Father Cannot Be Booked For Kidnapping Own Minor Child From Custody Of Mother: Bombay High Court Quashes FIR
The Bombay High Court quashed a First Information Report (FIR) registered against a father for allegedly kidnapping his own minor child from the custody of the mother. The Court held that the father, as a natural and legal guardian, cannot be charged with kidnapping under Section 361 of the Indian Penal Code when taking the child from the mother's custody, unless there is a legal prohibition by order of a competent court. In this case, an application was filed to quash a First Information Report (FIR) registered against a father for allegedly kidnapping his own minor child from the custody of the mother.
The Division Bench of Justice Vinay Joshi and Justice Valmiki SA Menezes held, “In case at hand, the applicant is a natural guardian. Moreover, he is a lawful guardian too along with the mother, therefore, in absence of any prohibition by the order of the competent Court, the applicant father cannot be booked for taking away his own minor child from the custody of his mother.”
The Court said, “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.”
Advocate Pavan Dahat appeared for the Petitioner and Advocate Ghodeswar appeared for the Respondents.
The Court considered the relevant sections of the Indian Penal Code, specifically Section 361, which pertains to kidnapping from lawful guardianship.
The Court noted that, according to Section 361 of the IPC, a person can be charged with kidnapping if they take a minor out of the keeping of the lawful guardian without consent. However, the Court also referred to Section 6 of the Hindu Minority and Guardianship Act, which designates the natural guardians of a Hindu minor, stating that the father is the natural guardian of the child, and after him, the mother.
The Court emphasized that the father, being a natural guardian, cannot be charged with kidnapping when taking the child from the custody of the mother. The Court said, “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 Court cited legal precedents from various high courts, supporting the view that the father, as a natural and legal guardian, cannot be criminally liable for taking the child from the mother's custody.
Consequently, the Court concluded that a prima facie case for the offense of kidnapping under Section 363 of the IPC was not established in this situation. The Court said, “The effect of natural father taking away the child from custody of the mother in real sense amounts to taking a child from the 8 lawful guardianship of the mother to the another lawful guardianship of the father. 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 Court deemed the prosecution an abuse of the court's process and quashed the FIR registered against the father, allowing the application.
Cause Title: Ashish v. State of Maharashtra & Anr., [2023:BHC-NAG:15914-DB]
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