Can’t hold parent guilty of kidnapping, rules High Court

Saurabh Malik

Chandigarh, January 6

In a significant judgment on parental rights, the Punjab and Haryana High Court has held that a parent cannot be deemed guilty of kidnapping as both the parents share equal natural guardianship of a child.

Justice Harpreet Singh Brar of the high court also made it clear that the relationship between a parent and a child would subsist even if the matrimonial ties between the parents have soured.

Mother, father equal natural guardians

A parent cannot be held guilty of the offence of kidnapping as both the parents of the child are her equal natural guardians. Even though the matrimonial relationship among the parents has soured, it is only natural for a parent to want to be in company of her child, especially in absence of an order of the competent court prohibiting the same. High Court bench

The ruling, holding substantial significance for parental rights, especially in cases where the relationship between the parents has turned strained, came in a case where a mother was accused of kidnapping daughter from her grandparents’ house.

Referring to the provisions of the Hindu Minority and Guardianship Act and the Indian Penal Code, the Bench asserted a perusal of the same indicated that a minor was required to be taken away from a lawful guardian’s custody for the offence of kidnapping to be made out. But a mother fell well within the ambit of ‘lawful guardian’, especially in absence of an order passed by a ‘competent court’ divesting her of the same.

“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. Even though the matrimonial relationship among the parents has soured, the relationship between a parent and child subsists and it is only natural for a parent to want to be in company of her child, especially in absence of an order of the competent court prohibiting the same,” the Bench asserted.

In its detailed order, the Bench added Section 6 of the Act categorically stated that the custody of a child up to five years would ordinarily be with the mother. In doing so, the legislature recognised a mother’s indispensable and inimitable role in the upbringing a young child. A mother’s love for her children was selfless and her lap was the God’s own cradle for her children.

As such, children of tender years ought not to be deprived of her love and affection. On the contrary, it would be “very difficult” for a mother to forego the love and affection she was having for her child. An attempt to be with the child could not be seen as an act fuelled by mens rea or criminal intent.

Quashing the complaint and summoning order along with all subsequent proceedings against the mother, the Bench added the child at the time of the alleged occurrence was only three. As such it would be in the minor child’s best interest to be in her mother’s custody in view of Section 6 of the Act.