Parent cannot be held guilty of kidnapping own child: Punjab and Haryana High Court

A parent cannot be held guilty of kidnapping his or her own child, observed the Punjab and Haryana High Court recently while quashing a complaint accusing a woman of kidnapping her child from the residence of her in-laws..Justice Harpreet Singh Brar observed that to establish the offence of kidnapping, the minor child should have been 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 proceeded to hold. .The Court was dealing with a case where the relations between the parents of a minor girl had become strained. At one point in time, the mother of the child also filed a domestic violence complaint against her husband and in-laws, although this case was later settled in 2015. In 2018, the mother of the child was accused of hatching a conspiracy to kidnap her then three-year-old child from the residence of her father-in-law with the assistance of certain individuals.A criminal case was filed against the woman (mother of the child), her parents, sister, and brother, accusing them of kidnapping, house trespass and criminal conspiracy. In the same year, a trial court summoned the woman for trial, but she failed to appear. The woman submitted that she was not keeping well and, therefore, could not appear before the trial court. In June 2022, the trial court issued a non-bailable warrant against the woman.Meanwhile, in April 2022, the High Court granted custody over the minor child to the mother after she challenged a family court order in favour of her husband..The same year, the woman filed a petition before the High Court to quash the 2018 criminal case against her and the summons issued to her in the matter.While dealing with this petition, the High Court emphasized that despite issues in the parents' marriage, the parent-child relationship persists and it is only natural for a parent to seek their child's company, especially when no court order prohibits it..The Court further noted that Section 6 of the Hindu Minority and Guardianship Act, 1956 explicitly dictates that the custody of a child under the age of five years should generally be with the mother. The legislature acknowledges the vital and irreplaceable role of a mother in the upbringing of a young child through this provision, the Court opined."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," the Court further observed..The Court added that since the child was only three years old at the time of the alleged incident, and considering Section 6 of the Hindu Minority and Guardianship Act, it would be in the best interest of the child for the mother to have custody. .With the above observations, the Court quashed the trial court's summoning order and the complaint against the woman (petitioner).Advocate Kuldeep Sheoran represented the petitioner.Advocates Vikas Bharadwa, Kushboo and Padamkant Dwivedi represented the respondents..[Read Order]