Source: Punjab & Haryana High Court

Why in News?

Recently, the Punjab & Haryana High Court has held that when a minor who is of the age of discretion willingly leaves the house of her parents with the accused, he cannot be charged with the offence of kidnapping.

What was the Background of this Case?

• In the present case, the accused was booked in January this year on the complaint moved by the girl’s father.
• He was booked by Fatehgarh Sahib Police for allegedly kidnapping a 17-year-old girl to compel her to marry him.
• The accused applied for bail before the Punjab & Haryana High Court.
• The accused said that he was falsely implicated in the case. He submitted that he was in a relationship with the girl, and they wanted to marry each other but her family members were against it.
• While granting relief to the accused, the Court reasoned that since the girl was 17 years and 4 months old, she was of the age of discretion and at the verge of attaining majority.

What were the Court’s Observations?

• Justice Manisha Batra observed that when a minor who is of the age of discretion willingly leaves the house of her parents with the accused, he cannot be charged with the offence of kidnapping.
• It was stated it is a well settled law that the question of taking of the minor from her lawful guardianship must be decided with reference to all the circumstances including whether the girl was of sufficient maturity and intellectual capacity to think for herself and make up her own mind.
• It was further stated that it falls short of an inducement to the prosecutrix to slip out of keeping of her lawful guardian and does not tantamount to taking within the meaning of definition of kidnapping under Section 361 of the Indian Penal Code, 1860 (IPC).

What is the Offence of Kidnapping?

Kidnapping from Lawful Guardianship

• Section 361 of IPC deals with kidnapping from lawful guardianship. It states that-

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.

Punishment for kidnapping

• Section 363 of IPC deals with the punishment for kidnapping.
• It states that 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.