The Delhi HC on Tuesday said the offence of kidnapping was made out against a man who had taken away his toddler daughter to Dubai without the consent of the court or the mother, as he only had visitation rights & wasn't her lawful guardian.
The HC said the only persons who could consent to taking away the child were herself & the mother, & the father's act of taking away the minor under a foreign passport & later changing her citizenship, passport & religion was "immoral" & "shocking".
A bench of Justices Manmohan & Sangita Dhingra Sehgal further said every action of the father, whom it had sentenced to 6 months' imprisonment for contempt of court for taking abroad his daughter without permission, "has been an egregious violation of laws of this country & careless disregard of the rights of not only his wife & child but also his parents & sister presuming they aren't complicit".
"The child was taken out of India without the consent of this court, which is 'some person' & is legally authorised to consent on behalf of the child. Accordingly, section 360 Indian Penal Code (kidnapping) is attracted. The petitioner-mother has obtained sole, absolute & exclusive guardianship & custody of the child on Sept 21, 2019.
"His taking custody of the child is contrary to express orders of a court & the same can never be conceived, by any reasonable person, to be 'lawful custody'. Further, as the act of the applicant-respondent no. 4 shocks the court's conscience, it qualifies as immoral. Consequently, the act of taking the child outside India without the mother's consent also attracts the offence of kidnapping," the bench said.
The prima facie observations of the court came while dismissing an application moved by the father seeking dismissal of the habeas corpus plea moved by the mother & to vacate the interim orders passed by the bench.
Rejecting his plea, the court further said that his access & participation in the present proceedings would be with held until he purges the contempt against him by bringing his daughter back as he is "persisting in his contumacious behaviour" & the conviction for contempt of courts "has had no deterrent or reformatory effect on him".
"Applicant-respondent no.4 (father) has shown no remorse for his conduct. Further, applicant-respondent no.4's continuing disobedience impedes the course of justice & has rendered it impossible for this court to enforce its orders in respect of him & the child.
He "has also shown his lack of worth by attacking the Indian judicial system by alleging general gender bias in favour of ladies," the bench said.
It also set up a joint committee, comprising the Consul General of India, Dubai & officials of the Central Bureau of Investigation & the Ministry of External Affairs (MEA), to take steps in accordance with law to produce the minor before the court as the father despite various opportunities hasn't brought back his toddler daughter.
The court also noted that the identity of the child was "threatened" by the actions of her father who has changed her passport, citizenship & religion.
The bench also observed in its order that the father's action of taking away the child under a foreign passport to another country "was done with the sole intent of ensuring that the Indian authorities including this court are deprived of the option of affording justice to the child & the same amounts to obstruction/interference with the administration of justice & impedes the course of justice".
In August last year, the HC has initiated suo motu criminal contempt proceedings against the man when he violated the terms of an earlier order relating to handing over the custody of the child.
In Aug 2019, when the girl was with the man, he in connivance with others took a flight to Bagdogra in West Bengal & crossed Nepal. He flew out from Kathmandu on Qatar Airways to Doha, then to Muscat & reached Dubai.
This prompted the mother, who was earlier granted the child's interim custody, to file a habeas corpus in the Delhi HC seeking production of the girl as she wasn't returned to her by the man.
The father & grandparents were granted visitation rights.
A habeas corpus plea requires a person under unlawful custody to be brought before a judge or a court.
In Sept 2019, the man was held guilty of contempt of court by the HC for flouting the judicial order & taking the child out of country despite giving an undertaking.
A family court has also declared the mother to be the guardian & custodian of the child for "her paramount interest & welfare".
The woman had earlier told the court that in 2017, her father-in-law had taken the baby to Bangkok for a trip & from there, he took her to Dubai where he has a residence.
When she went to Dubai, she was not allowed to meet the child after which she approached the court & the minor was brought back to Delhi.
The HC had earlier made it clear that both the parents shall strictly abide by the interim custody & visitation arrangement & other conditions, & if it is reported that either of the two parties have not complied
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