The Andhra Pradesh High Court in its order dated April 17, 2023 quashed an FIR against a Muslim father for allegedly kidnapping his minor sons from the custody of their mother.
The FIR was framed against the father in 2022.
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Last year, a woman filed a case against her estranged husband under Section 363 r/w 34 IPC accusing him, along with the children’s paternal uncle, of kidnapping their two sons (10 and 8 years) who were in the custody of the complainant mother (but residing with maternal grandparents).
The counsel for the petitioner father (and others) submitted that even if they accepted these allegations, they could not be charged under Section 363 r/w 34 IPC because the petitioners herein are Sunni Muslims, who are governed by the Sunni School of Mohammedan law.
The father contended that under the Sunni School of Mohammedan law, the mother is entitled to custody of her male child until he completes the age of 7 years. Thus, the counsel strongly argued that the father cannot be accused of kidnapping his sons in this case.
Defense by Mother
On the other hand, the counsel for the respondent mother argued that the children were in her custody, and thus if the father takes the children away, he is liable to be prosecuted for kidnapping.
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Andhra Pradesh High Court
Justice K. Sreenivasa Reddy heard both sides and explained when can one be charged for kidnapping of children. He said that it is clear from the Section 363 IPC that whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the custody of the lawful guardian of such minor or person of unsound mind without the consent of such guardian, is said to have committed the offence of kidnapping from lawful guardianship.
However, the High Court then analysed that under Muslim law, the father is the lawful guardian of his male children during their minority, and the mother can claim custody of such a child until the age of seven. Justice Reddy added,
A legal guardian is certainly a lawful guardian, and if he takes a minor child from the custody of the mother who is certainly not the legal or natural guardian, though entitled to the custody of the child until it reaches a particular age, he cannot be said to commit the offence of kidnapping.
In this case, the parties are governed by Mohammedan Law. Thus, it is the father that is the lawful guardian of his male children during their minority and mother can claim custody of such child till 7 years of his age.
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The High Court further remarked,
Since the parties are Muslims they are governed by Mohammadan law. The mother is entitled tot he custody of male child until the child reaches the age of 7 years under the Sunni School of Mohammedan Law, and 2 years under the Shia School. (See ‘Principles of,Mohammedan Law’ by D.K Mulla, 15th Edn page 297).
It is thus clear that under the Mohammedan law, the mother is entitled to the custody of her minor child only up to a certain age, depending upon the sex of the child.
Mother Not Natural Guardian
The High Court also said that it is an admitted fact that according to the Sunni law, the mother in this case is not the natural guardian. Infact, the father alone is the natural guardian. and if the father was dead, then his executor is the legal guardian. The Court noted:
Section 361 IPC speaks of ‘lawful guardianship’ and taking of a minor out of the keeping of the lawful guardian. The mother has the right to the custody of the minor only until a particular age.
That will not make the father criminally liable if he takes the child from the custody of the mother, the reason being that when the father takes the child from the custody of the mother, he is only taking the child to the custody of the lawful guardianship.
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Mother Not Even Residing With Children
The court further observed that the minor children were infact residing with their maternal grandparents, while the complainant mother works in Hyderabad. To this the Court added,
She is residing elsewhere because of her job. In such circumstances, father who happens to be the lawful guardian of the children, takes away the children from the grandparents would not in any way come within the purview of kidnapping.
The right of the mother to the custody of the children is not absolute right and that right is not superior to the right of lawful guardian. It is clear to the extent that it is the father alone that had taken away the children from the custody of the de facto complainant’s parents.
The Andhra Pradesh High Court thus held that the offence under Section 363 IPC is not attracted against the petitioner father, since he is the father and is lawful guardian of the children. Calling it an abuse of process of law, Justice Reddy concluded,
Prima facie basing on the accusations even accepting to be true, no offence was made out. Hence subjecting the petitioners herein to undergo the rigmarole of criminal trial would be totally unjustified leading to abuse of process of law.
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READ ORDER | Muslim Father Taking Away Sons Above 7-Years Of Age From Custody Of Mother Is Not Kidnapping: Andhra Pradesh High Court— Voice For Men India (@voiceformenind) April 28, 2023
▪️HC: "According to Sunni law, the mother in this case is not the natural guardian"#VoiceForMen#ParentalAlienationhttps://t.co/HYbLqejQo4
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