In a recent ruling, the Nagpur bench of the Bombay High Court, in the case of Ashish Anilkumar Mule vs State of Maharashtra, held that a father who took his child from the custody of the mother cannot be charged with kidnapping under the Indian Penal Code (IPC).
The court emphasized that in the absence of any court order prohibiting the father’s actions, he cannot be accused of kidnapping when taking his own minor child from the mother’s custody. The division bench, comprising Justices Vinay Joshi and Valmiki SA Menezes, quashed a case registered against a man under Section 363 (kidnapping) of the IPC for taking away his three-year-old son, who was under the custody of his estranged wife.
The court’s judgment, delivered on October 6, clarified that a biological father cannot be charged with kidnapping when taking his own child from the mother. It noted that the act of the natural father taking the child from the mother’s custody essentially transfers the child from the lawful guardianship of the mother to the lawful guardianship of the father. The court explained that the natural father of the minor child is also a lawful guardian, along with the mother. Thus, the father cannot be held liable for the offense of kidnapping.
The court referred to the Hindu Minority and Guardianship Act of 1956, which defines the “natural guardians” of a child. It emphasized that in the absence of a court order specifying otherwise, the applicant father in this case was a natural guardian of the minor.
The court clarified that if a minor is taken out of the custody of the lawful guardian without legal prohibition, the offense of kidnapping is not established. In the case at hand, the applicant was both a natural and lawful guardian, and no court order had divested him of his guardianship rights.
The judgment concluded that a father who takes his child from the mother’s custody, in the absence of a legal prohibition, should not be charged under Section 361 of the IPC. A mother may be a lawful guardian against any person except the father or any other person appointed as a legal guardian by a court.
Based on these legal principles, the court found that no prima facie case existed against the applicant and considered the continuation of the prosecution as an abuse of the court’s process. Consequently, the court allowed the application, quashing and setting aside the First Information Report (FIR) registered against the applicant.
Advocates Pavan Dahat and AB Moon represented the applicant, while the State was represented by Additional Public Prosecutor Ghodeswar, and Advocate VN Mate represented the complainant. This ruling provides important legal clarity regarding parental rights and custody issues.