Mother's Right To Custody Of Children Not Absolute Or Superior, Father Lawful Guardian Of Minor Son Under Muslim Law: Andhra Pradesh High Court

The Andhra Pradesh High Court quashed an FIR filed in 2022 against a Muslim father for allegedly kidnapping his 8- and 10-years-old sons from the custody of their mother.

The court said that under Muslim law, the father is the lawful guardian of his male children during their minority, and the mother can claim custody of such a child until the age of seven.

Justice K. Sreenivasa Reddy said that, “A legal guardian is certainly a lawful guardian, and if he takes a minor child from the custody of the mother who is certainly not the legal or natural guardian, though entitled to the custody of the child until it reaches a particular age, he cannot be said to commit the offence of kidnapping. In this case, the parties are governed by Mohammedan Law. Thus, it is the father that is the lawful guardian of his male children during their minority and mother can claim custody of such child till 7 years of his age.”

The court was hearing the petition to quash the FIR lodged in 2022 against the father under Section 363 r/w 34 IPC. It was alleged that he along with others had kidnapped his two sons of 10 years and 8 years old who were in the custody of their mother.

The counsel for the petitioners submitted 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 Sunni School of Mohammedan law.

It was contended that the mother is entitled to custody of her male child until that child completes the age of 7 years under the Sunni School of Mohammedan law

The counsel argued that 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.

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, the counsel contended.

On the other hand, the counsel for the respondent argued that the children are in the custody of the mother. Thus, even if the father takes away the minor children from the custody of their mother, he is liable for kidnapping to be punished under Section 363 IPC.

The court, after hearing both the sides, explained that It is clear from the Section 363 IPC that whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the custody of the lawful guardian of such minor or person of unsound mind without the consent of such guardian, is said to have committed the offence of kidnapping from lawful guardianship.

It further noted that, as per the explanation to that provision, a lawful guardian includes a person who is lawfully entrusted with the care or custody of such minor. It naturally includes a natural guardian.

"Since the parties are Muslims they are governed by Mohammadan law. The mother is entitled tot he custody of male child until the child reaches the age of 7 years under the Sunni School of Mohammedan Law, and 2 years under the Shia School. (See ‘Principles of,Mohammedan Law’ by D.K Mulla, 15th Edn page 297)," said the court.

It further said that, it is thus clear that under the Mohammedan law, the mother is entitled to the custody of her minor child only up to a certain age, depending upon the sex of the child. 

"It is an admitted fact that she is not the natural guardian. On the other hand, the father alone is the natural guardian.In case if the father is dead, his executor is the legal guardian according to the Sunni law," added the court.

The court further noted that, “Section 361 IPC speaks of ‘lawful guardianship’ and taking of a minor out of the keeping of the lawful guardian. The mother has the right to the custody of the minor only until a particular age. That will not make the father criminally liable if he takes the child from the custody of the mother, the reason being that when the father takes the child from the custody of the mother, he is only taking the child to the custody of the lawful guardianship.”

The court concluded that, it is the father who is the lawful guardian of his male children during their minority and mother can claim custody of such child till 7 years of his age of the child.

The court observed that in the present case, complainant's children are currently residing with their maternal grandparents, while the complainant herself works in Hyderabad.

"She is residing elsewhere because of her job. In such circumstances, father who happens to be the lawful guardian of the children, takes away the children from the grandparents would not in any way come within the purview of kidnapping. The right of the mother to the custody of the children is not absolute right and that right is not superior to the right of lawful guardian. It is clear to the extent that it is the father alone that had taken away the children from the custody of the de facto complainant’s parents," said the court

In light of the above, the court held that it is clear that the offence under Section 363 IPC is not attracted against the petitioner father, since he is the father and is lawful guardian of the children.

"Prima facie basing on the accusations even accepting to be true, no offence was made out. Hence subjecting the petitioners herein to undergo the rigmarole of criminal trial would be totally unjustified leading to abuse of process of law," said the court. 

Case Title: Md Asif v. State of Andhra Pradesh

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