By Pradyumna Satish 

The petitioner, who is the biological mother of a minor child, filed an application seeking a stay on further proceedings in FIR No. 1236 of 2024, registered at Panjagutta Police Station, under Section 137(2) of the BNS Act, which was filed by the de facto complainant, who alleged violations of a custody order. In defence, the petitioner contends that her actions were driven by maternal instincts and in the best interest of the child. 

The petitioner placed forth the following arguments in favour of their position and sought a stay order. While, on the other hand, It was argued that disputes regarding custody fall within the jurisdiction of the Family Court, and the complainant should have pursued remedies there instead of filing a criminal complaint. The petitioner relied on a. On the other hand, the Additional Public Prosecutor opposed the stay, emphasizing that specific allegations were made against the petitioner. 

The court granted a stay on further proceedings, emphasizing that both the mother and father are natural and lawful guardians of the minor child. The Court relied on the judgment of the Bombay High Court in Criminal Application No. 552 of 2023, which held that when a natural guardian, such as a father, takes custody of a minor child, it does not amount to an offense under Section 361 of IPC or make them punishable under Section 363 of CrPC, as the child remains under lawful guardianship. Recognizing this legal standing, it was ruled in this case that the petitioner’s act of taking the child into her custody did not amount to an offense under Section 137(2) of the BNS. Furthermore, the court noted that child custody disputes should be addressed in the Family Court, not through criminal complaints. Recognizing the petitioner’s maternal instincts and the lack of criminal intent, the court concluded that her actions were in the child’s best interests and not unlawful, warranting the stay on proceedings. 

The court observed that when a mother, as a natural and lawful guardian, takes custody of her child from the father, it does not constitute kidnapping. The court emphasized that both parents hold equal legal rights over the guardianship of their minor child, and transferring custody between them does not amount to taking the child out of “lawful guardianship” as per law. 

Case Title: Dr. B. Priyanka vs. The State of Telangana 

Citation: CRLP No. 16187/2024. 

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