Under Mohammedan law, 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 recent ruling by the Andhra Pradesh High Court stated that, according to Muslim law, a Muslim father taking his minor male children who are above 7 years old from the custody of the mother does not constitute kidnapping, as the father is considered the lawful guardian. This decision was made by Single-judge Justice K Sreenivasa Reddy, who quashed a kidnapping case against the father.
“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.”
The bench, in consideration of the fact that the parties are governed by Mohammedan law, stated that the father is the lawful guardian of his male children during their minority, and the mother’s custody claim only extends until the child completes 7 years of age.
The Court was reviewing a petition to dismiss a first information report (FIR) filed in 2022 against the father for the offense of kidnapping under the Indian Penal Code (IPC). The allegation was that the father, along with four other individuals, had kidnapped his two sons who were 10 years and 8 years old and were under the custody of their mother.
The counsel representing the petitioners argued that even if all the allegations were true, the offense of kidnapping would not apply, as the petitioners, being Sunni Muslims, are governed by the Sunni School of Mohammedan law. According to this school of law, the father taking male children above 7 years old does not constitute kidnapping, as the father is the lawful guardian.
The counsel further argued that the father and paternal uncle of the children had taken them away from their maternal grandparents, and thus, the father taking the children by himself would not meet the definition of kidnapping under Section 363 IPC.
The Court noted that although both children were minors, they were above the age of 7 in this case.
“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.
The Court clarified that, based on the report provided to the police, the children were residing with the maternal grandparents while the mother was employed in Hyderabad. In this situation, if the father, who is recognized as the lawful guardian of the children, takes them away from the grandparents, it would not be considered as kidnapping under any circumstances.
“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.
The Court observed that subjecting the petitioners to undergo a criminal trial would be entirely unjustified and would amount to an abuse of the legal process, as no offense has been established. Therefore, the Court proceeded to quash the kidnapping case.
Source: https://www.barandbench.com/news/litigation/muslim-father-taking-minor-male-children-above-7-years-mothers-custody-not-kidnapping-andhra-pradesh-high-court