Latest news with #HinduMinorityandGuardianshipAct
NDTV
01-05-2025
- NDTV
Parent Cannot Be Implicated For Kidnapping Own Child: Punjab High Court
Amritsar: A parent cannot be implicated for kidnapping their own child as both the parents are equal natural guardians, the Punjab and Haryana High Court has held while dismissing a plea seeking release of a 12-year-old boy from the alleged illegal custody of his Australia-based mother. A perusal of provisions of Section 361 of the IPC and Section 6 of the Hindu Minority and Guardianship Act, 1956 indicates that for an incident to be considered as kidnapping, it is necessary that the minor child is taken away from the custody of a 'lawful guardian'. However, a mother falls well within its ambit, especially in absence of an order passed by a competent court, divesting her of the same. "This court is of the view that a parent cannot be implicated for kidnapping their own child as both the parents are his equal natural guardians," the court held. The observations were made in the matter involving the boy, whose Gurugram- based uncle filed a petition before the court accusing the child's mother of "illegally" taking away the child from his custody. The petitioner had sought a direction to the state to ensure release of the minor son of his brother "from the illegal custody" of the child's mother. The petitioner submitted that on April 24, the child's father was attending a business conference in Belgium when the boy's mother "broke into his office and stole the passport of the child and woke up the minor in the early hours of the day and took him away from his habitual residence". The petitioner called the police "but was met with a nonchalant response". He said in his plea that the woman had falsely told the police that she has merely taken the child for an hour to meet her parents in Delhi. However, her mother does not reside in Delhi. Further, she has not provided any details about the whereabouts of the child either to him or the father, the petitioner submitted. Considering the fact that she took the child's passport with her, she intends to take him to Australia, where she is currently residing. The child's parents are already in litigation regarding his custody as a guardianship petition is pending adjudication before a family court in Gurugram, the petitioner submitted. On the other hand, the counsel of the child's mother contented that it was her boy who called her requesting her to take him as his father had gone to Belgium, leaving him with the house help. Being a mother, she flew back from Australia, for the comfort of her child. Further, the screenshots of the call details as well as messages exchanged between the child and his mother would reflect the minor himself had asked her to book tickets, the counsel submitted on behalf of the child's mother. It was also submitted by the counsel that the woman is also a guardian of the minor child and till the guardianship petition is decided, she is entitled to hold his custody. Justice Harpreet Singh Brar, in his order dated April 29, mentioned that while adverting to the facts of the case, it appears that the child's mother ordinarily resides in Australia. The child was left with the house help by his father while he was on a business trip to Belgium. Perturbed by the same, the boy called his mother, in distress and she flew all the way from Australia to be with him, the judge observed in the order. "Even though the matrimonial relationship between the parents has soured, the relationship between a parent and child subsists and it is only natural for a mother to give in to her maternal instincts and respond to the calls of her distressed child. "It would also be rather unfair to expect her to leave her minor child in a place where he is uncomfortable, more so in absence of a judicial order prohibiting her from intervening," the court held. Further still, since the guardianship petition is pending adjudication before the family court, father of the child, cannot claim sole custody over him either, the judge said. "... While deciding the matter of custody of a child, the paramount consideration shall always remain his welfare. Thus, it would be just and prudent for this Court to take into account the wishes and well being of the detenu, who is 12 years old, and capable of forming a rational opinion about his living situation. "As such, at this stage, any interference by this court would be unwarranted. Accordingly, the present petition is dismissed...," the court said.
Deccan Herald
01-05-2025
- Deccan Herald
Parent cannot be implicated for kidnapping own child: Punjab High Court on illegal custody case
A perusal of provisions of Section 361 of the IPC and Section 6 of the Hindu Minority and Guardianship Act, 1956 indicates that for an incident to be considered as kidnapping, it is necessary that the minor child is taken away from the custody of a 'lawful guardian'.
Indian Express
30-04-2025
- Indian Express
Punjab and Haryana High Court upholds mother's custody of child: ‘minor's welfare would reign supreme'
The Punjab and Haryana High Court stressed the child's wishes in an ongoing custody dispute between his parents. The Punjab and Haryana High Court recently dismissed a petition seeking a writ of habeas corpus to secure the release of a 12-year-old boy from the alleged illegal custody of his mother, and upheld her custody, emphasising the child's welfare and his ability to express a rational preference at his age. The petition, filed by the child's uncle, claimed the mother had unlawfully taken the child from his habitual residence while his father was on a business trip abroad. The dispute arose from a strained family situation, with a guardianship petition already pending before a family court in Gurgaon between the child's parents. The child's uncle said that when his father was away, on April 24, the mother allegedly entered his office, took the child's passport, and removed him from his home in the early hours. The petitioner argued that she intended to take the child to Australia, where she resides, without consent, prompting the habeas corpus plea. However, the mother countered that the child had contacted her in distress, pleading for her to take him away after being left with a house help during his father's absence. She said she flew from Australia to comfort her son, asserting her rights as a natural guardian. Evidence, including call logs and messages, supported her claim that the child had asked her to book tickets. Justice Brar based his decision on the legal recognition of both parents as natural guardians under Section 6 of the Hindu Minority and Guardianship Act, 1956, and ruled out any basis for kidnapping charges. 'A parent cannot be implicated for kidnapping their own child as both the parents are their equal natural guardians,' said Justice Brar, clarifying that the mother's actions did not amount to illegal detention. The court referenced Supreme Court precedents like Tejaswini Gaud vs Shekhar Jagdisg Prasad Tewari (2019) and Rosy Jacob vs Jacob A Chakramakkal (1973). 'Welfare of the minor would reign supreme while deciding upon the matter of his custody,' Justice Brar said, highlighting that the child's best interests take precedence. Given the child's age, the court acknowledged his ability to form a reasoned opinion about his circumstances. 'It would be just and prudent for this Court to take into account the wishes and well-being of the detenu, who is 12 years old, and capable of forming a rational opinion about his living situation,' The judgment noted. With the guardianship case still pending, the court declined to interfere, leaving the issue to be resolved through the ongoing legal process.
Hindustan Times
30-04-2025
- Health
- Hindustan Times
HC denies relief to differently abled mother in custody battle
MUMBAI: The Bombay high court on Monday dismissed a petition filed by a hearing- and speech-impaired woman who sought the immediate restoration of her children's custody from her estranged husband. Observing that the family court is best suited to rule on the case, a division bench of justices Sarang Kotwal and SM Modak ordered the custody of the children, aged three and four, to remain with their father, citing their medical and emotional requirements. The petitioner, Pooja Dhanashetty, claimed she had separated from her husband, Abhijit Dhanashetty, in 2021 after allegedly being subjected to domestic abuse. She claimed that their children were with her till August 2024, when Abhijit took them away after a visit to a mall. Pooja then approached the Bombay high court, saying her children had been illegally detained by Abhijit and sought their immediate custody. Her counsel, advocate Prashant Pandey, highlighted the provisions of the Hindu Minority and Guardianship Act, which state that the custody of children should remain with the mother. On the other hand, advocate Vikas Shivarkar, representing Abhijit, who is a Pune resident, stated that a custody case is pending before the family court in Mumbai, which would be the proper forum to decide the welfare and the custody of the kids. He added that Pooja is not in a position to look after the children, especially their daughter who is undergoing physiotherapy sessions five days a week in Pune. A division bench of justices Sarang Kotwal and SM Modak ruled that the father should continue having the children's custody as he is in a better position to look after them. It also noted that the estranged couple's daughter is suffering from an ailment that required regular medical treatment in Pune, and that Pooja hadn't ever started any treatment for her daughter in Mumbai. It would not be possible for the daughter to continue getting treatment in Pune if her custody is given to her mother, who lives in Mumbai, the bench added. Considering the age of the second child, the court also stated that it would not be proper to separate the siblings at this stage as they are growing together.
