Father who took away his child from mother's custody cannot be booked for kidnapping: Bombay High Court

A father who took away his child from the custody of the mother cannot be booked for kidnapping under the Indian Penal Code, the Nagpur bench of the Bombay High Court recently held [Ashish Anilkumar Mule vs State of Maharashtra].

In the absence of any prohibition by the order of a competent court, the applicant-father cannot be booked for taking away his own minor child from the custody of his mother, the Court ruled.

A division bench of Justices Vinay Joshi and Valmiki SA Menezes quashed a case registered against a man under Section 363 (kidnapping) of IPC for allegedly taking away his three-year-old son who was under his estranged wife's custody. 

In a judgment delivered on October 6, the Court said that no biological father could be booked for kidnapping his own child merely because he took away the kid from his wife.

"The effect of natural father taking away the child from custody of the mother in real sense amounts to taking a child from the 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 of kidnapping," the Court held. 

It referred to the Hindu Minority and Guardianship Act of 1956 which defines the "natural guardians" of a child and said that it was abundantly clear that the applicant father before it, was a natural guardian of a minor in absence of an order otherwise passed by a court of competent jurisdiction. 

"If the minor of the age specified in the law, is taken out of the custody of the lawful guardian of such a minor, then the offence would be complete. It is nota case that the mother was lawfully entrusted with the care or custody of the minor by the order of competent Court," the Court observed. 

In case at hand, the applicant is a natural guardian and he is a lawful guardian too along with the mother, the order said.

In the absence of any prohibition by the order of a competent court, the applicant father cannot be booked for taking away his own minor child from the custody of his mother. 

"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 bench underlined. 

Therefore, 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 mother, the Court stated.

A mother may be a lawful guardian as against any person except the father or any other person who has been appointed as a legal guardian by a 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 363 of the IPC," the bench made it clear. 

Based on these facts, the Court held that no prima facie case was made out against the applicant before it.

"Continuation of such prosecution amounts to abuse of the process of the Court, hence, the application is allowed. We hereby quash and set aside the First Information Report (FIR) registered against the applicant," the bench said while quashing the case. 

Advocates Pavan Dahat and AB Moon appeared for the applicant.

Additional Public Prosecutor Ghodeswar represented the State. 

Advocate VN Mate represented the complainant.