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‘Consensual Affair’ not a defence against charge of kidnapping a minor: Supreme Court of India

“A minor girl’s infatuation with her alleged kidnapper cannot by itself be allowed as a defence, for the same would amount to surreptitiously undermining the protective essence of the offence of kidnapping.” The court held that a ‘consensual affair’ is not a defence against the charge of kidnapping. The Supreme Court of India presided over by J. N.V. Ramana, J. S.A. Nazeer & J. S. Kant laid down this ratio in the case of Anversinh Vs. State of Gujarat, [Criminal Appeal No. 1919 of 2010].  

The brief facts of the case are that the Appellant and prosecutrix were in love with each other. The prosecutrix left her home and went away with the Appellant to his village. After a Police Complaint by the family of the prosecutrix the were able to locate both of them and after a medical examination of the prosecutrix an FIR was filed against the Appellant. The trial court held the Appellant guilty for rape and kidnapping of the prosecutrix under Section 376, 363 & 366 of IPC. The High Court set aside the charge for rape as there was clear evidence that the relationship between the Appellant and the Prosecutrix was consensual and therefore the Appellant was charged for the offence of kidnapping under IPC. The main question before the Supreme Court was whether a consensual affair can be a defence against the charge of kidnapping a minor?

The Apex court stated that the evidence on record clearly states that the accused had induced the prosecutrix to reach at a designated place to accompany him, it observed that, “His core contention appears to be that in view of consensual affair between them, the prosecutrix joined his company voluntarily. Such a plea, in our opinion, cannot be acceded to given the unambiguous language of the statute as the prosecutrix was admittedly below 18 years of age.”

The Court observed that, “A perusal of Section 361 of IPC shows that it is necessary that there be an act of enticing or taking, in addition to establishing the child’s minority (being sixteen for boys and eighteen for girls) and care/keep of a lawful guardian. Such ‘enticement’ need not be direct or immediate in time and can also be through subtle actions like winning over the affection of a minor girl. However, mere recovery of a missing minor from the custody of a stranger would not ipso­facto establish the offence of kidnapping. Thus, where the prosecution fails to prove that the incident of removal was committed by or at the instigation of the accused, it would be nearly impossible to bring the guilt home.”

The Court further added that, “It bestows the ability to make crucial decisions regarding a minor’s physical safety upon his/her guardians. Therefore, a minor girl’s infatuation with her alleged kidnapper cannot by itself be allowed as a defence, for the same would amount to surreptitiously undermining the protective essence of the offence of kidnapping. Similarly, Section 366 of IPC postulates that once the prosecution leads evidence to show that the kidnapping was with the intention/knowledge to compel marriage of the girl or to force/induce her to have illicit intercourse, the enhanced punishment of 10 years as provided thereunder would stand attracted.”

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