MD. ASIF AHAMMAD Vs. STATE OF A.P.

JUDGEMENT

(1.) This Criminal Petition, under Sec. 482 of the Code of Criminal Procedure 1973, is filed by A1 and A2, to quash the proceedings in F.I.R.No.305 of 2022 of Gooty Police Station, Ananthapuramu District, registered for the offence punishable under Sec. 363 r/w 34 IPC.

(2.) Brief facts of the case are as follows; On 23/9/2022 at 12.30 P.M., at Jangala Colony Arch, Tadipatri Road, Gooty Town, the petitioners along with four others came in a car and kidnapped the children by name 1. Md.Atheek Ahammad, aged 10 years, 2. Md. Arshad Ahmmad, aged 8 years, of the de facto complainant/2nd respondent herein, by pushing away the father of the de facto complainant/2nd respondent who was bringing the children from school. On that the de facto complainant/2nd respondent gave a report to the police and based on the said report a case in crime No.305 of 2022 was registered by police against the petitioners and others.

(3.) Learned counsel for the petitioners submits that even accepting the entire allegations to be true, still the offence under Sec. 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 Suni School of Mohammedan law. It is contended that the mother is entitled to custody of her male child until that child completed the age of 7 years under the Sunni School of Mohammedan law and 2 years under the Shia School of Mohammedan law. Under the said provisions, it is the father who is the primary and natural guardian of minor children. 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. According to the prosecution, 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. The natural guardian of the kids is petitioner No.1, the father. 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 Sec. 363 IPC.