Either Parent Can't Be Implicated For Kidnapping Their Own Child As Both Are Equal, Natural Guardians: Punjab & Haryana HC

The Punjab & Haryana High Court has said that a parent cannot be implicated for the offence of kidnapping their own child as both parents are equal natural guardians.

Justice Harpreet Singh Brar said, “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.”

In the present case the habeas corpus plea was filed by the uncle of the 12-year-old boy as he was allegedly taken by his mother from his habitual residence where he was residing with his father.

On the other hand the mother submitted that, the child himself made a distress call to the mother as father had left him with the house help. Hence the mother flew in from Australia to take the child.

The parents of the children were already in litigation qua custody of the child as a guardianship petition is pending adjudication before the the Family Court.

After hearing the submissions, the Court perused Section 361 of the IPC (Kidnapping from lawful guardianship) and said 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.'

Justice Brar pointed that an increasing tendency amongst disgruntled parents to move a writ petition in the nature of habeas corpus, in order to settle custody of their children.

The judge noted the jurisprudence that the welfare and interest of the child are of paramount consideration with respect to custody of a child. 

Section 6 of HMGA categorically states that the custody of minor child upto the age of 5 years shall ordinarily be with the mother. In doing so, the legislature has recognised the indispensable and inimitable role of a mother in the upbringing of a child, added the Court.

The Court observed that, “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.”

Stating that the guardianship petition is pending adjudication before the Family Court, father of the child, cannot claim sole custody over him either, the Court said, “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

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