Andhra Pradesh Court: The right of the mother to the custody of the children is not absolute right

The Andhra Pradesh High Court recently quashed a First Information Report (FIR) against a father for allegedly kidnapping his two sons from their mother’s custody. [Md Asif v. State of Andhra Pradesh]


Brief facts of the case


On 23rd September 2022, the Petitioner along with four persons came in a vehicle and kidnapped the children, Ahammad aged 10, and Arshad aged 8 years from the school. When doing so the Petitioner pushed the father of Respondent No. 2 who had come to pick up the kids. On the same day, the Respondent No. 2 gave a report to the police and a case was registered against the Petitioner and others.


Learned Counsel for Petitioners


The allegation against the Petitioner would amount to offence stated the Learned Counsel. The Petitioners belong to the Sunni Muslims and as per the Sunni School of Mohammedan law, the mother is entitled to the custody of her male child till he completes the age of Seven (7) years. It is the father who is the primary and natural guardian of the minor children. Also, the right of custody of the children by the mother and the female relations are subject to supervision and control of the father. Hence, taking away the children by their father would not mean kidnapping nor attracting the offense under Section 363 of the Indian Penal Code.


Learned Counsel for Respondent


The Learned Counsel contends that the children are under the custody of their mother and even if the father who is a natural guardian takes away the minor children from the mother’s custody, he shall be liable to be punished. Further, he stated that the investigation by the police is at the nascent stage and the accusations have to be looked into. 


Court’s observation


After hearing both sides, the court explained that Section 363 of IPC states that whoever takes or entices any minor children under 16 years of age for males and 18 years of age for females, respectively out of the custody without the consent of such guardian is said to have committed kidnapping. 

The court further noted that the above section speaks of ‘lawful guardianship’. The mother only has the right to children’s custody until a certain age after which the father is the natural guardian as per the Sunni law. Hence, this does not constitute to father being held criminally liable for taking the children from the custody of the mother.


The excerpts from the judgment read out as:


“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 complainant’s parents. In view of the above discussion, it is clear that the offence under Section 363 IPC is not attracted against the petitioner, since he is the father and is lawful guardian of the children.”


Justice K. Sreenivasa Reddy concluded by stating that the criminal Petition is allowed and the proceedings against the Petitioner are quashed.

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