Parent cannot be implicated for kidnapping own child: Punjab High Court on illegal custody case

Chandigarh: A parent cannot be implicated for kidnapping their own child as both the parents are equal natural guardians, the Punjab and Haryana High Court has held while dismissing a plea seeking release of a 12-year-old boy from the alleged illegal custody of his Australia-based mother.

A perusal of provisions of Section 361 of the IPC and Section 6 of the Hindu Minority and Guardianship Act, 1956 indicates that for an incident to be considered as kidnapping, it is necessary that the minor child is taken away from the custody of a 'lawful guardian'.

However, a mother falls well within its ambit, especially in absence of an order passed by a competent court, divesting her of the same.

"This court is of the view that a parent cannot be implicated for kidnapping their own child as both the parents are his equal natural guardians," the court held.

The observations were made in the matter involving the boy, whose Gurugram- based uncle filed a petition before the court accusing the child's mother of "illegally" taking away the child from his custody.

The petitioner had sought a direction to the state to ensure release of the minor son of his brother "from the illegal custody" of the child's mother.

The petitioner submitted that on April 24, the child's father was attending a business conference in Belgium when the boy's mother "broke into his office and stole the passport of the child and woke up the minor in the wee hours of the day and took him away from his habitual residence".

The petitioner called the police "but was met with a nonchalant response".

He said in his plea that the woman had falsely told the police that she has merely taken the child for an hour to meet her parents in Delhi. However, her mother does not reside in Delhi. Further, she has not provided any details about the whereabouts of the child either to him or the father, the petitioner submitted.

Considering the fact that she took the child's passport with her, she intends to take him to Australia, where she is currently residing. The child's parents are already in litigation regarding his custody as a guardianship petition is pending adjudication before a family court in Gurugram, the petitioner submitted.

On the other hand, the counsel of the child's mother contented that it was her boy who called her requesting her to take him as his father had gone to Belgium, leaving him with the house help.

Being a mother, she flew back from Australia, for the comfort of her child. Further, the screenshots of the call details as well as messages exchanged between the child and his mother would reflect the minor himself had asked her to book tickets, the counsel submitted on behalf of the child's mother.

It was also submitted by the counsel that the woman is also a guardian of the minor child and till the guardianship petition is decided, she is entitled to hold his custody.

Justice Harpreet Singh Brar, in his order dated April 29, mentioned that while adverting to the facts of the case, it appears that the child's mother ordinarily resides in Australia.

The child was left with the house help by his father while he was on a business trip to Belgium. Perturbed by the same, the boy called his mother, in distress and she flew all the way from Australia to be with him, the judge observed in the order.

"Even though the matrimonial relationship between the parents has soured, the relationship between a parent and child subsists and it is only natural for a mother to give in to her maternal instincts and respond to the calls of her distressed child.

"It would also be rather unfair to expect her to leave her minor child in a place where he is uncomfortable, more so in absence of a judicial order prohibiting her from intervening," the court held.

Further still, since the guardianship petition is pending adjudication before the family court, father of the child, cannot claim sole custody over him either, the judge said.

"... While deciding the matter of custody of a child, the paramount consideration shall always remain his welfare. Thus, it would be just and prudent for this Court to take into account the wishes and well being of the detenu, who is 12 years old, and capable of forming a rational opinion about his living situation.

"As such, at this stage, any interference by this court would be unwarranted. Accordingly, the present petition is dismissed...," the court said.