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Manas K Nandi   04 October 2017

Case law on Child abduction by a mother

Is there any case laws of child abduction by a mother, removed a child from his welfare, without jurisdiction?


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 12 Replies


(Guest)

Assuming that you mean that the mother removed her child from his welfare home without permission from the latter, a case of kidnapping can be made out u/Sec 359 IPC....

Vijay Raj Mahajan (Advocate)     04 October 2017

Abduction or kidnapping of a minor child by any parent is in the case where there exists specific order of the court in favour of one parent and other parent prevented to take the minor child out of the lawful custody without the order of the court thus disobeying the order of the court.

The permanent custody of the child is decided by the court after considering the welfare of the minor child. Both parents are natural guardians of the minor child and can hold lawful custody. If the court decide permanent custody of the minor in favour of one parent, the other parent is allowed visitation of the minor at regular interval. Its not that the permanent custody of minor to one parent gives unlimited right to such parent to hold the minor child in his/her custody and not allow the other parent to meet, comunicate and interreact with the minor child.

Manas K Nandi   04 October 2017

I think you wanted to mean that if there is no existing court order on legal custody, such lawful parent's wilful activities need to be proved first as abduction, then only a kidnapping/abduction case can be field? 

Manas K Nandi   04 October 2017

Yes Sir, I wanted to mean that a hindu mother removed her child from the child's primary ressidence and from the welfare of a child wilfully without any permission or court order and taken away from the welfare of the child & father (within India). With that all Educational, Sports & other welfare activities got suddenly stoped inbetween. 

Can this case be addressed as parental abductio/kidnapping and can immediate custody be asked by the fater on the welfare of the child?

Is there any court laws?

can a WP can be fieled in High Court for immediate custody to avoid child carrier loss?

Siddharth Srivastava (Advocate)     04 October 2017

Depending on circumstances no case of abduction is made out against natural mother if she takes the child with her unless court has awarded custody of child to a person.

Manas K Nandi   04 October 2017

Is there any scope to prove the abduction as wilfulness of a mother by her demand and as she is the cause against child welfare?

Siddharth Srivastava (Advocate)     04 October 2017

You may approach guardian court situated in every district court seeking custody of the child where in interim relief you can claim the custody of child with appropriate direction. If the whereabout of child is not known then WRIT OF HABEUS CORPUS can be filed in high court. 

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Manas K Nandi   04 October 2017

That't absolutely right suggestion, sir!

I also wanted to know that, is there any scope to prove the abduction as wilfulness of a mother by her demand and as she is the cause against child welfare with that intentions?

As the wife has already field a case US 498A/406/34 IPC before 5 months after 23years of marriage and presently demanding seperate accomodation with son & even with husband but without widow mother-in-law!

Siddharth Srivastava (Advocate)     04 October 2017

You owe libility towars your mother and parents but you also cannot deny your liablity towards your wife. Your wife is entitled to maintenance if she does not have sufficient means to maintain hersilf or if she does not have independent sourse on income to maintain herself. You may consult in person if need so arise. Sidharth 9811776422

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Manas K Nandi   04 October 2017

Thanks for your points of concerns but things are flowing over head!

Adv Radhika Mehta (Advocate)     04 October 2017

Rather than filing and implicating your wife for abduction or kidnapping, i would advise you to seek custody of your child. As rightly advised hereinabove, the charges of kidnapping/ abduction would arise only in cases where there is an existing order of the Court granting you custody, flouting which your wife has absconded with the child. 

The writ of Habeas Corpus, as recently held, cannot be filed in such cases as the Courts do not believe the custody of a child with his mother to be wrongful confinement. 

Manas K Nandi   04 October 2017

Thanks. You are right, sir.

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