Can father be charged with abduction?
A father who removed his child from the mother's care can he be charged with abduction ?
The Court decided that a father can not be charged for removing his own minor kid from the mother's custody unless there is a specific prohibition imposed by an order from a competent court.
As per the recent ruling in Ashish Anilkumar Mule vs State of Maharashtra, the Nagpur bench of the Bombay High Court found that a father who removed his child from the mother's custody cannot be charged with abduction under the Indian Penal Code.
The Court decided that the applicant-father can not be charged for removing his own young child from his mother's custody unless there is a specific prohibition stated in an order issued by a competent court.
The IPC's Section 363 (kidnapping) case against a man was dismissed by a division bench of Justices Vinay Joshi and Valmiki SA Menezes for allegedly removing his three-year-old son from his divorced wife's custody.
The Court ruled on October 6 that a biological father could not be charged with kidnapping his own child just for removing the child from his wife.
In actuality, the act of a natural father removing a kid from the mother's legal custody equates to transferring the child from the mother's legal guardianship to the father's legal guardianship.
The minor's father can not be deemed to have committed the crime of kidnapping because he is the child's natural father, and both of them are legitimate guardians, the court said.
It stated that it was obvious that the applicant father before it was a natural guardian of a minor in the absence of an order otherwise issued by a court of competent jurisdiction, citing the Hindu Minority and Guardianship Act of 1956, which defines the "natural guardians" of a child.
"The offense would be considered complete if the minor of the legal age was removed from the custody of their legitimate guardian. The mother was not properly granted custody or care of the kid by an order from a competent court, the Court said.
According to the order, the applicant and the mother are both the applicant's natural and legal guardians in this situation.
If a competent judge does not issue an order prohibiting it, the application father can not be charged with removing his own young child from his mother's custody.
According to Section 4(2) of the Guardians and Wards Act, "Guardian" refers to any individual who is responsible for looking after a minor's person or property. Thus, the bench emphasized, "In our opinion, a father can not be charged with the crime of kidnapping his own child if there is no legal prohibition."
Consequently, even if a father removes a kid from its mother, he will not be subject to section 361 of the IPC, the Court declared.
A mother may act as a child's legal guardian against any individual, with the exception of the father and anybody else designated by a court as a legal guardian.
"So long there is no divestment of the rights of the guardianship of a father, he can not be guilty of an offense under Section 363 of the IPC," the court stated.
Based on these details, the Court determined that there was no prima facie evidence against the applicant in front of it.
"The application is granted because it would be an abuse of the court's process to continue with this prosecution. The panel quashed the case and declared, "We hereby quash and set aside the First Information Report (FIR) registered against the applicant."
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For further details contact:
Dr. Ajay Kummar Pandey
( LLM, MBA, (UK), PhD, AIMA, AFAI, PHD Chamber, ICTC, PCI, FCC, DFC, PPL, MNP, BNI, ICJ (UK), WP, (UK), MLE, Harvard Square, London, CT, Blair Singer Institute, (USA), Dip. in International Crime, Leiden University, the Netherlands )
Advocate & Consultant Supreme Court of India, High Courts & Tribunals.
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