A biological father taking lawful custody of his children with the mother's consent does not constitute kidnapping under Section 361 IPC.

ORDER :

Kuldeep Mathur, J. - With the consent of learned counsel appearing for the parties, the matter is taken up for final disposal.

2. The present criminal misc. petition has been preferred by the petitioner praying for the following reliefs:-

"It is, therefore most humbly and respectfully prayed that this misc. petition may kindly be allowed and the impugned FIR and further investigation in pursuance of the FIR No.0461/2023 lodged on 13.07.2023 at Police Station Amba Mata, District Udaipur as well as "Look-Out-Circular" issued by the official respondents may kindly be quashed and set aside in toto.

Any other appropriate order which this Hon'ble Court deems fit any proper in the facts and circumstances of the case may kindly be passed."

3. Learned counsel for the petitioner submitted that the petitioner who is the father of minor children namely Master Arjun Pokharna and Master Krishna Pokharna cannot be charged for the offences of kidnapping of his minor children, as defined under Section 361 IPC, punishable under Section 363 IPC.

4. Learned counsel submitted that the marriage between petitioner and respondent No.5 was solemnized as per Hindu rites and rituals on 12.11.2016. The parties are therefore governed under the Hindu law. Drawing attention of the Court towards Section 361 IPC, learned counsel submitted that the petitioner who is the biological father of children namely Master Arjun Pokharna and Master Krishna Pokharna, cannot be alleged to have kidnapped them on 23.06.2023.

5. Drawing further attention of the Court towards the F.I.R., learned counsel for the petitioner submitted that as a matter fact, the petitioner took lawful custody of the children on 23.06.2023 with due permission of her wife. It was urged that act and action of the petitioner in taking away the children from the mother with her due permission on 23.06.2023, does not amount to an offence of kidnapping as defined under Section 361 of the Indian Penal Code.

6. Learned counsel for the petitioner submitted that as per the settled law, no offence can be said to have been made out against the petitioner and therefore, it is a fit case to exercise inherent powers vested with this Court under Section 482 Cr.P.C. Reliance was placed on the following judgments:-

1. Shri. Ashish v. State of Maharashtra & Anr. (Criminal Application No.552 of 2023) (decided on 06.10.2023) passed by Hon'ble High Court of Judicature at Bombay, Nagpur Bench, Nagpur.

2. Geeta v. State of Haryana & Anr. (CRM-M-35177-2022 (O & M) (decided on 05.01.2024), passed by Hon'ble High Court of Punjab and Haryana at Chandigarh.

3. Maunish Dinkar Shaw & 1 other v. State of Gujarat & 1 Other (R/Criminal Misc. Application No.1341 of 2016) (decided on 03.03.2023), passed by Hon'ble High Court of Gujarat at Ahmedabad.

4. Shri. Ashok Kumar Seth v. State of Orissa reported in 2002 SCC Online Ori 138

7. Per contra, learned Public Prosecutor and learned counsel for the respondent No.5 submitted that respondent No.5 is natural guardian of her two minor sons namely Master Arjun Pokharna and Master Krishna Pokharna. Learned counsel submitted that on 23.06.2023, respondent No.5 handed over two minor sons to the petitioner on an assurance that both the minor sons will be dropped at the house of respondent No.5 (Udaipur) on 01.07.2023. However, the custody of the minor children was not handed over to the respondent No.5 by the petitioner which clearly demonstrates that he had forcibly taken them away or rather kidnapped the minor children.

8. Drawing attention of the Court towards section 6 of the Hindu Minority and Guardianship Act, 1956, learned counsel submitted that as per sub clause (a) of section 6 of the Hindu Minority and Guardianship Act, 1956, custody of a minor who has not completed the age of five years shall ordinarily be with the mother. It was urged that in the present case, Master Krishna is aged about 3.5 years and therefore, it is a clear case where his custody was taken away illegally by the peti