Muslim father taking away minor male children above 7 years from mother's custody will not amount to kidnapping: Andhra Pradesh High Court

The Andhra Pradesh High Court recently observed that if a Muslim father takes away his minor male children aged above 7 years from mother's custody, it will not amount to kidnapping as he is the lawful guardian under Muslim law [Md. Asif Ahammad v State of Andhra Pradesh].

Single-judge Justice K Sreenivasa Reddy while quashing kidnaping case against father observed that,

"A legal guardian is certainly a lawful guardian, and if he takes a minor child from the custody of the mother who is certainly not the legal or natural guardian, though entitled to the custody of the child until it reaches a particular age, he cannot be said to commit the offence of kidnapping."

In the present case, the parties are governed by Mohammedan law and therefore the father is the lawful guardian of his male children during their minority and the mother can claim custody of such child only till he completes 7 years of age, the bench said.

The Court was hearing a petition to quash the first information report (FIR) lodged in 2022 against the father for the offence of kidnapping under the Indian Penal Code (IPC).

It was alleged that he along with four other persons had kidnapped his two sons aged 10 years and 8 years who were in the custody of their mother.

The counsel for the petitioners submitted that even if all allegations are accepted to be true, still the offence of kidnapping would not be made out for the reason that the petitioners being Sunni Muslims are governed by the Sunni School of Mohammedan law

As per the same, father taking male children aged above 7 years will not amount to kidnapping since he is the lawful guardian of such children under Mohammedan law.

The counsel argued that the father and the paternal uncle of the children, have taken away the children who were aged about 8 years and 10 years from their maternal grandparents.

Hence, father taking away children by their father would not in any way come within the meaning of kidnapping so to attract the offence punishable under Section 363 IPC, the counsel added.

In the instant case, though both the children are minors, they were above the age of 7, the Court noted.

"Under the Mohammedan law, the mother is entitled to the custody of her minor child only up to a certain age, and it is according to the sex of the child. It is an admitted fact that she is not the natural guardian. On the other hand, the father alone is the natural guardian. In case if the father is dead, his executor is the legal guardian according to the Sunni law," the Court said.

According to the report given to police, the children are living with the parents of mother, whereas, she is working at Hyderabad, the Court said

In such circumstances, if the father who happens to be the lawful guardian of the children, takes away the children from the grandparents, it would not in any way come within the purview of kidnapping, the Court made it clear.

"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. It is clear to the extent that it is the father alone that had taken away the children from the custody of the de facto complainant’s parents," it was observed.

Subjecting the petitioners to undergo the rigmarole of criminal trial would be totally unjustified leading to abuse of process of law as no offence is made out, the Court observed.

Hence, it proceeded to quash the case of kidnapping.

[Read Order]