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.
According to a recent judgment from the Andhra Pradesh High Court, taking minor male children who are above 7 years old from the custody of the mother by a Muslim father does not amount to kidnapping under Muslim law, as the father is considered the lawful guardian. The ruling was issued by Single-judge Justice K Sreenivasa Reddy, who dismissed 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, taking into consideration that the parties are governed by Mohammedan law, affirmed 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 examining a petition seeking the dismissal of 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 others, had taken away his two sons who were 10 and 8 years old and were under the custody of their mother.
“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 elucidated that as per the police report, the children were residing with the maternal grandparents while the mother was employed in Hyderabad. In such a scenario, if the father, who is acknowledged as the lawful guardian of the children, removes them from the grandparents’ custody, it would not be deemed 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 noted that subjecting the petitioners to a criminal trial would be entirely unwarranted and would constitute an abuse of the legal process, as no offense has been established. Accordingly, the Court proceeded to dismiss 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
