The Nagpur bench of the Bombay High Court has ruled that a biological father cannot be booked for kidnapping his minor child in the absence of legal prohibition and quashed the FIR registered against him by his estranged wife.
In the absence of any “prohibition order” of any court, the father was a lawful guardian along with the mother and hence he cannot be booked for taking away his own minor child from the custody of the mother, observed a division bench of Justices Vinay Joshi and Valmiki SA Menezes in its order of October 6. The order was made available on Thursday.
“The expression 'Guardian' encompasses any person who cares for a minor. Therefore, in our view, in the absence of a legal prohibition, a father cannot be booked for the offence of kidnapping his own child,” the bench noted.
The HC was hearing a petition filed by the father, 35, seeking quashing of the FIR registered against him on March 29 by Gadge Nagar Police Station, Amravati City, for kidnapping his three-year-old son. The complaint was registered by his estranged wife.
Advocates Pavan Dahat and AB Moon, appearing for the man, argued that he was the child's father and natural guardian and hence he cannot be booked on charges of kidnapping.
The judges observed that the effect of the biological father taking away the child from the custody of the mother only amounts to taking the child from the custody of one natural guardian to another.
Natural guardian under Hindu Minority and Guardianship Act
The court referred to the definition of natural guardian of a minor under the Hindu Minority and Guardianship Act and said for a Hindu minor, the father is a natural guardian and after him, the mother.
“It is abundantly clear that the father is a natural guardian of the minor. It is not a case that the mother (of the child) was lawfully entrusted with the care or custody of the minor by an order of any court,” the bench underlined.
The bench also remarked: “In case at hand, the applicant is a natural guardian. Moreover, he is a lawful guardian too along with the mother, therefore, in absence of any prohibition by the order of the competent Court, the applicant father cannot be booked for taking away his own minor child from the custody of his mother.”
“Therefore, in our view in absence of legal prohibition, a father cannot be booked for the offence of kidnapping of his own child,” the bench said while quashing the FIR adding that “continuation of such prosecution amounts to abuse of the process of the Court”.
