Karnataka High Court: While hearing the instant petition seeking to quash the FIR registered against the petitioner by Khadebazar police station, Belagavi, under Section 3631, Penal Code, 1860 for allegedly taking away his 2-year-old minor son from the house of his estranged wife, thereby committing the offence of kidnapping; the Bench of Venkatesh Naik T., J.*, perusing the relevant provisions under Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956, pointed out that, a father is a natural guardian of a minor in the absence of any order otherwise passed by a Court of competent jurisdiction. The Court further stated that the father of a child will not come within the scope of S. 3612 of IPC, even if he takes away the child from the custody of the mother.
The petitioner (father) attended the 2nd birthday of his child. On 20-08-2023, he took the child away from the house and informed his wife that he has arranged a birthday programme for his child, and he took his son so that he can seek blessings from his paternal grandparents and relatives. Hence, the mother of child being the de-facto complainant, booked the father for kidnapping punishable under Section 363 of IPC.
The counsel for the petitioner contended that a father being a natural guardian of a minor, cannot be booked for kidnapping.
Taking note of the facts of the instant case, the Court had to consider whether a father can be booked for the offence of kidnapping for taking away his own minor child from the custody of the mother and whether it would attract the offence under Section 363 IPC.
Perusing S. 361 of IPC, the Court noted that Explanation added to S. 361 includes the words “lawful guardian” which includes 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 fall within proposition of term ‘lawful guardian’.
Since the parties were governed by Hindu law, the Court took note of Section 4(2) of The Guardians and Wards Act, 1890 which defines a ‘guardian’ as a person having the care of the person of a minor or of his property, or of both is person and property. Furthermore, the Court took note of S. 6 of Hindu Minority and Guardianship Act, 1956, which contemplates that for a Hindu minor, the father is a natural guardian and after him, the mother.
Therefore, the Court had no doubts as to the petitioner being a natural guardian to his 2-year-old son in absence of any order otherwise passed by a competent Court. It was further pointed out that the instant matter was not a case where the mother was lawfully entrusted with the care or custody of the minor by the order of competent Court. Therefore, the petitioner was found to be the natural guardian to the child. The Court stated that in the absence of any prohibition of the order of the competent Court, the petitioner cannot be booked for taking away his own minor child from the custody of the mother.
Pointing out that the father of a child will not come within the ambit of S. 361, IPC, the Court said that the mother may be lawful guardian as against any other person 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 as there is no divestment of rights of guardianship of the father, he cannot be held guilty of the offence under Section 361 IPC.
The Court therefore concluded that no prima facie case was made out for the offence under Section 363 IPC against the petitioner and continuation of such prosecution amounts to abuse of process of Court. Therefore, the impugned FIR was quashed.
[Kushagra v. State of Karnataka, 2024 SCC OnLine Kar 68, decided on 04-07-2024]
*Order by Justice Venkatesh Naik T.
Advocates who appeared in this case :
For petitioner- ROHIT KUMAR SINGH, ADVOCATE for SAJID AHMED GOODWALA, ADVOCATE
For respondents: JAIRAM SIDDI, HCGP FOR R1; SHARAD M. PATIL, ADV. FOR R2
Buy Penal Code, 1860 HERE
1. Corresponding Section 137(2) of Nyaya Sanhita (BNS)
