The Gujarat High Court has reaffirmed that the father, being the natural and lawful guardian of a child below the age of five, cannot be charged with an offence under Section 361 (Kidnapping from lawful guardianship) of the IPC for removing the child from the mother’s custody.
Justice Ilesh J. Vora, the single judge bench, quashed criminal proceedings against the accused and stated that for an offence to be committed under Section 361 of the IPC, there must be a kidnapping of a person from lawful guardianship, which is not the case when the father is the lawful guardian of the minor in question. Therefore, the father cannot be accused of committing an offence under Section 361 of the IPC by taking custody of his own child from his wife.
The wife of the applicant-husband filed (FIR) against her husband and his driver, accusing them of illegally entering their house and taking away her minor son, who was around 3 years old, without her consent. The FIR was registered under Section 452 (House-trespass after preparation for hurt, assault or wrongful restraint), Section 363 (Punishment for Kidnapping), and Section 114 (Abettor present when offence is committed) of IPC, alleging that the accused committed the offence of kidnapping and house trespass.
After being apprehended, the applicants filed a petition under Section 482 of CrPC seeking to quash the chargesheet filed against them for the aforementioned offences. During the hearing, the counsel for the applicants, M.U. Vora, argued that the applicant is the father of the child and is entitled to the lawful custody of the child. Therefore, the act of taking away the child from the mother cannot be considered an offence of kidnapping from lawful guardianship under Section 361 of the IPC.
During the hearing, the State’s Additional Public Prosecutor, V.C. Shah argued that the allegations made in the FIR indicated the commission of a cognizable offence, and therefore, the High Court should not exercise its jurisdiction under Section 482 of CrPC unless there exist exceptional circumstances to do so.
However, the High Court noted that the wife may have the status of a lawful guardian in relation to other persons, but not against the child’s father or any other person appointed as the legal guardian by a competent court.
The Gujarat High Court ruled that a father, being a natural and lawful guardian, cannot be charged under Section 361 of the Indian Penal Code for removing his son below 5 years of age from his mother’s custody.
Therefore, the allegations made in the FIR against the applicant-husband and his driver for offences under Section 363 and Section 452 of the IPC are not tenable. The court held that the continuation of the criminal proceedings against the applicants would amount to an abuse of process of law and subsequently quashed the FIR and other related proceedings against the applicants.
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?infinitescroll=1
