Biological father cannot be held guilty of kidnapping if he takes away his minor child from the custody of the mother.

In its judgment, the Bombay High Court reasoned that a biological father is considered a natural guardian of his minor child under Indian law.

If biological father takes the child from the custody of the mother, he cannot be charged with kidnapping under Section 361 of the Indian Penal Code (IPC), which deals with kidnapping from lawful guardianship. The court emphasized that unless there is malicious intent or intent to harm the child, the father’s act of taking the child does not amount to an illegal offense.

Taking note of the facts of the instant case, the Court had to consider whether a father can be booked for the offence of kidnapping for taking away his own minor child from the custody of the mother and whether it would attract the offence under Section 363 IPC.

Perusing S. 361 of IPC, the Court noted that Explanation added to S. 361 includes the words “lawful guardian” which includes 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 proposition of term ‘lawful guardian’.

Since the parties were governed by Hindu law, the Court took note of Section 4(2) of The Guardians and Wards Act, 1890 which defines a ‘guardian’ as a person having the care of the person of a minor or of his property, or of both is person and property. Furthermore, the Court took note of S. 6 of Hindu Minority and Guardianship Act, 1956, which contemplates that for a Hindu minor, the father is a natural guardian and after him, the mother.

Here are the summaries of the similar cases:

1. The case of Ismail Aboobaker and Others vs. State of Kerala was decided by the Kerala High Court on March 28, 1967. whether taking the child from the mother's custody constituted a criminal offense, examining whether it fell under kidnapping or a similar charge. The courts upheld the principle that the father, being the natural guardian, does not commit a criminal offense by asserting his rights over the child, even if the child is temporarily in the mother's care.

2. Orissa High Court in case of Shri Ashok Kumar Seth vs. State of Orissa 2002, In this case too Orissa High Court equally held that the father cannot be booked for taking away his minor child from the custody of his wife because he is the natural guardian, and therefore, the offence punishable under Section 363 of the IPC cannot be attracted against him.

3. Capt. Vipin Menon vs. The State of Karnataka and Another (1992):

   This case involved a custody dispute over a minor child between Capt. Vipin Menon and his father-in-law, Mr. Nambiar. Capt. Menon had taken his daughter, Soumya, from her maternal grandparents' house without informing them, leading to accusations of kidnapping. However, the court found that since Menon was the natural guardian, no kidnapping charges could be sustained. The High Court quashed the criminal proceedings, ruling that a parent’s removal of their child from another family member's custody does not constitute kidnapping.

4. Court of Its Own Motion vs. Ram Lubhaya and Another (1984):

   This case centered on a suo motu action taken by the court to address a legal issue of public concern. These types of cases often involve significant matters where the judiciary intervenes to uphold legal principles or protect individual rights. The specific details of the case involved issues related to due process and justice being administered fairly in a criminal case.

   Khyali Ram and Ors. vs. State of U.P. (1971):

   This case dealt with the issue of identification and wrongful conviction based on inadequate evidence. The Supreme Court of India ruled in favor of the accused, holding that the identification evidence used was unreliable, thereby setting important precedents on evidence law, especially concerning identification parades and eyewitness reliability in criminal cases.

5. Chandrakala Menon (Mrs) and Anr. vs. Vipin Menon (Capt) and Anr. (1993):

   This case also revolved around the custody of Soumya, the daughter of Chandrakala and Capt. Vipin Menon, as their marital relationship broke down. The couple had filed for mutual divorce, and the main issue was the child’s custody. The court ruled that while Vipin Menon was the natural guardian, the custody of a child must always be based on the best interests of the child, not just legal rights.

6. Maunish Dinkar Shaw and Ors. vs. State of Gujarat and Ors (2023):

   This recent case pertained to legal complexities involving familial disputes, particularly related to child custody and the involvement of the courts in ensuring that the child's welfare remains the paramount concern. The court reiterated that custody disputes should be resolved by focusing on the child's best interests, a recurring theme in family law jurisprudence.

   These cases collectively highlight the courts' emphasis on ensuring justice, especially in sensitive family and criminal matters where the rights of natural guardians and evidence law are pivotal.

So as to attract the offence under Section 363 IPC, it is essential to consider Section 361 IPC.

Section 361 IPC reads as follows.

361. Kidnapping from lawful guardianship.— Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under 2[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 the said provision contemplates that the words “lawful guardian” in the aforesaid section includes any person lawfully entrusted with the care or custody of such minor or other person.