SEHNAZ ALIAS SANTOSH GUPTA Vs. STATE OF PUNJAB

JUDGEMENT

(1.) STRANGELY , a mother, one of the natural guardian, is an accused of an offence of kidnapping of her own child with further allegation that this was with the intent to secretly and wrongfully confine the child. Unmindful of the relationship of mother and child, the police has registered the FIR in this regard and has gone ahead to present a challan. Crying hoarse, the mother is saying that being natural guardian she cannot be blamed for kidnapping her own child. She has, accordingly, filed the present petition under Section 482 Cr.P.C. seeking quashing of the said FIR and the subsequent proceedings being held against her.

(2.) ON 10.10.1995, the petitioner, a Hindu by religion, has performed an inter-religious marriage with respondent No. 2, a Muslim, a male child named Jasan Ashish was born out of this wedlock on 18.1.1999. Differences between the couple led to divorce between them on 23.1.2002. The petitioner says that she became extremely upset due to break up of this marriage and respondent No. 2 taking advantage of her infirm mental health got the custody of their child, who at that time was 3 years old. Claiming law to be in her favour, the petitioner has averred that the mother is a natural guardian for a male child upto the age of 7 years as per the Muslim Law. The petitioner has, otherwise, been meeting her child with prior permission of respondent No. 2. The petitioner admits to have taken her child on vacations as she was going to Mount Abu with her colleagues. As per the petitioner, this was with prior permission of respondent No. 2, her ex-husband. On this, respondent No. 2 got registered a criminal case against the petitioner with the allegation that she had kidnapped the child. During the course of arguments, it was conceded before me that the child presently is in custody of respondent No. 2.

(3.) CAN a mother be accused of kidnapping of her minor son ? Mr. Ranjan Lakhanpal, learned counsel for the petitioner would say that registration of a case of kidnapping and continuing of the proceedings against the mother- petitioner is nothing but an abuse of process of Court. On the other hand, Mr. P.S. Brar, learned counsel for respondent No. 2 is equally vehement in opposing the prayer of the petitioner. Counsel for respondent No. 2 has maintained that the petitioner had earlier given up the custody of the child voluntarily and hence would not have any right to take child in the manner she did. He otherwise conceded that respondent No. 2 was permitting the petitioner to meet the child. Accordingly, he has prayed that the present petition to be dismissed.