IMPORTANT POINT
A father cannot be charged with kidnapping his own child from the mother’s custody unless a court order restricts his guardianship rights.

ORDER :

(Venkatesh Naik T., J.) :

Heard learned counsel for the petitioner, learned H.C.G.P for respondent No.1 State and learned counsel for respondent No.2-defacto complainant.

Though the matter is listed for admission, with the consent of learned counsel appearing for the parties, the matter is taken up for final hearing.

This is a petition seeking to quash the first information report in Cr.No.53/2023 registered by Khadebazar police station, Belagavi for the offence punishable under Section 363 IPC.

2. At the instance of first information lodged by respondent No.2/biological mother, a crime has been registered against the petitioner/ biological father. First informant mother has alleged that on 20.08.2023 at 7.00 p.m., the petitioner-father forcibly took away their minor son aged about two years, from the house of defacto – complainant and thus committed offence of kidnapping.

3. A short issue that falls for consideration is "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?

4. Learned counsel for the petitioner would submit that by no stretch of imagination, the act of the petitioner/accused attracts the offence of kidnap as defined under Section 361 IPC punishable under Section 363 IPC. The petitioner being a father and natural guardian of a minor, he cannot be booked for the aforesaid offence.

5. Admittedly, there is no dispute that the parties are governed by Hindu Law. It is not in dispute that the petitioner-accused is the biological father and first informant is the biological mother of a minor son, aged about two years.

6. Under such circumstances, it is just and necessary to analyse Section 361 IPC. Section 361 IPC reads as under:-

“361. Kidnapping from lawful guardianship.—

Whoever takes or entices any minor under sixteen years of age if a male, or under 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.— The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person.

(Exception)— This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.”

The Explanation added thereto includes the words “lawful guardian” to include 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'.

7. The parties are governed under Hindu Law. Hence, it is just and necessary to analyse the term 'guardian' as defined under Section 4(2) of The Guardians and Wards Act, 1890, which reads as under:-

“4. Definitions

In this Act, unless there is something repugnant in the subject or context,

(1) xxxxxxxx

(2) “guardian” mean’s a person having the care of the person of a minor or of his property, or of both is person and property:”

The term 'guardian' means a person having the care of the person of a minor or of his property, or of both is person and property.

8. From the perusal of Section 6 of The Hindu Minority and Guardianship Act, 1956, it contemplates that for Hindu minor, the father is a natural guardian and after him, the mother.

9. Sub-clause (a) of the said Act speaks about the custody of a minor upto the age of five years. Therefore, it is clear that the petitioner-father is a natural guardian of a minor, in the absence of the order otherwise passed by the Court by competent jurisdiction. Section 361 IPC speaks about lawful guardian as explained in the Section it