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Criminal Miscellaneous Applications Nos. 850 of 1976 and 434 of 1978, decided on 13th January, 1979.

--‑‑S. 361, Exception ‑ Kidnapping from lawful guardianship- Accused, in order to gain protection under Exception to S. 361 Must show having acted with due care and caution‑Act opposed to law‑Cannot be deemed to have been done with due care and caution‑Minor's custody vesting in mother under law‑Father taking away such minor from custody of mother‑Held, cannot be said to have acted with due care and caution hence guilty of offence -Conflict of authority existing on cases of such nature case directed to be laid before Chief Justice for constitution of a larger Bench to decide question.‑[Kidnapping].

Ahmad Nawaz and 3 others v. The State P L D 1968 Lah. 97 ; Khudadino v. The State 1973 P Cr. L J 186 ; Naimuddin Khan v. The State and another 1975 P Cr. L J 1082 ; Asghar Ali v. The State 1971 P Cr. L J 982 ; Bashir Ahmed v. The State 1971 P Cr. 1, J 252 ; Re: Kannegati and another A I R 1938 Mad. 656 ; Zara Bibi v. Abdur Razzaq Naqsh bandi 8 1 C 618 ; Sultan Khan v. Guloo and another 1959 Cr. L J 327 ; State v. Ramji 1958 Cr. L J 1296 ; Muhammad Sadiq v. Sadiq Safoora P L D 1963 Lah. 534 ; Mahmooda Khatoon v. Zainul Hasnain P L D 1958 Kar. 150 and Ahmad Nawaz v. State P L D 1968 Lah. 97 ref.

Talmiz Burney for Petitioners No. I.

Ghulam Ali Agha for Respondent No. 1.

R. A. Qureshi and K. A. Ghauri for the State.

Dates of hearing : 16th and 27th January, 1979.

The facts in Criminal Miscellaneous Application No. 850 of 1976. are that petitioner Mohammad Yasin was married to Mst. Shahida Khatoon, the daughter of respondent Bashir Ahmed Siddiqui. It seems the spouses were unable to continue harmonious married life so that Mst. Shahid& Khatoon was divorced by Mohammad Yasin. The spouses had three minor daughters namely Nasim Akhtar, Shamim Akhtar and Asia Khatoon, the eldest of whom was aged six years at the time of divorce. It is then alleged that petitioner Mohammad Yasin together with Bashir Ahmed Siddiqui and Mst. Noor Jehan, respectively his father and mother kidnapped the minor daughters from Sukkur and took them to Sargodha.

A complaint under section 463, P.P.C. was filed by Bashir Ahmed Siddiqui, the father of Mst. Shahida Khatoon against the three petitioners in the Court of City Magistrate, Sukkur, who issued process. The petitioners have moved this Court for quashment of the proceedings on the ground Mat since the minors had been allegedly removed from the custody of their mother by their father an offence under section 363. P.P.C. is not committed.

2. Criminal Miscellaneous Application No. 434 of 1978 has been filed by Mohammad Yakoob Khan Afridi seeking quashment of proceed ings on similar grounds in a similar case under section 363, P.P.C. The brief facts are that the petitioner was married to Mst. Asghari, the respondent and out of the wedlock a minor girl Rehana, now aged 1 years, was born. On an application under the Guardians and Wards Act the Family Court No. 11, Karachi, granted the custody of the minor daughter to respondent Ust. Asghari Bano. During the pendency of the case Mst. Asghari Bano had been directed to produce the minor in Court on the first Monday of each month so that petitioner Mohammad Yaqoob could see the child. On 4th July, 1977 respondent Mst. Asghari Bano had produced the child and petitioner Mohammad Yaqoob took away the child. A report was lodged at the Risala Police Station and a case under section 363, P.P.C. was sent up for trial.

3. I have heard the learned counsel for the petitioners in both these cases and their main contention is that the father being the natural guardian of the minor child and having the power to supervise the upbringing of the child an offence under section 363, P. P.C. is not committed in case he removed the child from the custody of the mother. They contend that the mother has at best the right of hizanat which is subject to the rights of the father as natural guardian. In that context they have relied mainly on the case of Ahmad Nawaz and 3 others v. The State (P L D 1968 Lah. 97). The facts in that case were identical to the facts in the present cases. An application was made for quashment of the proceedings on the ground that the mother was entitled only to the custody of the person of a minor upto a certain age but she is not a natural guardian so that the father, who is the legal guardian committed no offence in removing the child. In that context several other cases namely Khudadino v. The State (1973 P Cr. L J 186) Naimuddin Khan v. The State and another (1975 P Cr. L J 1082), Asghar.Ali v. The State (1971 P Cr. L J 982), Bashir Ahmed v. The State (1971 P Cr. L J 252) and Re Kannegati and another (A I R 1938 Mad. 656) have been relied on. On the other hand reliance has been placed on "The Law of Crimes" by Ratan Lai, 1961 Edn. by reference to page 910 to base the argument that if the father took away his son under seven years of age or, a daughter who is not a puberty he could be stated to kidnap his own child because the mother is by law the lawful guardian. Additionally reference has been made to the case of Zara Bibi v. Abdur Razzaq Naqshbandi (8 1 C 618) in which on an application under section 491, Cr. P.C. the custody of a male child under seven years was transferred from the father to the mother. The next case relied on is of Sultan Khan v. Guloo and another (1959 Cr. L J 327) in which the facts were that in the absence of the mother of the minor the accused had taken away the girl and delivered to her mother's mother. The trial Court acquitted the accused on the ground that in absence of mother the maternal grandmother was entitled to custody and since the minor girl had been delivered in her custody no offence was, committed. A reference was also made to the case of State v. Ramji (1958 Cr. L J 1296) in which judgment reference was made to a Criminal Revision Application No. 313 of 1917 from the Bombay High Court. _ In this ,vision application it was held that if a father who was living separately cook away the minor girl his act amounts to kidnapping.

4. I have given very anxious consideration to the conflicting aspects touching the right of the mother and the father in matter of legality of custody. I cannot overlook the personal law of Muslims which provides for a right in the mother to hizanat of the minor children. Such right i; based on law and has been recognised judicially so that there is no conflict with the proposition that a Muslim mother is entitled in case of her being a Sunni to the custody of her male child upto the age of seven years. and female child up to the age of puberty. The question that then arises is whether the concept of father not committing a crime in case of removing a minor child is not destructive or violative of the rights of the mother recognised under the Personal law. There is already an authority for the preposition that the welfare of a minor lies in remaining in such custody which the law prescribes subject to, the mother by her act, forfeiting the right to the custody of a minor child. On the other hand there is authority for the proposition that the father has a right to supervise the well‑being of the minor Muhammad Sadiq v. Sadiq Safoora (P L D 1963 Lah. 534) and that the father despite the actual custody being with the mother has the constructive custody of the minor Mahmooda Khatoon v. Zainu: Hasnain (P L D 1958 Kar.150). The point has been considered in the several cases that have been cited above but since most of these cases were considered by Mr. Justice S. A. Mahmood in the case of Ahmad Nawaz v. State (P L D 1968 Lah.97) 1 wish to discuss this case at some length. I may state that all the cases that are referred to in this order to lay down that the father commits no offence in taking away his minor child were also referred and. relied on in the judgment of Mr. Justice S.A. Mahmood.

5. In tae case of Ahmad Nawaz the learned Judge recognised the dictum that the father is a legal guardian of minor children and has cons tructive custody. The learned Judge referred to the case of Kannegati to base the proposition that the father commits no offence in such circum stances. The learned Judge recognised the right of hizanat and stated that it was a right of custody of a minor but went on to state that the legal guardianship vested in the father. Additionally for granting relief, the learned Judge referred to the Exception under section 361, P. P. C. which reads as follows :‑

"Exception.‑This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral cps unlawful purpose."

It must be stated that in none of the cases cited in favour of the proposition: that the father commits no offence, has adequate care being bestowed the point that if a father. would stand absolved of liability what is the object of the Personal Law in providing the right of Hizanat in favour of the mother. It may well be that such right can be destroyed by an act of the father regardless of the provisions of Personal Law and the mother in that case might be left with the long and cumbersome remedy for filing the application under the Guardians and Wards Act. It seems that while the father is the lawful guardian, his rights do not extend to the custody of minor child, although he may exercise some other rights which a guardian can exercise in relation to his ward.

The Exception extends to two situations. The first when a father removes his illegitimate child and the second when any person removes a child in good faith believing himself to be entitled to his custody. The words "good faith" are defined in section 52 of the Penal Code. The provision reads as follows:‑

Section 52.‑Nothing is said to be done or believed in good faith' which is done or believed without due care and attention."

These words are also defined in the General Clauses Act, 1897 as meaning to apply to all such things as are done honestly without reference to their being done negligently or not. . The difference is obvious. In order to gain protection under the Exception in section 361, P.P.C. a person has to show that he acted with due care and caution. ‑ Prima facie, an act that is opposed to law cannot be deemed to have been done with due care and caution. Expanding this argument it could be stated that a father taking away a minor child in the face of legal right to custody vesting in the mother, could never be termed to have acted with due care and caution. "Good faith" is also not synonymous for bona fide act.

7. Since there is a conflict of authority and cases of this nature arise frequently I am of the view that the point needs authoritative decision-Tentatively I am of the view that a father would be guilty of an offence under section 363, P: P. C. if he removes a minor child from the custody of the mother.

8. I now direct that these cases be laid before my Lord the Chief Justice who may constitute a larger Bench preferably of three Judges to decide the legal question which is framed as follows :‑

"Could a father be held guilty of an offence of kidnapping in case he removes a minor child from the custody of his mother while she has the right of hizanat in relation to the child."

Order accordingly.

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