Kopar Khairane

Bombay High Court: Father Who Takes Child Away from Mother’s Custody Cannot Be Charged with Kidnapping

<p>A father who removes his child from the mother’s care cannot be accused of kidnapping the child since he is the child’s legal guardian, according to a recent decision by the Bombay High Court. The ruling states, “The father of the minor cannot be said to have committed the offence under Section 361 of the IPC so as to be punished under Section 363 of the Code of Criminal Procedure, as the father of the minor is also a lawful guardian along with the mother.”<img decoding=”async” class=”alignnone wp-image-264304″ src=”https://www.theindiaprint.com/wp-content/uploads/2023/11/theindiaprint.com-bombay-high-court-father-who-takes-child-away-from-mothers-custody-cannot-be-charg.jpg” alt=”theindiaprint.com bombay high court father who takes child away from mothers custody cannot be charg” width=”1316″ height=”986″ srcset=”https://www.theindiaprint.com/wp-content/uploads/2023/11/theindiaprint.com-bombay-high-court-father-who-takes-child-away-from-mothers-custody-cannot-be-charg.jpg 259w, https://www.theindiaprint.com/wp-content/uploads/2023/11/theindiaprint.com-bombay-high-court-father-who-takes-child-away-from-mothers-custody-cannot-be-charg-150×112.jpg 150w” sizes=”(max-width: 1316px) 100vw, 1316px” title=”Bombay High Court: Father Who Takes Child Away from Mother's Custody Cannot Be Charged with Kidnapping 3″></p>
<p>A parent was seeking the quashing of a FIR in which he was accused of abduction under the Indian Penal Code. The father’s appeal was being heard by a division bench of the Nagpur high court, which is made up of Justice Vinay Joshi and Justice Valmiki Menezes.</p>
<p>The complainant, the mother, claimed that their three-year-old boy had been taken away by force by the father on March 29, 2023, an act she believed to be abduction.</p>
<p>The father’s attorney, Pahan Dahat, contended that the father’s acts did not amount to the abduction offense as that term is defined in Section 361 of the IPC and is not punished under Section 363 of the IPC. He emphasized that the father should not be held accountable for the aforementioned offense since he is the minor’s natural protector.</p>
<p>The bench cited the Hindu Minority and Guardianship Act of 1956’s definition of the natural guardian and noted that, absent a court ruling to the contrary, the father is regarded as the minor’s natural guardian.</p>
<p>The offense is considered to have been committed if the legally appointed guardian of the child is removed from care of the minor before the legal age prescribed by the law. The ruling states, “It is not a case that the mother was lawfully entrusted with the minor’s care or custody by the order of competent Court.”</p>
<p>Therefore, the division bench came to the conclusion that a parent cannot be charged with kidnapping his own child.</p>
<p>According to Section 4(2) of the Guardians and Wards Act, “Guardian” refers to any anyone who is responsible for looking after a minor’s person or belongings. Consequently, the ruling says, “In our opinion, a father cannot be charged with the crime of kidnapping his own child if there is no legal prohibition.”</p>
<p>The bench further emphasized that even if a father removes a child from their mother, who may be the child’s legitimate guardian against anyone else save the father or someone designated as a legal guardian by a court order, the father, as the child’s natural guardian, cannot be charged under Section 361 of the IPC.</p>
<p>The judgment also said that the father cannot be held accountable for an offense under Section 361 of the IPC as long as his rights as the natural guardian have not been properly withdrawn.</p>
<p>Because the requirements for abduction were not met, the court went forward and dismissed the case that had been filed against the father.</p>
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