Mother Taking Custody of Child from Father Not Kidnapping, Rules Telangana HC
Pranav B Prem
The Telangana High Court recently held that a lawful guardian taking custody of a minor child from another lawful guardian does not constitute the offence of kidnapping. Justice Juvvadi Sridevi observed that such actions represent a shift from one lawful guardianship to another, which cannot be criminalized under Section 137(2) of the Bharatiya Nyaya Sanhitha, 2023.
Case Overview
The judgment arose from an interlocutory application filed by Dr. B. Priyanka, a mother and petitioner, seeking a stay on proceedings initiated against her under Section 137(2) of the Bharatiya Nyaya Sanhitha, 2023. The case originated from a complaint by her husband, alleging that the petitioner had taken custody of their minor child without authorization.
Arguments by the Petitioner
The petitioner, represented by Advocate Y. Soma Srinath Reddy, contended that:
- Biological Relationship and Maternal Instincts: As the biological mother, she acted out of maternal instincts to safeguard the child’s interests.
- Custody Orders: The appropriate remedy for the complainant, her husband, lay in approaching the Family Court for custody enforcement rather than initiating criminal proceedings.
- Precedent: The petitioner cited a 2023 Bombay High Court judgment in Criminal Application No. 552 of 2023, which clarified that transferring a child from one lawful guardian to another does not amount to kidnapping under Section 361 of the Indian Penal Code (equivalent to Section 137 of the Bharatiya Nyaya Sanhitha).
Respondent’s Stand
Additional Public Prosecutor Jithender Rao Veeramalla opposed the petitioner’s plea, arguing that specific allegations were made against her.
Court’s Observations
After examining the submissions and materials on record, Justice Juvvadi Sridevi made the following critical points:
- Legal Guardianship: The mother and father, as natural guardians, have equal legal rights over the child. Taking the child from one guardian to another does not violate criminal law.
- Applicability of Precedent: The court found the Bombay High Court’s judgment directly applicable to the case, reaffirming that a shift between two lawful guardians cannot constitute kidnapping.
- Custody Disputes: Disputes regarding custody fall under the jurisdiction of the Family Court and should not be subject to criminal proceedings.
Decision
The court allowed the petitioner’s application, staying all further proceedings against her in the FIR until February 13, 2025.
Cause Title: Dr. B. Priyanka vs. The State of Telangana
Case No: CRLP No. 16187 of 2024
Date: January-08-2025
Bench: Justice Juvvadi Sridevi
[Read/Download order]
