Parent Cannot Be Held Guilty Of Kidnapping As Both Parents Are Equal Natural Guardians : Punjab & Haryana High Court

The Punjab & Haryana High Court has made it clear that a parent cannot be held guilty of the offence of kidnapping under Section 361 of IPC as both the parents are "equal natural guardian".

While quashing the complaint case against a mother for allegedly kidnapping her 3 years old daughter, Justice Harpreet Singh Brar said that perusal of Section 361 of IPC along with Section 6 of Hindu Minority and Guardianship Act, 1956 indicates that for an offence of kidnapping to be made out, "it is necessary that the minor child is taken away from the custody of a 'lawful guardian.' However, a mother falls well within the ambit of 'lawful guardian,' especially in absence of an order divesting her of the same passed by a competent Court. This Court is of the view that a parent cannot be held guilty of the offence of kidnapping as both the parents of the child are her equal natural guardians."

The Court further added that 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 parent to want to be in company of her child, especially in absence of an order of the competent Court prohibiting the same.

These observations came in response to the plea filed by a mother under Section 482 of the CrPC for quashing the complaint filed under Sections 363, 452 and 120-B of the IPC for allegedly kidnapping her daughter from his father-in-law's house.

It was stated that some matrimonial discord ensued between petitioner and her husband and the petitioner registered a complaint against him and his family, in which he was granted the concession of bail while respondent no. 2 and his wife (mother-in-law of the petitioner) were found innocent during police investigation. The petitioner had also filed a petition under Protection of Women from Domestic Violence Act, 2005.

However, later a compromise was arrived at between the petitioner and her husband in the year 2015 which is recorded by the Delhi High Court. In 2020, she was shunned out of her matrimonial home again. The petitioner filed for guardianship of her minor daughter before the Family Court, Jhajjar where the custody of the child was granted to the her husband.

Later, an appeal was filed before the High Court wherein the Division Bench granted custody of the minor child to the petitioner-mother vide order passed in 2022. 

It was alleged that the mother through some persons took away her daughter from his father-in-law's house. Father-in-law of the petitioner had lodged the complaint against the petitioner, her father, mothers, sister and brother who hatched a conspiracy to kidnap his 3 years old grand daughter in collusion with the unknown man and lady who had visited his clinic.

Considering the petition, the Court observed that Section 6 of HMGA, 1956 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 young child.

"A mother's love for her children is selfless and the lap of the mother is God's own cradle for her children and therefore, children of tender years ought not to be deprived of said love and affection. Per contra it would be very difficult for the mother to forego the love and affection she has for her child and an attempt to be with the said child cannot be seen as an act fuelled by mens rea," stated the Court.

Reliance was placed upon Supreme Court's ruling Rosy Jacob v. Jacob A. Chakramakkal [(1973) 1 SCC 840] and Mausami Moitra Ganguli v. Jayant Ganguli [2008 (4) RCR (Civil) 551] wherein it was held that the welfare and interest of the child are of paramount consideration with respect to custody of a child.

Justice Brar noted that admittedly, at the time of the alleged occurrence, the age of minor child  was "only 3 years as such", in view of Section 6 of HMGA, 1956, it would be in the best interest of the minor child to be in custody of her mother.

 In the light of the above the Court quashed the summoning order and the complaint case.

Appearance: Kuldeep Sheoran, Advocate for the petitioner.

Vikas Bharadwaj, AAG, Haryana.

 Kushboo, Advocate for Padamkant Dwivedi,

Citation: 2024 LiveLaw (PH) 08

Title: X v. State of Haryana & another