The Andhra Pradesh High Court recently held that when the father takes the child from the custody of the mother, he is only taking the child to the custody of lawful guardianship, and therefore, such acts of the father will not render him criminally liable.

A Single Judge Bench of Justice K. Sreenivasa Reddy observed that “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”.

“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”, added the Bench.

In this case, an FIR was registered under Section 363 read with Section 34 IPC against the Petitioner (father) based on a complaint filed by the second Respondent (de facto complainant – mother), that the Petitioner had kidnapped her children while they were returning from school. This was opposed by the Petitioner, contending that being the natural guardian of the kids, taking away of the children by their father would not in any way come within the meaning of kidnap so to attract the offence punishable under Section 363 IPC.

After considering the submissions and perusing the provision of Section 363 IPC, the High Court observed 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 keeping 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 legal guardianship.

The High Court admitted that both the children are minors in the present case. Therefore, as per the explanation to Section 363 IPC, a lawful guardian includes a person who is lawfully entrusted with the care or custody of such a minor.

Since the parties are Muslims and they are governed by Mohammadan law, the High Court noted that the mother is entitled to the custody of the 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.

“Under the Mohammedan law, the mother is entitled to the custody of her minor child only up to a certain age, and it is according to the sex of the child. It is an admitted fact that she is not the natural guardian. On the other hand, the father alone is the natural guardian. In case if the father is dead, his executor is the legal guardian according to the Sunni law”, added the Court.

Therefore, finding that the children are under the care of the de facto complainant who happens to be the mother of the children, and she is residing elsewhere because of her job, the Bench concluded that the 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.

Accordingly, the High Court held that the offence under Section 363 IPC is not attracted against the Petitioner, since he is the father and is lawful guardian of the children.

Cause Title: Md Asif Ahmed v. State of Andhra Pradesh

Click here to read/download the Order






Andhra Pradesh High CourtJustice K. Sreenivasa Reddy

Pankaj Bajpai