New Delhi: In a recent ruling, the Bombay High Court has stated that a father, as a lawful guardian, cannot be accused of kidnapping his child if he takes the child away from the mother’s custody. The court emphasized that the natural father, being a legal guardian alongside the mother, cannot be held responsible for kidnapping under Section 361 of the IPC, punishable under Section 363 of the Code of Criminal Procedure.
The case was brought before a division bench in Nagpur, comprising Justice Vinay Joshi and Justice Valmiki Menezes. The plea was filed by the father, seeking the quashing of an FIR where he was charged with kidnapping based on the complaint of the mother. She alleged that the father forcibly took away their 3-year-old son, which she considered an act of kidnapping.
The father’s lawyer argued that his actions didn’t meet the criteria for kidnapping under Section 361 of the IPC. The bench referred to the Hindu Minority and Guardianship Act of 1956, highlighting that, in the absence of a court order stating otherwise, the father is the natural guardian of the minor child.
The court clarified that for the offense of kidnapping to occur, the minor must be taken out of the custody of the lawful guardian, as defined by the law. Since the mother wasn’t legally entrusted with the custody of the minor by a competent court order, the father couldn’t be charged with kidnapping his own child.
The ruling underscored that unless there is a legal prohibition, a father cannot be accused of kidnapping his own child, taking into account his status as the child’s natural guardian.
