Read Time: 07 minutes

Synopsis

The Andhra Pradesh High Court recently observed that under the Mohammedan Law, the right of the mother to the custody of the children is not an absolute right, and that right is not superior to the right of the lawful guardian.

The bench of Justice K Sreenivasa Reddy noted that under the Shia School of Mohammedan law, it is the father who is the primary and natural guardian of minor children and the 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.

Court emphasised that the mother is entitled to the custody of a 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.

"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, and it is according to the sex of the child," the court observed. 

The court was dealing with a plea to quash the proceedings lodged against a father under Section 363 r/w 34 of IPC for kidnapping his children from their mother's custody. 

The complaint in the case was lodged by the mother of the children. The mother had alleged that the father of the children, along with four others came in a car and kidnapped her sons aged 10 years, and 8 years respectively when her father was bringing the children home back from school. 

Seeking relief before the high court, the counsel for the accused father argued that even if the entire allegations were accepted to be true, still the offence under Section 363 r/w 34 IPC was not made out against the father for the reason that the parties in the case were Sunni Muslims, who are governed by the Suni School of Mohammedan law.

The counsel submitted that under the Suni School of Mohammedan law, it is the father who is the primary and natural guardian of minor children, therefore, taking away of the children by their father would not in any way come within the meaning of kidnapping under Section 363 of IPC.

Court noted that to attract the offence under Section 363 IPC, it is essential to consider Section 361 IPC which provides the definition of kidnapping from lawful guardianship.

"It is clear from the above-said provision (Section 361 IPC) that whoever takes or entices any minor...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 have committed the offence of kidnapping from lawful guardianship," court stated. 

Court noted that as per the explanation to Section 361 of IPC, a lawful guardian includes a person who is lawfully entrusted with the care or custody of such a minor which naturally includes a natural guardian.

Court opined that since in the case at hand, the parties were Muslim, the mother would not be the natural guardian and it is the father alone who would be the natural guardian of the two boys. 

Therefore, the court held that the act of the father of taking away the children from their grandparents would not in any way come within the purview of kidnapping. 

Accordingly, court allowed the petition filed by the father and quashed the proceedings initiated against him. 

Case Title: Md Asif Ahammad v State of Andhra Pradesh and Others