The welfare and interest of the child are of paramount consideration in custody disputes, and the role of a mother as a lawful guardian is crucial.

JUDGMENT :

HARPREET SINGH BRAR, J.

1. The present petition is preferred under Section 482 of the Cr.P.C. for quashing the complaint no. 21/2015 dated 30.04.2015 filed under Sections 363, 452 and 120-B of the IPC (Annexure P-1) and order dated 11.10.2018 passed by learned Judicial Magistrate Ist Class, Bahadurgarh (Annexure P-2) whereby the petitioner has been summoned to face trial for commission of offence punishable under Section 363 of the IPC.

FACTUAL BACKGROUND

2. The facts, briefly, are that the petitioner is married to the son of respondent no. 2-complainant and out of the wedlock a daughter namely Prachi was born. However, some matrimonial discord ensued between petitioner and her husband and the petitioner registered a complaint against him and his family, in which he was granted the concession of bail while respondent no. 2 and his wife (mother-in-law of the petitioner) were found innocent during police investigation. The petitioner had also filed a petition under Protection of Women from Domestic Violence Act, 2005 (hereinafter ‘DV Act’) before Chief Metropolitan Magistrate, Tis Hazari Courts, Delhi.

3. Allegedly, on 28.04.2015, an unknown lady, accompanied by a man, came to the clinic of respondent no. 2 complaining of severe abdomen pain due to a kidney stone and while he was preparing the injection for the lady, the man accompanying her entered the house of respondent no. 2 and took his sleeping grand daughter-Prachi and said that their job is done and some people are waiting for them in the Santro car. Thereafter, they hurriedly left the place without even collecting the balance amount. When respondent no. 2 went to the police station to lodge a complaint, he received a mobile call from the petitioner informing him that the minor child-Prachi was with her and he can do whatever he wants to do. Subsequently, respondent no. 2 filed a complaint against the petitioner, her father, mothers, sister and brother who hatched a conspiracy to kidnap his 3 years old grand daughter in collusion with the unknown man and lady who had visited his clinic.

4. It is also pertinent to mention that a compromise was arrived at between the petitioner and her husband in the year 2015 which is recorded by the Delhi High Court in its order dated 16.11.2017 whereby a formal compromise deed dated 15.12.2016 has been executed. Further, the petitioner recorded a statement on 12.01.2017 regarding her unwillingness to pursue her complaint under DV Act any further as she is now residing in her matrimonial home with her husband and his family since one month. However, in the year 2020, she was shunned out of her matrimonial home again. The petitioner filed for guardianship of her minor daughter before the Family Court, Jhajjar where the custody of the child was granted to the her husband. An appeal titled as Geeta vs. Raj Kumar Jangra in FAO-1182-2022 was filed before this Court wherein the Division Bench granted custody of the minor child to the petitioner-mother vide order dated 26.04.2022.

5. On being satisfied about the existence of a prima-facie case against the petitioner, the learned trial Court issued summoning order dated 11.10.2018 against her. Due to reasons of not keeping well, the petitioner failed to appear before the learned trial Court and bailable warrants were issued against her vide order dated 13.06.2022 (Annexure P-3).

CONTENTIONS

6. Learned counsel of the petitioner assails the impugned order on the ground that the ingredients of the offence of kidnapping as envisaged under Section 361 of the IPC are not made out as the petitioner-mother is equally a natural guardian of the minor child, especially where the child is under 5 years of age. He further argues that respondent no. 2 has concealed the fact that two days prior to the date of the alleged incident, the son of respondent no. 2 (petitioner’s husband) took the petitioner back to her matrimonial home after apologising to her parents. However, the next day itself, the son of respo