A father who forcibly takes his minor child from the custody of the child's mother, who has been granted custody by a divorce court order, is guilty of kidnapping under Section 361 of the Penal Code, even if the father is the child's natural guardian.

Headnote:
KIDNAPPING - SECTION 361 OF THE PENAL CODE - INTERPRETATION - LAWFUL GUARDIAN - CUSTODY OF MINOR CHILD - EXCEPTION TO SECTION 361 - GOOD FAITH - SECTION 3 OF THE INDIAN LAW REPORTS ACT, 1875 - BINDING NATURE OF DECISIONS OF HIGH COURTS.
Fact of the Case:

The respondent, the father of a minor girl, forcibly took her from her mother, who had been granted custody of the girl by a divorce court order. The respondent claimed that as the father, he was the natural guardian of the girl and therefore entitled to her custody. The trial court acquitted the respondent, holding that he could not be guilty of kidnapping under Section 361 of the Penal Code because he was the girl's father and therefore her lawful guardian.
Finding of the Court:

The High Court allowed the appeal and convicted the respondent of kidnapping under Section 361 read with Section 34 of the Penal Code. The court held that the respondent was not entitled to the custody of the girl under the divorce court order, and that his act of forcibly taking her from her mother constituted kidnapping. The court also held that the respondent could not rely on the exception to Section 361, which provides that a person who takes a minor child in good faith, believing himself to be entitled to the lawful custody of the child, is not guilty of kidnapping, because he did not act in good faith.
Issues: 1. Whether the respondent, as the father of the minor girl, was her lawful guardian and therefore entitled to her custody, despite the divorce court order granting custody to the mother? 2. Whether the respondent's act of forcibly taking the girl from her mother constituted kidnapping under Section 361 of the Penal Code? 3. Whether the respondent could rely on the exception to Section 361, which provides that a person who takes a minor child in good faith, believing himself to be entitled to the lawful custody of the child, is not guilty of kidnapping?
Ratio Decidendi: 1. The court held that the respondent was not entitled to the custody of the girl under the divorce court order, which had granted custody to the mother. The court held that the words "lawful guardian" in Section 361 of the Penal Code have a wider connotation than the words "legal guardian," and that the mother was the lawful guardian of the girl by virtue of the divorce court order. 2. The court held that the respondent's act of forcibly taking the girl from her mother constituted kidnapping under Section 361 of the Penal Code. The court held that the respondent had taken the girl from the keeping of her lawful guardian without the consent of the lawful guardian. 3. The court held that the respondent could not rely on the exception to Section 361, which provides that a person who takes a minor child in good faith, believing himself to be entitled to the lawful custody of the child, is not guilty of kidnapping. The court held that the respondent did not act in good faith because he was aware of the divorce court order granting custody to the mother.
Final Decision: The High Court allowed the appeal and convicted the respondent of kidnapping under Section 361 read with Section 34 of the Penal Code. The court sentenced the respondent to one year of probation under Section 5(1) of the Bombay Probation of Offenders Act, 1938.

Judgment

Shelat,J.

1. This appeal raises a point of some interest on the interpretation of Section 361 of the Penal Code.

2. The facts alleged by the prosecution were that wit. Rukhmabai was married to the respondent No. 1 Ramji Vithal Chaudhari, original accused No. 1, when Rukhmabai was only 7 or 8 years of age. For nearly 10 to 12 years the 1st respondent and the said Rukhmabai lived as a husband and wife and during that period a daughter by the name of Suman was born to her. In or about 1943 disputes arose between the 1st respondent and Rukhmabai. In or about the year 1944-45 the 1st respondent) married again with the result that Rukhmabai went to live with her father, one Hari Trimbak, with her minor daughter Suman. These disputes ultimately culminated in Rukhmabai filing a suit for divorce in the Court of the District Judge at Dhulia. A decree was passed in that suit in favour of Rukhmabai which ordered that the marriage between Rukhmabai and the 1st respondent was thereby annulled. The decree also directed that the minor girl Suman was to remain in the custody of Rukhmabai "till the defendant (the 1st respondent) gets himself appointed as the guardian of the minor under the Guardians and Wards Act". It is admitted that since the passing of the decree the minor Suman was residing with her mother Rukhmabai at the house of Hari Trimbak and Rukhmabai was and has been looking after the minor girl Suman, keeping her and giving her the necessary education.

3. At all material times respondent No. 1 was residing in a different village called Shahade, which is about two miles away from the village Shinde where Hari Trimbak, Rukhmabai and Suman Were residing.

4. On 31-1-1955 Suman had gone to the school at Shinde. At about 2 p.m. she, as usual, cleansed her class room and was there with her friend one Suryaprahba. At that time the 1st respondent went to the school and passing through various classes reached the class in the Sixth form where Suman was sitting. Immediately he entered that class room, he started pulling Suman forcibly from out of the class. Both Suman as well as some teachers of the school resisted the 1st respondent taking away Suman but the 1st respondent paid no heed to them. He forcibly took Suman out of the class room and to the wire compound of the school and picking her up placed her in a bullock cart which was kept ready there by the 2nd respondent. Both the respondents thereafter drove Suman away in the bullock cart and thus carried her to the village called Small Shahade. Hari Trimbak in course of time was informed of this incident by the school teachers, and in consequence of that information Hari Trimbak lodged an application with the Police Patil narrating the incident of the respondents having carried away Suman. The Police Patil wrote out a khabari report and sent it to the Out-Post of Misal in Nandurabar Taluka. It appears that the police officer concerned had some doubt as to whether the respondents could be said to have committed an offence of kidnapping under Section 363 with the result that there was some delay in the matter of proceeding with this case. It appears that the case was in fact referred to for the opinion of the Police Prosecutor at Nandurbar. Ultimately both the respondents were charge-sheeted of having committed an offence under Section 363 of the Penal Code.

5. The defence taken by the 1st respondent was that the girl had stayed widi him only for 2 or 4 days and that thereafter he had sent her back to Shinde in a bullock cart. His case was that he was the father of the girl and as such her lawful guardian. On merits, his case was that Suman was in the habit of coming to his place at Shahade on several previous occasions. On this occasion also Suman had gone up to the 1st respondents house and stayed with him for 4 or 5 days as usual and that therefore he had not committed any offence. He also contended that as a father and, therefore, a legal guardian of the girl, it was his right to set

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