The Gujarat High Court has restated that a father who is the natural and legal guardian of a child under five years old cannot be charged with the offense of kidnapping from lawful guardianship under Section 361 of the Indian Penal Code (IPC) for taking the child away from the mother’s custody. In a ruling by Justice Ilesh J. Vora, a single judge bench, the court dismissed the criminal case against the accused and emphasized that for Section 361 of the IPC to apply, the person must be kidnapped from lawful guardianship, which does not apply if the father is the legal guardian of the child. Therefore, taking custody of his own child from his wife does not constitute an offense under Section 361 of the IPC.
The husband and his driver were accused by the wife of taking her three-year-old son from their house without her consent. The wife filed an FIR against them under IPC sections 452, 363, and 114, alleging house trespass and kidnapping. The accused were later arrested and filed a petition under Section 482 of the CrPC to quash the chargesheet. During the hearing, their lawyer argued that the husband is the father of the child and has the lawful right to custody, so taking the child away from the mother cannot be considered kidnapping from lawful guardianship under Section 361 of the IPC.
The State’s Additional Public Prosecutor, V.C. Shah, argued during the hearing that the allegations in the FIR indicated a cognizable offense, and hence, the High Court should not use its jurisdiction under Section 482 of the CrPC unless there are extraordinary circumstances. However, the High Court observed that while the wife may have the status of a legal guardian in relation to others, she does not hold that status against the child’s father or any other person appointed as the legal guardian by a competent court.
The Gujarat High Court has decided that a father, as a natural and legal guardian, cannot be accused under Section 361 of the Indian Penal Code for taking his child under five years of age away from the mother’s custody. Thus, the allegations against the husband and his driver for offenses under IPC sections 363 and 452 are not valid. The court concluded that continuing criminal proceedings against them would be an abuse of legal process and dismissed the FIR and all related proceedings against them.
Source: https://www.livelaw.in/news-updates/gujarat-high-court-natural-lawful-guardian-father-mother-son-below-5-years-of-age-section-361-of-ipc-kidnapping-offence-223412
