Nagpur: If a man takes away his son from the wife’s custody, would it amount to kidnapping? The Nagpur Bench of Bombay High Court says ‘no’. A division bench comprising Justice Vinay Joshi and Justice Valmiki Menezes held that the biological father cannot be booked under Section 361 (kidnapping from lawful guardianship) and Section 363 (punishment for kidnapping) of IPC in such cases, unless a competent court has granted the minor child’s custody to the mother.
“The effect of a natural father taking away the child from custody of the mother in the real sense amounts to taking a child from the lawful guardianship of the mother to another lawful guardianship of the father. Natural father of the minor is also a lawful guardian along with the mother. Therefore, he cannot be said to have committed the offence under Section 361 to be made punishable under Section 363,” the court said.
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Friday 28 March 2025
Quashing the FIR lodged by a woman against her husband, the bench said in the absence of legal prohibition, a father cannot be booked for kidnapping of his own child. “The father cannot come within the scope of Section of 361, even if he takes away the child from the mother. She may be a lawful guardian along with the father or any other person who has been appointed as a legal guardian by virtue of an order of a competent court. So as long as there is no divestment of the rights of the guardianship of a father, he cannot be held guilty of an offence under Section 361.”
The Amravati police had booked the Buldhana-based petitioner for kidnapping on the wife’s complaint that he had forcibly taken their three-year-old son with him on March 29.
