Father Taking Away Child from Custody of Mother Cannot Be Booked for Kidnapping: Bombay HC – News18

The Bombay High Court recently ruled that a father, as a lawful guardian, cannot be charged with kidnapping his child if he takes the child away from the mother’s custody. “Natural father of the minor child is also a lawful guardian along with the mother, and therefore, father of the minor cannot be said to have committed the offence under Section 361 of the IPC so as to made punishable under Section 363 of the Code of Criminal Procedure,” the order reads.

A division bench of the high court in Nagpur, composed of Justice Vinay Joshi and Justice Valmiki Menezes, was hearing a plea filed by the father seeking the quashing of an FIR in which he was booked for kidnapping under the IPC.

The mother, who was the complainant, alleged that on 29.03.2023, the father forcibly took away their 3-year-old son, which she considered an act of kidnapping.

Advocate Pahan Dahat, representing the father, argued that the father’s actions do not constitute the offence of kidnapping as defined under Section 361 of the IPC, punishable under Section 363 of the IPC. He emphasised that the father, as the natural guardian of the minor, should not be charged with the aforementioned offence.

The bench referred to the definition of the natural guardian under the Hindu Minority and Guardianship Act of 1956 and pointed out that, in the absence of any court order to the contrary, the father is considered the natural guardian of a minor.

“If the minor of the age specified in the law, is taken out of the custody of the lawful guardian of such a minor, then the offence would be complete. It is not a case that the mother was lawfully entrusted with the care or custody of the minor by the order of competent Court,” the order reads.

The division bench therefore concluded that a father cannot be booked for the offence of kidnapping of his own child.

“The expression “Guardian” under Section 4(2) of the Guardians and Wards Act, encompasses any person who is having the care of the person of a minor or of his property. Therefore, in our view in absence of legal prohibition, a father cannot be booked for the offence of kidnapping of his own child,” the order states.

The bench also emphasised that a father, as the natural guardian of a child, cannot be charged under Section 361 of the IPC, even if he takes the child away from the mother, who may be a lawful guardian as against anyone else except the father or a person appointed as a legal guardian by a court order.

The bench added that as long as the father’s rights as the natural guardian have not been legally revoked, he cannot be held responsible for an offence under Section 361 of the IPC.

Therefore, the court proceeded to quash the kidnapping case registered against the father as the necessary ingredients of kidnapping were not fulfilled.