IMPORTANT POINT
Right of mother to custody of children is not absolute right and that right is not superior to right of lawful guardian.

ORDER

This Criminal Petition, under Section 482 of the Code of Criminal Procedure 1973, is filed by A1 and A2, to quash the proceedings in F.I.R.No.305 of 2022 of Gooty Police Station, Ananthapuramu District, registered for the offence punishable under Section 363 r/w 34 IPC.

2. Brief facts of the case are as follows;

On 23.9.2022 at 12.30 P.M., at Jangala Colony Arch, Tadipatri Road, Gooty Town, the petitioners along with four others came in a car and kidnapped the children by name 1. Md. Atheek Ahammad, aged 10 years, 2. Md. Arshad Ahmmad, aged 8 years, of the de facto complainant/2nd respondent herein, by pushing away the father of the de facto complainant/2nd respondent who was bringing the children from school. On that the de facto complainant/2nd respondent gave a report to the police and based on the said report a case in crime No.305 of 2022 was registered by police against the petitioners and others.

3. Learned counsel for the petitioners submits that even accepting the entire allegations to be true, still the offence under Section 363 r/w 34 IPC would not be made out for the reason that the petitioners herein are Sunni Muslims, who are governed by the Suni School of Mohammedan law. It is contended that the mother is entitled to custody of her male child until that child completed the age of 7 years under the Sunni School of Mohammedan law and 2 years under the Shia School of Mohammedan law. Under the said provisions, it is the father who is the primary and natural guardian of minor children. Right of custody of the children by the mother and the female relations are subject to the supervision and control of the father who is entitled by virtue of his natural guardianship of the child. According to the prosecution, the petitioner No.1 who is the father and Petitioner No.2 who is paternal uncle of the kids, have taken away the children who are aged about 8 years and 10 years from their maternal grandparents. The natural guardian of the kids is petitioner No.1, the father. Hence, taking away of the children by their father would not in any way come within the meaning of kidnap so to attract the offence punishable under Section 363 IPC.

4. On the other hand, learned counsel for the respondent No.2 contends that the children are in the custody of the mother. Thus, even if father takes away the minor children from the custody of their mother, he is liable to be punished under Section 363 IPC. The accusations that are made in the complaint, certainly attract the offence under Section 363 IPC. He also submits that since the investigation is at the nascent stage, truth or otherwise of the said accusations has to be investigated by the police.

5. Heard both sides and perused the record.

6. On 24.9.2022 at 4.00 P.M., a report was given in the police station stating that on 23.9.2022 at 12.30 P.M., the petitioners herein and four others came in a car and kidnapped 1. Md Atheek Ahmmad, 10 years, 2. Md. Arshad Ahmmad, 8 years old children who are in the custody of the the de facto complainant, by pushing away the father of the defacto complainant. Based on the said report, a case in Crime No.305 of 2022 has been registered for the offence punishable under Section 363 r/w 34 IPC.

7. So as to attract the offence under Section 363 IPC, it is essential to consider Section 361 IPC. Section 361 IPC reads as follows.

361. Kidnapping from lawful guardianship.—Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under 2[eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Explanation to the said provision contemplates that the words “lawful guardian” in the aforesaid section includes any person lawfully entrusted with the care or custody of such minor or other person.

It is clear from the above said provision tha