Source: Bombay High Court

Why in News?

The Bombay High Court (HC) has held that a father can only be charged with kidnapping when he takes his minor child away from the mother if there is a court order that explicitly prohibits him from having custody of the child in the matter ABC v. XYZ.

What is the Background of the ABC v. XYZ Case?

• A First Information Report (FIR) was lodged at the instance of the biological mother, against the biological father.
  • It was alleged that the applicant father forcibly took away their minor son aged 3 years, and thus committed an offence of kidnapping.
• The father has applied to quash the FIR for the offence punishable under Sections 363 of the Indian Penal Code (IPC).
• The issue pertains to the fact that whether a father can be booked for the offence of kidnapping for taking away his minor child from the custody of the mother.
• The counsel for the applicant (father) submitted that:
  • The applicant being a father and natural guardian of a minor, he cannot be booked for the aforesaid offence.
  • The reliance was placed upon following case laws:
    • Ismail Aboobaker and ors v. State of Kerala (1967), Kerela High Court held that when a father takes his minor child from the custody of the mother, he is not taking the child out of the keeping of the lawful guardian.
    • Shri Ashok Kumar Seth v. State of Orissa (2002), the Orissa High Court ruled that the father cannot be prosecuted for removing his minor child from his wife's custody, as he is the child's natural guardian. Consequently, the offense described under Section 363 of the IPC does not apply to him.

What were the Court’s Observations?

• A division bench of HC comprising Justice Vinay Joshi and Justice Valmiki SA Menezes, quashed the FIR filed by the child's biological mother, which accused the father of forcibly taking their 3-year-old son registered under Sections 363 of the IPC.
• The court, while observing that it is not a case that the mother was lawfully given custody of the child by the order of a competent court, stated that “Therefore, in our view in absence of legal prohibition, a father cannot be booked for the offence of kidnapping of his own child”.

What are the Legal Provisions Involved?

• The IPC defines Kidnapping from lawful guardianship under Section 361 and punishes the same under Section 363.
  • Section 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 includes 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 the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

• • Section 363 - Punishment for kidnapping - Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.