Father Lawful Guardian Of Child Below 5 Yrs, Removing Such Child From Mother's Custody Not Kidnapping U/S 361: Gujarat High Court

While quashing the criminal proceedings against the applicants, the single judge bench of Justice Ilesh J. Vora observed:

“In order to constitute an offence under Section 361 of the Indian Penal Code, there must be a kidnapping of a person from lawful guardianship. Here the applicant is himself the lawful guardian of the minor. It cannot therefore, be said that, he committed an offence under Section 361 of the Indian Penal Code by getting the custody of his own son from his wife.”

A FIR was registered by the wife of the applicant-husband under Section 452 (House-trespass after preparation for hurt, assault or wrongful restraint), Section 363 (Punishment for Kidnapping) and Section 114 (Abettor present when offence is committed) of IPC against her husband and his driver alleging that they had illegally entered into house and took away her minor son aged about 3 years from the lawful custody of her without her consent and thereby committed the offence of kidnapping and house trespass.

The applicants were apprehended and a chargesheet was filed for the abovementioned offences.

The applicants approached the High Court under Section 482 CrPC for seeking quashment of the said chargesheet.

The counsel for the applicant, M.U. Vora submitted before the court that the applicant is the father of the child who is entitled to the lawful custody of the child and therefore his act in taking away the child from the mother does not amount to an offence of kidnapping from lawful guardianship, within the scope of Section 361 of the IPC.

The APP for the State, V.C. Shah submitted before the court that the allegations levelled in the FIR disclosed the cognizable offence therefore the Court should not exercise its jurisdiction under Section 482 CrPC as no extra ordinary circumstances exist to exercise the jurisdiction.

The court observed that the wife may be a lawful guarding as against any other persons except the father or any other person who has been appointed as the legal guardian by virtue of an order of the competent Court.

The court held:

“Father being a natural and lawful guardian, removal by him of his son below 5 years of age from his mother is not an offence under Section 361. In the result, therefore, it is obvious that, even if all the allegations made in the FIR are held to be true and accepted in its entirety, no offence under Section 363 of the Indian Penal Code and Section 452 of the Indian Penal Code are made out against the applicants.”

The court further observed that the continuation of the criminal proceedings against the applicants is nothing but an abuse of process of law.

Accordingly, the court quashed and set aside the impugned FIR as well as other consequential proceedings against the applicants.

Case Title: Maunish Dinkar Shaw & Anr. v. State of Gujarat & Anr.

Case Citation: 2023 Livelaw (Guj) 48

Coram: Justice Ilesh J. Vora

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