Constituting a significant portion of cases filed before courts in India, displeasingly, are matrimonial disputes, where, oft-times, spouses resort to crafty and immoral methods, under the guise of a (seemingly) perfectly legal recourse, to garner leverage over the other. Unfortunately, a child from the wedlock is often exploited to garner a severer leverage. In a recent litigation before the Bombay High Court (“Court”), arising out of a distorted marriage, the Court analysed the dynamics surrounding a father's custodial rights when juxtaposed with the accusations of kidnapping leveled against him by his estranged wife.

Central to this dispute is a three (3) year-old child, who became the focal point of contention as an aggrieved mother lodged a complaint accusing the father of kidnapping their child, upon which an FIR was registered under Section 363 of the Indian Penal Code (“IPC”). At the crux of the dispute, laid the question: whether the father could be booked for kidnapping under the IPC?

It was argued on behalf of the father that his actions do not satisfy the requirements as set down in Section 361 of the IPC as he is the father and the natural guardian of the child.

The Court, at the outset, analysed Section 361 of the IPC and highlighted that to be charged with the said offence, the person should fall within the conspectus of the terms “lawful guardian”. The Court further comprehensively centered its analysis on the interpretation of the Hindu Minority and Guardianship Act, 1956, and Guardians and Wards Act, 1890, along with the intricate interplay of rights and responsibilities between natural and lawful guardians in matters concerning child custody, and said that it is abundantly clear that father is the natural guardian and the offence under Section 361 of the IPC would be complete if the child was taken out of custody of a lawful guardian. The Court noted that the parties involved in the case were governed by Hindu Law, and according to the Hindu Minority and Guardianship Act, 1956 (“the Act”), the father’s preeminence as the natural guardian is writ-large. Whilst highlighting that, though, Section 6(a) of the Act grants custody of a minor up to the age of 5 years to the mother, the Court unequivocally affirmed that, in the absence of a categorical prohibition - by way of a court order - the father, who shares equal guardianship with the mother, cannot be charged with kidnapping for taking custody of his own child. The Court further fortified its view with the judgment of the Hon’ble Orissa High Court in Shri Ashok Kumar Seth vs. State of Orissa, and amongst various other, and emphasized that a father, in his capacity as the natural guardian, should not be held liable for the alleged offence of kidnapping, especially in the absence of a categorical court order which prevents him from doing so.

Therefore, the Court held that the father's assumption of custody of the child effectively got transferred from the mother's lawful guardianship to his own (lawful guardianship), deeming the continued prosecution in the said case to be an abuse of the court's process, as it quashed the FIR registered against the father - allowing the application of the father.

In conclusion, the said judgment brings to fore the disheartening reality/trend within the realm of matrimonial disputes where unpleasantness between a husband and wife, and the immoral manipulation of familial bonds for strategic advantage(s), exploits the vulnerability of minors - caught in crossfire. In view of the plight of such helpless, innocent and oblivious children, it is imperative for the legislature to introduce rules/regulations/act, which is aimed at protecting the interests of children of couples in matrimonial disputes.

By - Vaibhav Mehra