Father Can't Be Accused Of Kidnapping For Taking Child Away From Mother In Absence Of Any Prohibition From Competent Court: Bombay High Court

The Bombay High Court recently held that a father cannot be held guilty of kidnapping for taking his minor child away from the mother unless there is an order of a competent court preventing him from taking custody of the child.

A division bench of Justice Vinay Joshi and Justice Valmiki SA Menezes sitting at Nagpur quashed an FIR registered under Sections 363 of the IPC by the biological mother of the child, accusing the father of forcibly taking away their 3-year-old son.

“The father of a child will not come within the scope of section of 361 of the IPC, even if he takes away the child from the keeping of the mother, she may be a lawful guardian as against any other except the father or any other person who has been appointed as a legal guardian by virtue of an order of the Competent Court. So long there is no divestment of the rights of the guardianship of a father, he cannot be guilty of an offence under Section 361 of the IPC”, the court held.

The father filed the present application seeking quashing of the FIR. The question before the court was whether a father could be charged with kidnapping for taking away his own minor child from the custody of the mother.

Advocates Pavan Dahat and AB Moon for the applicant-father argued that the actions of the father did not meet the criteria for the offense of kidnapping as defined under Section 361 of the IPC. The contention was that the father, being the natural guardian of the minor, could not be held liable for the alleged offense.

Section 361 defines ‘kidnapping from lawful guardianship’ as –

Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

Explanation to Section 361 of the IPC defines "lawful guardian" as someone lawfully entrusted with the care or custody of the minor. The court stated that to complete the offence, the person who takes away the minor must not be a “lawful guardian”.

The court noted that the parties were governed under Hindu Law, and in accordance with the Hindu Minority and Guardianship Act, 1956 (HAMA Act), the father is recognized as the natural guardian of a Hindu minor, and after him, the mother. Section 6(a) of the Act only speaks about the custody of a minor up to the age of 5 years given to the mother, the court noted.

The applicant-father is a natural guardian, and without any order of a competent court stating otherwise, he is also a lawful guardian along with the mother, the court held. It is not a case that the mother was lawfully given custody of the child by the order of a competent court, the court said. “Therefore, in our view in absence of legal prohibition, a father cannot be booked for the offence of kidnapping of his own child”, the court concluded.

The court said that when a father takes a child from the mother's custody, he is effectively transferring the child from the lawful guardianship of the mother to that of the father.

The court said that the continuation of the prosecution would amount to an abuse of the process of court. Thus, the court held that no prima facie case of kidnapping was made out and quashed the FIR.

Case no. – Criminal Application No. 552 of 2023

Case Title – ABC v. XYZ