Father can’t be booked for kidnapping own child: HC

A man cannot be booked for kidnapping his own child, even if he takes the child from his wife's custody, ruled the Nagpur bench of the Bombay high court.

MUMBAI: A biological father cannot be booked for kidnapping his own child even if he forcibly takes away the child from his wife’s custody, the Nagpur bench of the Bombay high court ruled recently, striking down a criminal case against a 35-year-old man.

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On March 29 this year, Buldhana resident Ashish Mule was booked by the Gadge Nagar police in Amravati for kidnapping his son under section 363 oof the Indian Penal Code (IPC). This was following a complaint by his estranged wife, who claimed that he had forcibly taken away their 3-year-old son from her custody.

The following month, Mule approached the Nagpur bench of Bombay high court, contending that being a biological father and natural guardian of the child, he could not be booked for kidnapping as defined under section 361 and punishable under section 363 of the IPC.

The division bench of justice Vinay Joshi and justice Valmiki Menezes accepted his contention and struck down the criminal case against him. The bench noted that section 361 of IPC defines kidnapping as taking away of a male under 16 years of age and a female under 18 years of age from lawful guardianship. Moreover, section 6 of the Hindu Minority and Guardianship Act, 1956 states that the father of a minor Hindu is their natural guardian.

“In the case at hand, the applicant (Mule) is a natural guardian,” said the bench. “Moreover, he is a lawful guardian too along with the mother. Therefore, in absence of any prohibition by some order of the competent court (granting custody of the minor to his mother), the applicant father cannot be booked for taking away his own minor child from the custody of his mother.”

“So long as 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,” the bench noted in the order passed on October 6, striking down the criminal case against the Buldhana resident.