a contemporaneous complaint are strong evidence of the assault that the custody order rests on. In Juveria Patni the FIR lodged before the alleged divorce was one reason the Supreme Court held the DV application maintainable.
Is there a time limit for filing after I left the house?
No fixed limit. Kamatchi v Lakshmi Narayanan holds that the one-year limitation in the criminal code does not apply to a Section 12 application because it is not a complaint of an offence. Delay is still weighed on the merits, so three weeks is nothing, but do not let it become a year.
Can my husband get custody from the DV court instead of me?
Not under Section 21. The Karnataka High Court in Girija Patel v Vijay R Rao set aside a Bengaluru Magistrate's order that handed a child to the husband, holding that Section 21 gives the respondent no right to seek interim custody. His route to custody is a guardianship petition in the Family Court, where welfare of the child decides.
If I later file for divorce, does the DV custody order lapse?
No. Juveria Abdul Majid Patni holds that a subsequent divorce does not take away reliefs under the Act, custody under Section 21 included. Once a divorce petition is filed, Section 26 of the Hindu Marriage Act gives that court its own power over custody, and its orders will carry the case forward.
Do I need the Protection Officer's domestic incident report before the Magistrate can act?
No. Prabha Tyagi v Kamlesh Devi holds that Section 12 does not make the report mandatory and that the Magistrate can pass ex parte, interim and final orders without it. You may still ask the Protection Officer to prepare one, and it helps on the facts, but it does not gate the first order.
Does a custody order passed in Bengaluru work if he takes the child to another State?
Yes. Section 27(2) makes any order under the Act enforceable throughout India. Carry a certified copy, and if the child has been moved, the habeas corpus petition can be filed where the child is being held.
This article is for general informational purposes only and does not constitute legal advice. Consult a qualified advocate for advice on your specific situation.
