Latest Relevant Cases - Md. Asif Ahammad v State of Andhra Pradesh

Md. Asif Ahammad v State of Andhra Pradesh,2023 

Case Name:

Md. Asif Ahammad v State of Andhra Pradesh,2023

Case Category:

Latest Relevant Cases

Petitioner:

Md. Asif Ahammad

Respondent:

  State of Andhra Pradesh

Bench:

JUSTICE K. SREENIVASA REDDY

Citation:

CRIMINAL PETITION NO.8501 of 2022

Laws Involved: 

Section 482 of the Code of Criminal Procedure 1973

Section 361 Indian Penal Code

Facts:

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. 

    Both the children are minors.

    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.

    Learned counsel for the petitioners submits that even accepting the entire allegations to be true, still the offence under Section 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 Section 363 IPC.

    On the other hand, learned counsel for the respondent No.2 contends that the children are in the custody of the mother. Thus, even if father takes away the minor children from the custody of their mother, he is liable to be punished under Section 363 IPC. The accusations that are made in the complaint, certainly attract the offence under Section 363 IPC. He also submits that since the investigation is at the nascent stage, truth or otherwise of the said accusations has to be investigated by the police.

    Heard both sides and perused the record

    On 24.9.2022 at 4.00 P.M., a report was given in the police station stating that on 23.9.2022 at 12.30 P.M., the petitioners herein and four others came in a car and kidnapped 1. Md Atheek Ahmmad, 10 years, 2. Md. Arshad Ahmmad, 8 years old children who are in the custody of the the de facto complainant, by pushing away the father of the defacto complainant. Based on the said report, a case in Crime No.305 of 2022 has been registered for the offence punishable under Section 363 r/w 34 IPC.

    Since the parties are Muslims they are governed by Mohammadan law. The mother is entitled to the custody of male child until the child reaches the age of 7 years under the Sunni School of Mohammedan Law, and 2 years under the Shia School. (See ‘Principles of Mohammedan Law’ by D.K Mulla, 15th Edn page 297).

    It is thus clear that under the Mohammedan law, the mother is entitled to the custody of her minor child only up to a certain age, and it is according to the sex of the child. It is an admitted fact that she is not the natural guardian. On the other hand, the father alone is the natural guardian. In case if the father is dead, his executor is the legal guardian according to the Sunni law.

Issues:

If a Muslim father takes away his minor male children aged above 7 years from mother's custody, Will it amount to kidnapping 

Judgements:

It may be noted that Section 361 IPC speaks of ‘lawful guardianship’ and taking of a minor out of the keeping of the lawful guardian. The mother has the right to the custody of the minor only until a particular age. That will not make the father criminally liable if he takes the child from the custody of the mother, the reason being that when the father takes the child from the custody of the mother, he is only taking the child to the custody of the lawful guardianship. The father, according to the Privy Council, is the natural and legal guardian of the minor. A legal guardian is certainly a lawful guardian, and if he takes a minor child from the custody of the mother who is certainly not the legal or natural guardian, though entitled to the custody of the child until it reaches a particular age, he cannot be said to commit the offence of kidnapping. In this case, the parties are governed by Mohammedan Law. Thus, it is the father that is lawful guardian of his  male children during their minority and mother can claim custody of such child till 7 years of his age of the child.

    In the case on hand, admittedly even according to the report given to police, the children are living with the parents of the de facto complainant, whereas, the de facto complainant is working at Hyderabad. On a plain reading of the recitals in the report, they go to show that admittedly the children are under the care of the de facto complainant who happens to be the mother of the children. She is residing elsewhere because of her job. In such circumstances, father who happens to be the lawful guardian of the children, takes away the children from the grandparents would not in any way come within the purview of kidnapping. The right of the mother to the custody of the children is not absolute right and that right is not superior to the right of lawful guardian. It is clear to the extent that it is the father alone that had taken away the children from the custody of the de facto complainant’s parents  

    In view of the above discussion, it is clear that the offence under Section 363 IPC is not attracted against the petitioner/A1, since he is the father and is lawful guardian of the children. 14. As far as petitioner No.2/ A2 is concerned, he is said to have accompanied A1 only. Prima facie basing on the accusations even accepting to be true, no offence was made out. Hence subjecting the petitioners herein to undergo the rigmarole of criminal trial would be totally unjustified leading to abuse of process of law.

Therefore, the Criminal Petition is allowed and the proceedings against the petitioners in F.I.R.No.305 of 2022 of Gooty Police Station, Ananthapuramu District, are hereby quashed. Miscellaneous petitions pending, if any, in the Criminal Petition shall stand closed.

Case Learning:

  If a Muslim father takes away his minor male children aged above 7 years from mother's custody, it will not amount to kidnapping as he is the lawful guardian under Muslim law.

Reference:

https://www.livelaw.in/pdf_upload/stationvsunknownon17april2023-469788.pdf

 

Latest Relevant Cases - Sarnam Singh Lekhpal Chakbandi v. Preetam Kumari and Another

Sarnam Singh Lekhpal Chakbandi v. Preetam Kumari and Another

Case Name: 

Sarnam Singh Lekhpal Chakbandi v. Preetam Kumari and Another,2023

Case Category: 

Latest Relevant Cases

Petitioner: 

Sarnam Singh Lekhpal Chakbandi

Counsel for Appellant:-

Mr. Manoj Kumar Sharmam, Smt. Krishna Singh

Respondent: 

Preetam Kumari and Another

Counsel for Respondent

Mr. Manoj Kumar Gupta, Mr. Mahesh Narain Singh

Bench:

Hon'ble Chandra Kumar Rai,J.

Laws Involved: 

Section 25 of the Hindu Marriage Act.

Order 41 Rule 31 of the C.P.C

Facts:

Talk of marriage between the plaintiff and defendant has taken place

    Due to fraudulent act of the wife- Preetam Kumari and their family members, the mediation has taken place and the proposal of the marriage has come to an end.

    Father of Preetam Kumari has illegally kidnapped the plaintiff (Sarnam Singh) and illegally solemnized the marriage which is not a legal marriage as prescribed under the Hindu Marriage Act. 

    It is also mentioned in the plaint that there was no relation of husband and wife between them, as such, the alleged marriage be declared null and void. 

    In the written statement, Preetam Kumari denied the plaint allegations and submitted that the valid marriage has taken place, as such, the suit for declaring the marriage null and void be dismissed. 

    Plaint case of O.S. No.213 of 2003 in brief was that

    Preetam Kumari was married to Sarnam Singh according to the custom on 5/6.7.1997 but husband Sarnam Singh has deserted her, as such, the instant suit for restitution of conjugal rights has been filed by wife Preetam Kumari. 

    Husband Sarnam Singh denied the plaint allegations and stated that no valid marriage according to the Hindu Marriage Act has taken place between them, as such, the plaintiff is not entitled to the relief claimed in the suit for restitution of conjugal rights. It is also mentioned in the written statement that defendant has already filed a Suit No.257/1997 for declaring the marriage as null and void.

Both the aforementioned suits were consolidated and heard together.

Issues:

Whether the order of maintenance under Section 25 of the Hindu Marriage Act can be passed without such relief being asked by the person in whose favour such order is being passed?

Whether the first appellate court had not afforded opportunity of hearing to parties on the point of maintenance under Section 25 of the Hindu Marriage Act.? If so, its affect.

Judgements:

The perusal of the judgment of lower appellate court reveals that lower appellate court has ordered for maintenance/ permanent alimony on the ground that there was divorce decree of the trial court although trial court passed the decree declaring the marriage as void / ineffective, as such, there was no occasion to order for maintenance / permanent alimony in favour of respondent – wife while dismissing the civil appeal filed by respondent – wife, as such, judgment and decree passed by lower appellate court for maintenance/permanent alimony is vitiated by manifest error of law. 16. So far as exercise of the jurisdiction under Section 25 of the Hindu Marriage Act while dismissing the civil appeal filed by wife is concerned, the perusal of Section 25 of the Hindu Marriage Act will be necessary. 

The perusal of the lower court record reveals that there was no application under Section 25 of the Hindu Marriage Act, 1955 on record, as such, exercise of power under Section 25 of the Hindu Marriage Act, 1955 by the lower appellate court while dismissing the civil appeals filed by respondent – wife, affirming the decree of trial court, declaring the marriage as void and ineffective is vitiated by manifest error of law.

So far as grant of monthly maintenance by trial court is concerned, the same has come to an end while passing the final judgment and decree by trial court declaring the marriage as void and ineffective, as such, no reliance can be placed upon the monthly maintenance granted by trial court.

Since there was no application under Section 25 of the Hindu Marriage Act, 1955 by respondent-wife in civil appeal, as such, there was no question that lower appellate court has provided opportunity of hearing to appellant – husband in civil appeal before passing order of maintenance in favour of wife.

Considering the entire facts and circumstances of the case, the grant of maintenance under Section 25 of the Hindu Marriage Act in favour of Preetam Kumari when marriage has been declared null and void by the trial court, cannot be maintained in the eye of law. 

The suit for declaring the marriage as null and void, has been decreed by the trial court and the decree has been affirmed in the first appeal, as such, the first appellate court has committed illegality in passing the order for maintenance under Section 25 of the Hindu Marriage Act. 

It is also material that finding of the trial court has been maintained in the appeal, as such, there was no occasion to grant maintenance under Section 25 of the Hindu Marriage Act in favour of the respondent Preetam Kumari coupled with the fact that there was no application under Section 25 of the Hindu Marriage Act, 1955 in civil appeal by respondent-wife.

In view of the finding of fact recorded by the trial court declaring the marriage as void and ineffective, the grant of maintenance under Section 25 of the Hindu Marriage Act in favour of the respondent Preetam Kumari is manifestly erroneous and illegal. The substantial questions of law nos. 1 and 2 are answered in favour of appellant and against the respondent.

In view of above, the part of the judgment and decree of the lower appellate court by which maintenance under Section 25 of the Hindu Marriage Act has been granted by the first appellate court in Civil Appeal No.44/2010 and 45/2010 is hereby set aside. The second appeal stands allowed. No order as to costs.

Case Learning:

  An order of maintenance under Section 25 of the Hindu Marriage Act cannot be passed without such relief being asked by the person in whose favour such order is being passed.

Reference:

https://www.verdictum.in/pdf_upload/sapla10872015watermark-1493563.pdf

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