Bombay HC: Biological dad not ‘kidnapper’ of child in absence of prohibition order

Nagpur, Nov 2 (IANS) In a significant ruling, the Bombay High Court (Nagpur Bench) has ruled that a man who took away his minor child from his estranged wife’s custody cannot be booked for kidnapping in the absence of a prohibition order by a competent court.

In a recent order, Justice Vinay Joshi and Justice Valmiki SA Menezes quashed a case of kidnapping filed against the man, Ashish A. Mule, 35, by the Gadge Nagar Police Station in Nagpur, for allegedly abducting his three-year old son from his estranged wife, Manisha A. Mule’s custody, on March 29 this year.

The judges said that in the absence of any “prohibition order” by a competent court, the applicant-father could not be prosecuted merely for taking away his own minor child from the custody of his mother.

The judges said that the natural father of the minor child is also a lawful guardian along with the mother, and therefore, he could not be said to have committed the offence of kidnapping, as alleged.

The real effect in the present of the man’s action was that the child was taken away from the lawful guardianship of the mother to another lawful guardianship of the father, said the court.

Justice Joshi and Justice Menezes here referred to the Hindu Minority & Guardianship Act, 1956 which defines the “natural guardians” of a child, and said that it was abundantly clear Mule was a natural guardian of the minor (boy) in the absence of an order otherwise passed by any competent court.

In the Mule couple’s case, both the the applicant-father and the child’s mother were the natural and lawful guardians of the child and Mule could not be charged with kidnapping even if he takes away the child from the mother.

Accordingly, the judges ruled that there was no prima facie case made out against the applicant Mule, continuation of such prosecution would amount to an abuse of the law, and quashed and set aside the FIR filed against the man – who was accused of kidnapping the child in March.

Mule was represented by lawyers Pavan Dahat and B. B. Moon, advocate V. N. Mate appeared for Manisha A. Mule, Additional Public Prosecutor S. M. Ghodeswar represented the state of Maharashtra in the matter.