The Delhi High Court 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 and was not her lawful guardian.
The high court said the only persons who could consent to taking away the child were herself and the mother, and the father's act of taking away the minor under a foreign passport and later changing her citizenship, passport and religion was "immoral" and "shocking".
A bench of Justices Manmohan and Sangita Dhingra Sehgal further said every action of the father, whom it had sentenced to six months' imprisonment for contempt of court for taking abroad his daughter without permission, "has been an egregious violation of laws of this country and careless disregard of the rights of not only his wife and child but also his parents and sister presuming they are not complicit".
"The child was taken out of India without the consent of this court, which is 'some person' and is legally authorised to consent on behalf of the child. Accordingly, section 360 IPC (kidnapping) is attracted. The petitioner-mother has obtained sole, absolute and exclusive guardianship and custody of the child on September 21, 2019.
"His taking custody of the child is contrary to express orders of a court and 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 and to vacate the interim orders passed by the bench.
Rejecting his plea, the court further said that his access and participation in the present proceedings would be withheld until he purges the contempt against him by bringing his daughter back as he is "persisting in his contumacious behaviour" and 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 and has rendered it impossible for this court to enforce its orders in respect of him and 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 and officials of the CBI and 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 has not 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 and 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 and the same amounts to obstruction/interference with the administration of justice and impedes the course of justice".
In August last year, the high court 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 August 2019, when the girl was with the man, he in connivance with others took a flight to Bagdogra in West Bengal and crossed Nepal. He flew out from Kathmandu on Qatar Airways to Doha, then to Muscat and reached Dubai.
This prompted the mother, who was earlier granted the child's interim custody, to file a habeas corpus in the Delhi High Court seeking production of the girl as she was not returned to her by the man. The father and 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 September 2019, the man was held guilty of contempt of court by the high court for flouting the judicial order and taking the child out of country despite giving an undertaking.
A family court has also declared the mother to be the guardian and custodian of the child for "her paramount interest and welfare".
The woman had earlier told the court that in 2017, her father-in-law had taken the baby to Bangkok for a trip and 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 and the minor was brought back to Delhi.
The high court had earlier made it clear that both the parents shall strictly abide by the interim custody and visitation arrangement and other conditions, and if it is reported that either of the two parties have not complied with this condition, or have resisted its compliance, the court shall reconsider the arrangement.
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