CHANDIGARH: Punjab and Haryana HC ruled Wednesday that a parent cannot be charged with kidnapping her own child, granting custody of a 12-year-old boy to his Australia-based mother amid a family dispute.
Justice Harpreet Singh Brar made the ruling while hearing a habeas corpus plea filed by Raja Rekhi of Gurgaon, the child's paternal uncle. Rekhi sought the boy's release from what he called the illegal custody of the mother, who had taken the child while his father was away on a business trip to Belgium.
"For an act to amount to kidnapping, it is necessary that the minor is taken from the custody of a ' lawful guardian '. However, a mother falls well within that ambit, especially in the absence of an order passed by a competent court, divesting her of the same," the court said.
The boy's father Amit Rekhi was abroad on April 24 when the mother allegedly broke into his office, took the child's passport, and left with him. According to the uncle's plea, she falsely told police she was taking the boy briefly to visit her parents in Delhi - a claim he disputed, saying her mother does not live there. The petitioner also alleged she intended to take the child to Australia, where she currently resides.
The mother told the court she came to India because the boy had been left in the care of house help and had requested her presence. She produced call logs and messages exchanged with the child and argued that as his mother and natural guardian, she retains custody rights until the pending guardianship case before Gurgaon family court is resolved.
"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 HC said, siding with the mother.
Justice Harpreet Singh Brar made the ruling while hearing a habeas corpus plea filed by Raja Rekhi of Gurgaon, the child's paternal uncle. Rekhi sought the boy's release from what he called the illegal custody of the mother, who had taken the child while his father was away on a business trip to Belgium.
"For an act to amount to kidnapping, it is necessary that the minor is taken from the custody of a ' lawful guardian '. However, a mother falls well within that ambit, especially in the absence of an order passed by a competent court, divesting her of the same," the court said.
The boy's father Amit Rekhi was abroad on April 24 when the mother allegedly broke into his office, took the child's passport, and left with him. According to the uncle's plea, she falsely told police she was taking the boy briefly to visit her parents in Delhi - a claim he disputed, saying her mother does not live there. The petitioner also alleged she intended to take the child to Australia, where she currently resides.
The mother told the court she came to India because the boy had been left in the care of house help and had requested her presence. She produced call logs and messages exchanged with the child and argued that as his mother and natural guardian, she retains custody rights until the pending guardianship case before Gurgaon family court is resolved.
"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 HC said, siding with the mother.
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