Andhra Pradesh High Court: The accused filed a criminal petition to quash the proceedings for offences punishable under Section 363 and 34 of Penal Code, 1860 (‘IPC’). While exercising its criminal jurisdiction, the Single Judge Bench of K. Sreenivasa Reddy, J., allowed the petition and quashed the FIR against the accused stating that the aforementioned sections were not attracted against him since he was the father and thus a lawful guardian of the children under the Muslim Law.
In the matter at hand, 2 minors were allegedly kidnapped when the grandfather was bringing back the children from school. However, the accused stated that the offence of kidnapping would not be made out since they were governed by the Sunni School of Mohammedan Law under which the custody of minor children would be with father. The right of custody of the children by mother was subject to supervision and control of the father who was entitled by virtue of his natural guardianship. Hence, taking away of the children by him would not in any way come within the meaning of ‘kidnapping’ so to attract the offence punishable under Section 363 of IPC.
The Court navigated through the provision of 361 of IPC which stated that whoever takes or entices any minor under sixteen years of age if a male, or under 18 years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind without the consent of such guardian is said to have committed the offence of kidnapping from lawful guardianship.
The Bench noted that a lawful guardian includes a person who is lawfully entrusted with the care or custody of such minor. Since the parties were Muslims, they were governed by Mohamadan Law. The mother was entitled to the custody of male child until the child reaches the age of 7 years under the Sunni School of Mohammedan Law, and 2 years under the Shia School.
The Court further noted that under the Mohammedan law, the mother was entitled to the custody of her minor child only up to a certain age, and the same was according to the sex of the child. It was an admitted fact that she was not the natural guardian, and the father alone was the natural guardian.
The Bench stated that Section 361 IPC speaks of ‘lawful guardianship’ and taking of a minor out of the keeping of the lawful guardian. That will not make the father criminally liable if he takes the child from the custody of the mother, the reason being that when the father takes the child from the custody of the mother, he is only taking the child to the custody of the lawful guardianship.
The Court therefore, held that since the parties were governed by the Mohamadan Law, the father was the lawful guardian of his male children during their minority.
The Bench kept into consideration the fact that the children were living with their grandfather and the mother was working at Hyderabad. “In such circumstances, father who happens to be the lawful guardian of the children, takes away the children from the grandparents would not in any way come within the purview of kidnapping. The right of the mother to the custody of the children is not absolute right and that right is not superior to the right of lawful guardian.”
With the above observation, the Court stated that subjecting the petitioners to undergo criminal trial would be unjustified leading to abuse of process of law, thus, quashed the FIR for the offence under Section 363 IPC since he was the father and the lawful guardian of the children
[Mohammed Asif Ahammad v State of Andhra Pradesh, 2023 SCC OnLine AP 651, decided on 17-04-2023]
Advocates who appeared in this case :
For the petitioner- Advocate Varun Byreddy;
For the respondent- Advocate Janakirami Reddy and Public Prosecutor.
