Can’t accuse parent of kidnapping own child in absence of custody order: HC

The Punjab and Haryana High Court has categorically held that no parent could be accused of kidnapping his own child unless a judicial order expressly divests him of guardianship. Dismissing a habeas corpus petition filed by the paternal uncle of a 12-year-old boy, Justice Harpreet Singh Brar asserted that both mother and father are equal natural guardians of their child and the matter of custody must be determined by the family court with the child’s welfare as the paramount consideration.

“It is trite law that welfare of the minor would reign supreme while deciding upon the matter of his custody,” Justice Brar observed, while noting that the Supreme Court had consistently held that the welfare and interest were of paramount consideration in child custody matters.

Going into the background of the matter, Justice Brar observed that the paternal uncle was seeking directions for the boy’s release from the alleged illegal custody of his mother residing in Australia. The petitioner contended that the child had been removed from his habitual residence by the mother without the consent of the father, who was on a business trip abroad.

Justice Brar held: “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’. However, a mother falls well within its ambit, especially in the absence of an order passed by a competent court, divesting her of the same.” The court reiterated that a parent could not be implicated for kidnapping own child as both were equal natural guardians.

Dealing with the larger pattern of litigation in child custody disputes, the Bench also cautioned against the rising use of habeas corpus writ petitions in matrimonial conflicts. “This court has noticed an increasing tendency amongst disgruntled parents to move a writ petition in the nature of habeas corpus, in order to settle custody of their children,” Justice Brar observed.

Referring to the emotional contours of the case, Justice Brar asserted that the mother flew from Australia after the boy, apparently left in a domestic help’s care during his father's foreign business trip, called her in distress. “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,” Justice Brar asserted.

Dismissing the petition, the Bench added it would also be rather unfair to expect the mother to leave her minor child in a “place where he is uncomfortable”, more so in the absence of a judicial order prohibiting her from intervening.

“A mother’s love for her children is selfless and the lap of the mother is God’s own cradle for them. Therefore, children of tender years ought not to be deprived of said love and affection,” Justice Brar added.