IMPORTANT POINT
Father being a natural and lawful guardian, removal by him of his son below 5 years of age from his mother is not an offence under Section 361 of IPC.

JUDGMENT (ORAL)

Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent-State.

2. By way of this application under Section 482 of Cr.P.C., the applicants are seeking quashment of filed in connection with the FIR being C.R. No. I-156 of 2015 registered with Anand Town Police Station, Dist: Anand for the offences punishable under Sections 452, 363 and 114 of the Indian Penal Code.

3. Facts and circumstances giving rise to filing of present application are that, the applicant no.1 is the husband of respondent no.2, whereas applicant no.2 is the driver, allegedly employed by the applicant no.1. The marriage took place on 22.06.2005. Out of wedlock, two sons namely Adi aged about 8 years and Arsh aged about 3 years were born. Matrimonial dispute arose between the parties as the wife insisted the applicant to settle at abroad which the applicant no.1 refused since the entire family of the applicant and his business is well set at State of Madhya Pradesh. In the month of January, 2015, the wife had left the matrimonial home on the petty issue and upon intervention of the elderly persons of the family, dispute was resolved and she again came at the matrimonial home. In the month of April, 2015, she again without informing the applicant-husband voluntarily left the matrimonial home along with her minor son Arsh aged about 3 years and came at Anand, at her parental home. At the time of leaving the matrimonial home, she was pregnant. It is in these background facts, the impugned FIR is being lodged on 22.06.2015, alleging inter-alia, that, the husband-accused and his driver illegally entered into house and took away the minor son namely Arsh aged about 3 years from the lawful custody of her without her consent and thereby committed the offence of kidnapping and house trespass. The applicant and his driver apprehended in the alleged offence and after completion of investigation, chargesheet came to be filed for the offences as referred above.

4. Mr. M.U. Vora, learned counsel appearing for and on behalf of the applicants submitted that, the allegations made in the FIR even if they are taken at their face value and accepted in their entirety, do not prima-facie constitute any offence or make out a case against the applicants as, the facts mentioned in the FIR do not disclose a cognizable offence, justifying an investigation by the police under Section 156(1) of the Code. Referring to statutory provisions of the Indian Penal Code, learned counsel Mr. Vora would submits that, the applicant is the father of the child, alleged to have been kidnapped by him and therefore in law, he is entitled to the lawful custody of the child and therefore, the allegations do not come within the scope of Section 361 of the Indian Penal Code and his act in taking away the child from the mother does not amount to an offence of kidnapping from lawful guardianship.

5. Mr. Vora, learned counsel would further submits that the FIR has been filed with oblique and ulterior motive to harass the applicants. In fact, the respondent no.2-wife left the matrimonial home without informing the applicant, for which, missing complaint was also filed by the applicant and when he came to know that, the respondent no.2 is at her parental home at Anand, he came there to convince and bring back to her at matrimonial home as she was pregnant by five months and no one is there for looking after the wife and in such circumstances, the applicant no.1 requested the wife to give custody of minor son Arsh. Thus, therefore, he would urge that, later on, by fabricating the story of house trespass and kidnapping of minor son, the questioned FIR was being filed which amounts to sheer abuse of process of law and Court.

6. In the aforesaid contentions, learned counsel Mr. M.U. Vora submitted that, as per settled law, no offence can be said to have been made out against the applicants and therefore, it is a fit case to exercise inherent po