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Taking Away Of A Minor By His/Her Father Can’t Amount To Kidnapping: High Court Of Bombay

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Citation: Criminal Application No.552 Of 2023

Coram: Vinay Joshi And Valmiki Sa Menezes, Jj.

Decided On: 06.10.2023.

Introduction:

This is an application seeking to quash the First Information Report in Crime No.431 of 2023 registered with the Gadge Nagar Police Station, Amravati City for the offence punishable under Sections 363 of the Indian Penal Code (‘IPC’). At the instance of the report lodged by the biological mother, crime has been registered against the biological father.

The mother in the present case has alleged that, on 29.03.2023 the applicant father forcibly took away their minor son aged 3 years, and thus committed an offence of kidnapping. Here the issue is whether a father can be booked for the offence of kidnapping for taking away his own minor child from the custody of the mother.

Facts:

The parties are here governed under Hindu law and It is contented that the applicant being a father and natural guardian of a minor, he cannot be booked for the aforesaid offence.

The explaination in the section 361 of IPC which defines kidnapping from lawful guardianship expands the word “Lawful guardian” to include any person lawfully entrusted with the care or custody of such minor or other person. However to complete the offence the person who takes away the minor must not fall within the conspectus of the terms “lawful guardian”.

And by Bare perusal of Section 6 of the Hindu Minority and Guardianship Act, 1956 conveys that for a Hindu minor, the father is a natural guardian, and after him, the mother. Sub-clause (a) only speaks about the custody of a minor up to the age of 5 years. Therefore, it is abundant clear that the applicant father is a natural guardian of a minor in absence of the order otherwise passed by a Court of competent jurisdiction.

Court’s Analysis and Judgement:  

In case at hand, the applicant is a natural guardian. Moreover, he is a lawful guardian too along with the mother, therefore, in absence of any prohibition by the order of the competent Court, the applicant father cannot be booked for taking away his own minor child from the custody of his mother.

The father of a child will not come within the scope of section of 361 of the IPC, even if he takes away the child from the keeping of the mother, she may be a lawful guardian as against any other except the father or any other person who has been appointed as a legal guardian by virtue of an order of the Competent Court. So long there is no divestment of the rights of the guardianship of a father, he cannot be guilty of an offence under Section 361 of the IPC.

The effect of natural father taking away the child from custody of the mother in real sense amounts to taking a child from the lawful guardianship of the mother to the another lawful guardianship of the father. Natural father of the minor child is also a lawful guardian along with the mother, and therefore, father of the minor cannot be said to have committed the offence under Section 361 of the IPC so as to made punishable under Section 363 of the Code of Criminal Procedure.

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Written by- Sushant Kumar Sharma

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Bombay High Court Appoints Paternal Aunt as Legal Guardian with Visitation Rights in Guardianship Case: considering the child’s best interest

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Title: ABC v. XYZ

Citation: Guardianship Petition No. 9 of 2023

CORAM: Hon’ble R.I. Chagla J. 

Introduction

This case revolves around a guardianship petition filed before the Bombay High Court. The court was tasked with determining the legal guardian of a four-year-old boy while also considering the rights of the child’s parents to have frequent visitation. The court’s decision aimed to strike a balance between the child’s best interests and the rights of the parents.

Facts of the Case

The petitioner, identified as ABC, filed a guardianship petition seeking legal guardianship of a four-year-old boy.

The child, referred to as XYZ, is the son of the petitioner’s late brother and his wife.

The child’s mother had expressed her inability to care for the child, given her personal circumstances and other responsibilities.

The petitioner, being the paternal aunt, expressed her willingness and capability to provide a stable and loving environment for the child.

The child’s father initially opposed the petitioner’s petition for guardianship.

Court’s Analysis and Decision

The paramount consideration of the court in guardianship matters is the best interests of the child. The court examined the child’s age, emotional well-being, and potential future prospects. The court recognized the inherent and fundamental rights of parents in the upbringing of their child. The child’s father had initially opposed the petitioner’s guardianship, which the court duly considered. The court took into account the mother’s expressed inability to care for the child. Her willingness to entrust the child to the petitioner’s care was an important factor in the court’s analysis. The court evaluated the petitioner’s living situation, financial stability, and emotional preparedness to provide a suitable environment for the child. The petitioner demonstrated a strong commitment to the child’s well-being. Depending on the child’s age and maturity, the court may consider the child’s expressed wishes. While the child was relatively young, the court took into account his comfort and emotional connection with the petitioner.

After a comprehensive review of the facts and circumstances, the court arrived at the following decision: The Bombay High Court, in Guardianship Petition No. 9 of 2023, ruled in favor of the petitioner, ABC. The court appointed the paternal aunt as the legal guardian of the four-year-old boy, XYZ. This decision was reached after considering the child’s best interests, the mother’s inability to care for the child, the father’s initial opposition, and the petitioner’s commitment and suitability to provide a loving and stable environment.

The court also recognized the importance of the child’s relationship with his parents and ordered that XYZ’s parents be granted the right to visit him frequently. This decision aimed to balance the child’s best interests with the rights of the parents and ensure his overall well-being and development.

In summary, the court’s decision granted legal guardianship to the paternal aunt while preserving the child’s relationship with his parents through frequent visitation.

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Written by- Tarishi Verma