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2020 Supreme(Del) 77
IN THE HIGH COURT OF DELHI AT NEW DELHI
Manmohan, Sangita Dhingra Sehgal, JJ.
Kiran Lohia – Appellant
Versus
State and Others – Respondent
Writ Petition (Criminal) No. 2375 of 2019
Decided on : 07-01-2020
Advocate Appeared:
Dayan Krishnan, Advocate, Malavika Rajkotia, Advocate, Rytim Vohra, Advocate, Gopal Sankaranarayanan, Advocate, Gayatri Verma, Advocate, Shrutanjaya Bhardwaj, Advocate, Maninder Acharya, Advocate, Ripu Daman Bhardwaj, Advocate, Geeta Luthra, Advocate, Rajat Bhalla, Advocate, Prateek Yadav, Advocate, Vikas Pahwa, Advocate, Varun Bhati, Advocate, N. Hariharan, Advocate, Sachin Mittal, Advocate, Kanishk Khullar, Advocate, Joginder Tuli, Advocate, Joshini Tuli, Advocate
Headnote:
The Court held that the father's act of taking the child outside India without the mother's consent also attracts the offence of kidnapping under Section 361 IPC. The Court also held that the father cannot avail the benefit of Exception to Section 361 IPC as his taking custody of the child is contrary to express orders of a court and the same can never be conceived, by any reasonable person, to be "lawful custody".
Fact of the Case:
The petitioner, the mother of the child, filed a writ of Habeas Corpus seeking the release of her child from the custody of the respondent, the father of the child. The child was taken out of the country by the father without the mother's consent. The father claimed that he had the right to take the child out of the country as he was the natural guardian of the child. The mother argued that the father's act amounted to kidnapping under Section 361 of the Indian Penal Code (IPC).
Finding of the Court:
The Court held that the father's act of taking the child outside India without the mother's consent also attracts the offence of kidnapping under Section 361 IPC. The Court also held that the father cannot avail the benefit of Exception to Section 361 IPC as his taking custody of the child is contrary to express orders of a court and the same can never be conceived, by any reasonable person, to be "lawful custody".
Issues: Whether the father's act of taking the child outside India without the mother's consent amounts to kidnapping under Section 361 IPC.
Ratio Decidendi: The Court held that the father's act of taking the child outside India without the mother's consent also attracts the offence of kidnapping under Section 361 IPC. The Court also held that the father cannot avail the benefit of Exception to Section 361 IPC as his taking custody of the child is contrary to express orders of a court and the same can never be conceived, by any reasonable person, to be "lawful custody". The Court relied on the following principles: * A biological parent can never kidnap his/her own child. * A writ of Habeas Corpus is maintainable against a biological parent. * The father's act of taking the child outside India without the mother's consent is contrary to express orders of a court and the same can never be conceived, by any reasonable person, to be "lawful custody".
Final Decision: The Court held that the father's act of taking the child outside India without the mother's consent also attracts the offence of kidnapping under Section 361 IPC. The Court also held that the father cannot avail the benefit of Exception to Section 361 IPC as his taking custody of the child is contrary to express orders of a court and the same can never be conceived, by any reasonable person, to be "lawful custody".
JUDGMENT :
Manmohan, J. –
Crl M.A. 34467/2019
Present application has been filed by the petitioner Ms. Kiran Lohia to restrain her father-in-law, respondent no. 5 from leaving the jurisdiction of this Court and for a direction to respondent no. 5 to deposit his passport with this Court.
Keeping in view the fact that the CBI has already opened a Lookout Circular (In short, "LOC") against respondent no. 5, the present application is infructuous and it accordingly stands disposed of. In the event of change in circumstances, the petitioner is given liberty to file appropriate proceedings.
Crl. M.A. 34316/2019 & 34924/2019
While Crl. M.A. 34316/2019 has been filed seeking to restrain respondent no.6 (petitioner's mother-in-law) and respondent no.7 (petitioner's sister-in-law) from leaving the jurisdiction of this Court and to further direct respondent nos.4 to 9 to deposit their passports with this Court, Crl.M.A.34924/2019 has been filed to keep the LOC issued against respondent nos. 6 and 7 vide order dated 28th August, 2019 alive even after they have deposited their passports with this Court and to direct respondent no.2 to detain respondent nos.6 and 7 or in the alternative direct respondent nos.6 and 7 to report to Vasant Vihar Police Station daily.
The argument of learned senior counsel for the petitioner was that respondent no. 4 as well as his parents and sister constitute a family which works in unison and supports each other. Learned senior counsel for the petitioner pointed out that visitation rights in respect of minor child Baby Raina had been obtained by respondent no. 4 from the learned Predecessor Bench vide order dated 1st May, 2018 in W.P.(Crl.) 357/2018 not for himself alone but for his parents also. In support of his submission, learned senior counsel for the petitioner had heavily relied upon the order dated 1st May, 2018. The relevant portion of the said order dated 1st May, 2018 in W.P.(Crl.) 357/2018 is reproduced hereinbelow:-
"8. On 13.03.2018, the order dated 08.03.2018 was slightly modified inasmuch, as, the child was to remain with the petitioner on Sundays, and was to be handed over to respondent No. 4 and his parents on Saturdays in modification of clauses (vi) and (vii) of the aforesaid conditions. This arrangement is continuing in operation presently...."
Per contra, learned senior counsel for respondent nos. 6 and 7 submitted that the said respondents had no involvement in the actions of respondent no. 4 and that the said respondents were not involved in the marital life and affairs of the petitioner and respondent no. 4 and that the averments in the present applications were contrary to petitioner's own pleadings in W.P.(Crl.) 357/2018. Learned senior counsel for respondent nos.6 and 7 contended that the said respondents were not a party to the W.P.(Crl.) 357/2018 or to the parenting plan of the minor child Baby Raina. Learned senior counsel emphasised that respondent no. 7 was an unmarried, independent working lady who had her business establishment abroad.
In rejoinder, learned senior counsel for the petitioner pointed out that the respondent no. 4 in a custody application for Baby Raina filed before the Dubai Court had named respondent no. 6 as a woman who was suitable to be the custodian of Baby Raina. The relevant portion of the custody application filed by respondent no.4 before the Dubai Court is reproduced hereinbelow:-
"Article (144) of the Personal Status Law stipulates:
If the person undertaking the custody is a man:
- He must have a woman who is suitable to be custodian.
- He must be a first degree relative (mahram) to the minor child, if it is a female.
- To have the same religion of the minor child.
Whereas the plaintiff has a woman who is suitable to take care of a minor child, her grandmother ((the mother of the plaintiff)), who lives with the plaintiff in the UAE in the same house since a long time, and she is a woman who is fit to custody and to help him in caring of the minor and can take car
