COURTKUTCHEHRY EXCLUSIVE ON WHY PARENT CAN’T BE ACCUSED OF KIDNAPPING OWN CHILD
Mother Cannot Be Accused of Kidnapping Her Own Child, Rules Punjab & Haryana High Court
Court says both parents are natural guardians; custody disputes must go through family courts
Habeas corpus petitions not meant for custody battles; welfare of child remains paramount
By Our Legal Correspondent
New Delhi: January 05, 2026:
In a landmark ruling, the Punjab and Haryana High Court has reaffirmed that a mother cannot be accused of kidnapping her own minor child, even if she takes the child away without the father’s consent, unless there is a specific court order granting lawful custody to someone else. The judgment, delivered in April 2025 and widely reported in January 2026, has significant implications for family law in India, especially in cases where custody disputes overlap with criminal allegations.
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The Punjab & Haryana High Court has clarified that a mother, being a natural guardian under Section 6 of the Hindu Minority and Guardianship Act (HMGA), cannot be accused of kidnapping her own minor child under Section 361 of the IPC unless a court has specifically directed otherwise regarding lawful custody.
The case involved a 12-year-old boy whose paternal uncle filed a habeas corpus petition alleging that the mother had taken the child unlawfully. The Court dismissed the petition, clarifying that habeas corpus is not the correct legal remedy for custody disputes, which must be decided under the Guardians and Wards Act or the Hindu Minority and Guardianship Act (HMGA).
Read the P & H Judgement Here: https://www.courtkutchehry.com/judgements/1219889/pdf/?view=inline
Section 361 IPC: Kidnapping from Lawful Guardianship
- Section 361 of the Indian Penal Code defines kidnapping from lawful guardianship as taking a minor out of the custody of their lawful guardian without consent.
- However, the law makes an exception: if a parent or natural guardian takes the child in good faith, believing themselves entitled to custody, it does not amount to kidnapping.
- The High Court emphasized that both parents are natural guardians, and therefore, a mother cannot be charged with kidnapping her own child unless she acts with unlawful intent or violates a court custody order.
Section 6 HMGA: Natural Guardianship
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- Under Section 6 of the Hindu Minority and Guardianship Act:
- For boys and unmarried girls, the father is the natural guardian, followed by the mother.
- For illegitimate children, the mother is the first guardian.
- Custody of children below five years ordinarily rests with the mother.
- The Court highlighted that the mother’s role in upbringing is indispensable, and unless a family court has issued a custody order, her guardianship cannot be criminalized.
Court’s Observations
- Kidnapping Allegation Unfounded
- Since both parents are natural guardians, the mother’s act of taking her child cannot be treated as kidnapping under IPC Section 361.
- Habeas Corpus Misuse
- The Court noted an increasing misuse of habeas corpus petitions in custody disputes.
- It cited Supreme Court precedents (Tejaswini Gaud vs Shekhar Tewari, 2019; Rajeshwari Chandrasekar Ganesh vs State of Tamil Nadu, 2022) which clarified that habeas corpus is an extraordinary remedy, not a substitute for custody proceedings.
- Welfare of the Child
- The welfare and best interests of the child remain the supreme consideration.
- The Court stressed that custody disputes must be resolved in family courts, not through writ petitions.
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Why This Judgment Matters
- Legal clarity: Parents cannot accuse each other of kidnapping their own child unless unlawful intent is proven.
- Limits misuse: Habeas corpus cannot be used as a shortcut in custody battles.
- Strengthens family courts: Guardianship petitions remain the proper legal route.
- Child welfare focus: Custody decisions must prioritize the child’s comfort, safety, and emotional needs.
Wider Legal Context
- Supreme Court rulings consistently hold that habeas corpus in custody cases is limited to illegal detention.
- Family law reforms in India have called for faster resolution of custody disputes to reduce trauma for children.
- The parens patriae principle ensures courts act as guardians of minors, prioritizing their welfare above parental disputes.
Expert Views
Legal experts believe this ruling will:
- Reduce frivolous habeas corpus petitions in custody matters.
- Encourage parents to resolve disputes through family courts.
- Protect children from prolonged litigation and emotional distress.
Conclusion
The Punjab & Haryana High Court’s ruling is a milestone in Indian family law, reinforcing that child custody is not about parental rights but about the welfare of the child. By dismissing the habeas corpus petition, the Court clarified that a mother, as a natural guardian, cannot be accused of kidnapping her own child unless a lawful custody order exists against her.
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This judgment sets a precedent for future cases, ensuring that children’s interests remain paramount and that legal processes are not misused in family conflicts.
Sources: https://www.courtkutchehry.com/judgements/1219889/pdf/?view=inline
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