Recently, high court of Andhra Pradesh ruled in favor of father who was alleged to have kidnapped his minor sons of the age ten (10) and eight (8).
The father along with his brother (paternal uncle of children), took away his children from the supervision of their maternal grandparents. On 23.9.2022 at 12:30 PM the accused along with his brother showed up in a car and took away the children by pushing away their maternal grandfather, who was bringing the children back from school.
Counsel for the petitioners stated that even if all the allegations are considered to be true, still the offence under section 363 r/w 34 IPC would not be amounted as the petitioners here are Sunni Muslims and are governed by the Sunni School of Mohammedan Law.
According to the Sunni School of Mohammedan Law, the mother is entitled to the custody of her male children until the age of 7.
The counsel for the respondent argued that the custody of children remains the with mother and the that the father who is accused of kidnapping the children from their mother’s custody is punishable under the section 363 r/w 34 IPC.
It was noted that the parties are Muslims and hence they are governed by Mohammadan law, where the mother is entitled to the custody of her children only till a certain age, once the child reaches the age of seven (7) under Sunni School of Mohammedan Law and age two (2) under the Shia School she is not the natural guardian of the child rather the father alone is the natural guardian of the child, and if in case the father dies his executor is then considered the legal guardian according to Sunni law.
The bench observed that the father can not be held criminally liable for taking his children from the custody of their mother as he is only taking the children to the custody of a lawful guardianship. According to the Privy Council the natural guardian is the father of the children and not the mother, hence taking away the children from the custody of the mother who is not the natural guardian, rather just entitled to the custody of the children up until the kids reach a certain age, will most certainly not amount to kidnapping.
In the case of Md. Asif Ahammad v State of Andhra Pradesh, the bench stated that the father of the children who are living with their maternal grandparents and were under the custody of their mother who is residing elsewhere, reason being her job, is the natural and lawful guardian of the children since both of the kids are over the age of 7 years and his action would not amount to kidnapping. The mother’s right to the custody of children is not an absolute right and also the right is not supreme to the right of a lawful guardian. And hence it was ruled that the offence under section 363 r/w 34 IPC is not attracted against the petitioner because he is the lawful guardian and father of the children.
Justice K Sreenivasa Reddy quashed the case against the father who was accused of kidnapping his own children.
NAME- PRANJAL JHA, COLLEGE- AMITY LAW SCHOOL NOIDA, SEMESTER- 2ND
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