Mother Taking Custody Of Child From Father Doesn't Amount To Kidnapping: Telangana HC

The Telangana High Court has held that a lawful guardian taking custody of a child from another lawful guardian doesn't amount to kidnapping.

The Court was considering an Interlocutory Application filed by a Mother seeking stay on proceedings initiated against her for the offence under Section 137 (2) ot Bharatiya Nyaya Sanhitha,2023.

The single-bench of Justice Juvvadi Sridevi observed, "...it appears that the petitioner herein, who is the mother of the minor child, has taken the minor child along with her, which amounts to taking the child to another lawful guardianship of the mother."

The Applicant was represented by Advocate Y. Soma Srinath Reddy while the Respondent was represented by Additional Public Prosecutor Jithender Rao Veeramalla.

Counsel for Applicant submitted that the Applicant being biological mother of the minor child acted in the interest of her child out of her maternal instincts. He further submitted that the remedy available to the de facto complainant for violation of custody order is to approach the Family Court, however, instead of approaching the Family Court, the de facto complainant has foisted the present complaint against the petitioner with all false allegations.

The Counsel relied on the judgment of High Court of Bombay in Criminal Application No.552 of 2023, wherein, it is held that the effect of natural father taking away the child from custody of the mother in real sense amounts to taking a child from the lawful guardianship of the mother to the another lawful guardianship of the father. Natural father of the minor child is also a lawful guardian along with the mother, and therefore, father of the minor cannot be said to have committed the offence under Section 361 of IPC so as to made him punishable under Section 363 of Cr.P.C.

The Court accepted the submissions of the Counsel for the Applicant and noted that the judgement cited squarely applies to the present case.

"The aforesaid judgment is squarely applicable to the facts of the present case, as in the present case, the petitioner, who is the natural mother of the minor child, is also a lawful guardian, along with the father," it observed.

The Application was accordingly allowed.

Cause Title: Dr. B. Priyanka vs. The State of Telangana

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