One Parent Who Is Lawful Guardian If Takes The Child From Custody Of Other Parent, Wouldn't Amount To Kidnapping: Telangana HC Reaffirms

The Telangana high court on Wednesday (January 8) reiterated that if a parent who is lawful guardian of the child, takes a child away from the custody of the other parent, it would not amount to kidnapping and does not call for registering an FIR under 137(2) of the BNS.

Section 137(2) BNS states that whoever kidnaps any person from India or from lawful guardianship shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Relying on an order passed by the Bombay High court in a 2023 petition, Justice Juvvadi Sridevi noted:

"Having heard both sides and perused the material on record, it appears that the petitioner herein, who is the mother of the minor child, has taken the minor child along with her, which amounts to taking the child to another lawful guardianship of the mother. The aforesaid judgment is squarely applicable to the facts of the present case, as in the present case, the petitioner, who is the natural mother of the minor child, is also a lawful guardian, along with the father. Therefore, there shall be stay of all further proceedings against the petitioner/accused No.1 in F.I.R.No.1236 of 2024 of P.S. Panjagutta, till 13.02.2025."

The petitioner stated that through her marriage with the defacto complaint/husband, she gave birth to two daughters. She claimed that she was "nicked" by her husband in May 2023 along with her two daughters. Since then she has been staying with her children at her parents home. Subsequently in June 2023 the husband allegedly took away both her daughters. She claimed that she lodged a complaint but the concerned police station refused to register it. She thereafter approached the high court and family court seeking custody of the children.

She claimed she had filed a habeas corpus plea wherein the high court in December 2023 said that the custody of the children with the husband was not illegal detention granting her liberty to approach family court. She alleged that she was granted visitation rights by family court but her husband did not comply with it. The petitioner claimed that on one day when he did permit the younger daughter to meet her, the daughter was crying continuously and refused to leave her. Owing to the same, the petitioner said that she took her younger daughter along with her. In response to this the husband lodged a kidnapping case against her.

Subsequently, the petitioner said, when the husband lodged a habeas corpus plea, she appeared before the high court in December, 2024 and tendered an unconditional apology to the court for her actions and returned her daughter to her husband/de-facto complainant.

Despite the same, the petitioner alleged that the police officials came to her place of work, shut it down and also forcefully brought her to the police station on the pretext of the crime registered against her. She claimed that the police was threatening to arrest her to implicate her in further false cases, pursuant to which she moved the high court seeking stay of all further proceedings against her. 

The counsel on behalf of the petitioner argued that the petitioner's actions were not motivated by criminal intent but were solely aimed at ensuring the safety and well-being of her minor child. 

The counsel relied on a judgement passed by the Bombay High Court in Criminal Application No.552 of 2023, wherein, it was held that the effect of natural father taking away the child from custody of the mother in real sense amounts to taking a child from the lawful guardianship of the mother to the another lawful guardianship of the father. Natural father of the minor child is also a lawful guardian along with the mother, and therefore, father of the minor cannot be said to have committed the offence under Section 361 of IPC so as to made him punishable under Section 363 of Cr.P.C, the counsel said. 

Conceding with the same, the bench noted that a mother, just like a father is a lawful guardian. Hence the court stayed all further proceedings relating to the FIR till February 13. 

Case title: X v/s Y

Counsel for petitioner: Y. Soma Srinath Reddy

Counsel for respondent: Addl. PP Jithender Rao Veeramalla

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