Father Can't Be Charged Of 'Kidnapping' His Minor Child From Wife's Custody Unless He Was Specifically Prohibited By Competent Court: Karnataka HC

The Karnataka High court has held that a father cannot be charged for kidnapping his minor child from the custody of his wife, so long as there is no prohibition order passed by a competent court against him.

A single judge bench of Justice Venkatesh Naik T allowed the petition filed by the husband and quashed the proceedings initiated against him by his wife for the offence punishable under Section 363 IPC.

The court said,

“It is not a case that the mother was lawfully entrusted within the care or custody of the minor by an order of the competent Court. Therefore, the petitioner-accused is the natural guardian to the child. In the absence of any prohibition of the order of the competent Court, the petitioner-father cannot be booked for taking away his own minor child from the custody of her mother.”

As per the complaint, the petitioner-father had attended the second birthday of the child at the estranged wife's house. Then he took the minor to his house, where he arranged a birthday programme. Following which the wife filed the complainant for kidnapping.

The petitioner argued that by no stretch of imagination, the act of the petitioner/accused attracts the offence of kidnap. Being the father and natural guardian of the minor, he cannot be booked for the offence, it was argued.

Referring to Section 361 of IPC the court said “The Explanation added thereto includes the words “lawful guardian” to include any person lawfully entrusted with the care or custody of such minor or other person. However, to complete the offence, the person who takes away the minor, must fall within the proposition of the term 'lawful guardian'.”

Noting that under Section 6 of the Guardians and Wards Act, 1890, the father is a natural guardian and after him, the mother, the court said, “If the minor of the age specified in the section, (361 IPC) is taken out of the custody of the lawful guardian of such a minor, then the offence would be complete."

It held the father of a child will not come within the scope of Section 361 IPC, even if he takes away the child from the custody of the mother. "So long as there is no divestment of rights of guardianship of the father, he cannot be held guilty of the offence under Section 361 IPC.”

Thus it held prima-facie case is not made out for the offence under Section 363 IPC and continuation of prosecution would amount to abuse of the process of Court.

Appearance: Advocate Rohit Kumar Singh for Advocate Sajid Goodwala for Petitioner.

HCGP Jairam Siddi for R1.

Advocate Sharad M Patil for R2.

Citation No: 2024 LiveLaw (Kar) 349

Case Title: ABC AND State of Karnataka

Case No: CRIMINAL PETITION NO.102394 OF 2023

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