The Court was hearing a petition to quash the first information report (FIR) lodged in 2022 against the father for the offence of kidnapping under the Indian Penal Code (IPC).
It was alleged that he along with four other persons had kidnapped his two sons aged 10 years and 8 years who were in the custody of their mother.
The counsel for the petitioners submitted that even if all allegations are accepted to be true, still the offence of kidnapping would not be made out for the reason that the petitioners being Sunni Muslims are governed by the Sunni School of Mohammedan law
As per the same, father taking male children aged above 7 years will not amount to kidnapping since he is the lawful guardian of such children under Mohammedan law.
The counsel argued that the father and the paternal uncle of the children, have taken away the children who were aged about 8 years and 10 years from their maternal grandparents.
Hence, father taking away children by their father would not in any way come within the meaning of kidnapping so to attract the offence punishable under Section 363 IPC, the counsel added.
In the instant case, though both the children are minors, they were above the age of 7, the Court noted.
“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. 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,” the Court said.
Source: Barandbench
