Punjab and Haryana High Court ruled that a parent cannot be charged with kidnapping their own child. Both parents are equal natural guardians unless a court order says otherwise.
Amritsar: The Punjab and Haryana High Court recently gave an important decision stating that a parent cannot be accused of kidnapping their own child.
This ruling came while the court was hearing a petition regarding a 12-year-old boy, whose uncle had claimed that the child was taken away “illegally” by his mother, who lives in Australia.
The court dismissed the petition and clarified the legal position on parental guardianship and custody.
Justice Harpreet Singh Brar, who delivered the judgment on April 29, said that the mother normally resides in Australia, but she came to India after her son, who was left with house help, called her in distress.
According to the High Court, both parents are equal natural guardians of a child, and unless there is a specific court order removing this right, a parent cannot be said to have kidnapped their own child.
The judge looked into Section 361 of the Indian Penal Code and Section 6 of the Hindu Minority and Guardianship Act, 1956. These laws make it clear that for something to be called kidnapping, a child must be taken away from the custody of a “lawful guardian.”
The Court observed,
“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’.”
Further, the Court added,
“However, a mother falls well within its ambit, especially in absence of an order passed by a competent court, divesting her of the same.”
Therefore, the Court clearly 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.”
The case was brought before the Court by the child’s uncle, who lives in Gurugram. He had filed a petition requesting the release of the boy from what he called the “illegal custody” of the mother.
He claimed that the incident took place on April 24, when the boy’s father was away in Belgium for a business meeting.
According to the uncle, the mother entered the father’s office, took the child’s passport, woke the boy early in the morning, and took him away from his usual place of residence.
The uncle also claimed that he contacted the police, but they were not serious about his complaint. He said that the mother lied to the police, telling them she had taken the boy for just an hour to meet her parents in Delhi.
However, the uncle argued that her mother does not live in Delhi and that the woman had not given any details about where she and the boy were staying.
He further alleged that since she took the boy’s passport, she planned to take him to Australia, where she currently lives. He added that the boy’s parents are already fighting over custody in a family court in Gurugram.
On the other hand, the mother’s lawyer gave a different version of events. The lawyer said that the boy himself had contacted his mother, saying he was upset and alone because his father had left him with house help and gone abroad. Responding to this, the mother flew from Australia to be with her child.
Her lawyer said,
“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.”
The lawyer continued,
“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 mother’s lawyer also argued that until the family court decides the guardianship petition, the mother has equal rights over the child.
“The woman is also a guardian of the minor child and till the guardianship petition is decided, she is entitled to hold his custody.”
The judge said,
“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 acknowledged that even if the parents are not getting along, the bond between a parent and a child remains.
“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.”
The Court added,
“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 judge also noted that since the guardianship matter is still pending in family court, the father cannot claim full custody.
“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.
The Court emphasized that the child’s happiness and comfort must always be the top concern in custody matters.
“… 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.”
Finally, the Court concluded,
“As such, at this stage, any interference by this court would be unwarranted. Accordingly, the present petition is dismissed…”
This case reaffirms that unless there is a clear court order deciding custody, both parents have equal rights over their child, and one cannot be accused of kidnapping their own child. The welfare of the child continues to be the guiding principle in such matters.
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