The Punjab and Haryana High Court has clarified that a parent cannot be accused of kidnapping their own child, as both mother and father are equal natural guardians under Indian law.
Justice Harpreet Singh Brar, while addressing a habeas corpus petition, observed:
“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.”
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The case involved a 12-year-old boy, whose uncle filed a habeas corpus plea claiming the child had been taken by the mother from his habitual residence where he was living with the father. The mother, on the other hand, submitted that the child himself made a distress call to her, stating that the father had left him in the care of house help. In response, she traveled from Australia to take her son.
The Court noted that a guardianship petition was already pending before the Family Court. This ongoing legal dispute over custody meant neither parent could claim exclusive custody until a formal order was passed.
Referring to Section 361 of the Indian Penal Code (IPC), which defines kidnapping from lawful guardianship, the Court emphasized that the concept of "lawful guardian" plays a critical role in such matters. In this case, since both parents are legally recognized as natural guardians, the element of unlawful custody was absent.
Justice Brar further stated:
“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.”
He also expressed concern over the increasing trend where estranged parents file habeas corpus petitions to gain custody of children, sidestepping ongoing family court proceedings.
The Court also referred to Section 6 of the Hindu Minority and Guardianship Act (HMGA), which specifies that a child under five years of age should ordinarily remain in the custody of the mother. The judge observed that this statutory provision acknowledges the critical role of a mother in a child's upbringing.
In strong words, the Court stated:
“Mother's love for her children is selfless and the lap of the mother is God's own cradle for them. Therefore, children of tender years ought not to be deprived of said love and affection.”
Considering the fact that the child in question was 12 years old and capable of expressing his preferences, the Court held that the child's welfare and wishes must be given due importance.
In conclusion, the Court held that since the guardianship petition is still under consideration and no court order has been issued altering custody arrangements, the mother’s action of taking her child cannot amount to kidnapping. The matter, being one of child custody, falls under the jurisdiction of the Family Court, not under criminal charges like kidnapping.
“It would be just and prudent for the 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.”
In the light of the above, the Court dismissed the plea and refused to interfere
Ms. Arundhati Katju, Senior Advocate (through V.C.) with Mr. Anand V. Khanna, Advocate
and Mr. Harmanbir S. Sandha, Advocate for the petitioner.
Mr. Manjinder Singh Saini, Advocate fore respondent No.4.
Mr. Ramesh Kumar Ambavta, AAG, Haryana.
Title: Raja Rekhi v. State of Haryana and others
