Introduction
Even if a biological father forcibly removes child from his mother’s care, he cannot be charged for Kidnapping- Nagpur Bench, Bombay High Court.
Ashish Anilkumar Mule v. State of Maharashtra, CRIMINAL APPLICATION NO. 552 OF 2023:
Facts
A formal Complaint was filed by the mother against the biological father of the child for the act of removing the child, which was later on turned into FIR. The informant mother has alleged that, on 29.03.2023, the applicant father abducted their three-year-old boy by force, and thus he has committed an offence of kidnapping.
Issue
Whether a father who is infact a natural guardian can be booked for the offence of kidnapping or not ?
Contention of the Counsel for the father is that father being a natural guardian of the minor, cannot attract the offence of kidnapping as defined u/s 361 of the IPC, and thus not punishable u/s 363 of the IPC.
Observations of the High Court
The Court further clarified that in absence of any prohibition by the order of a competent court, the father cannot be charged for kidnapping his own child from the mother’s custody.
Justice Vinay Joshi and Justice Valmiki SA Menezes – Division Bench Nagpur, Bombay High Court – “quashed a case registered under Section363 IPC.
Court observed – Hindu Minority and Guardianship (HMGA) Act, 1956, which defines the term Natural Guardian of the minor. HMGA provides that for a child below the age of 5 years father is the natural guardian, and after father, mother is the natural guardian. Further Court observed that in absence of the order otherwise passed by a Court of competent jurisdiction, father is a natural guardian of a minor.
Bench observed that Sec. 363 provides “punishment for Kidnapping- 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.” Thus, for an established offence of kidnapping, minor should be taken away from the custody of the lawful guardian. In the present case it was alleged that father who is the natural guardian took away his three-year-old son from the custody of his mother forcibly”.
Therefore, the court observed that in the present case no legal custody was given to the mother by the court and thus essential requisite of the kidnapping were not present.
Court also interpreted the term “Guardian” as defined u/s 4(2) of the Guardians and Wards Act,1890 “guardian means any person having the care of the person of a minor or of his property, or of both is person and property.” Thus, court observed that in absence of legal prohibition, a father cannot be charged for the offence of kidnapping of his own child, as father is the natural guardian of the child.
The Court opined that no biological father being a natural guardian of the child could be booked for the offence of kidnapping under Section 363 of Indian Penal Code (IPC) of his own child merely as long as the father is not deprived of his legal rights in respect to guardianship.
Case Referred
Shri Ashok Kumar Seth vs. State of Orissa 2002 SCC OnLine Ori 138, in Paragraph 8 stated that unless there is legal prohibition by order of a Court of competent jurisdiction, the father cannot be booked for taking away his minor child 6 from the custody of his wife because he is the natural guardian and therefore, the offence under Section 363 of the IPC cannot be attracted against him for taking the child from the custody of the mother.
Decision of the Division Bench
The Division Bench clarified that “The effect of natural father taking away the child from custody of the mother in real sense amounts to taking a child from the 8 lawful guardianship of the mother to the another lawful guardianship of the father. Natural father of the minor child is also a lawful guardian along with the mother, and therefore, father of the minor cannot be said to have committed the offence under Section 361 of the IPC so as to made punishable under Section 363 of the Code of Criminal Procedure”. Based on these facts, the Court held that no prima facie case was made out against the applicant before it.
Conclusion
The High Court while quashing the FIR lodged against the father held that in absence of any prohibition by the order of a competent court, a father cannot be booked for kidnapping of his own minor child from the custody of the mother.
The Court concluded that continuation of such prosecution amounts to abuse of the process of the Court. The Court quash and set aside the First Information Report registered against the applicant.
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