The recent decision by the Nagpur bench of the Bombay High Court stated that a father who removes his child from the mother's custody cannot be charged with kidnapping under the Indian Penal Code. As long as there is no legal restriction imposed by a competent court order, the applicant-father cannot be charged with a crime for removing his own underage child from the mother's care, as per the court's decision.

A division bench consisting of Justices Vinay Joshi and Valmiki SA Menezes has dismissed a case against a man who was accused of violating Section 363 of the Indian Penal Code (IPC), which pertains to kidnapping. The accusation was related to his alleged act of taking his three-year-old son from the custody of his estranged wife.

In a judgment issued on October 6, the Court ruled that a biological father cannot be charged with kidnapping for taking his own child from the mother. The court's reasoning was based on the idea that when the natural father takes the child away from the mother, it amounts to transferring the child from one lawful guardianship (mother's) to another lawful guardianship (father's). Both the natural father and mother are recognized as lawful guardians of the minor child, so the father's actions do not constitute the offense of kidnapping, as per the Court's decision.

The Court cited the Hindu Minority and Guardianship Act of 1956, which provides the definition of "natural guardians" for a child. The Court emphasized that it was evident that the applicant father in the case was considered a natural guardian of the minor child, unless a court of competent jurisdiction had issued an order to the contrary. 

The Court observed that for the offense of kidnapping to be established, it would require the minor to be taken out of the custody of the lawful guardian. In this specific case, it was noted that the mother was not lawfully entrusted with the care or custody of the minor child through an order issued by a competent court. Therefore, the Court's observation suggested that the essential elements for a kidnapping offense were not met in this situation because the mother did not have legal custody of the minor based on a court order.

In the specific case at hand, the court acknowledged that the applicant was not only a natural guardian but also a lawful guardian, sharing this status with the mother. The court further emphasized that, unless a competent court had issued an order prohibiting it, the applicant father could not be charged with a crime for removing his own underage child from the mother's custody.

The court highlighted that the term "Guardian" as defined in Section 4(2) of the Guardians and Wards Act includes any person who is responsible for the care of a minor or their property. Therefore, according to the court's perspective, unless there is a legal prohibition in place, a father cannot be charged with the offense of kidnapping for taking his own child, as he is considered a guardian of the child under the law.

The Court clarified that the father of a child would not fall under the purview of Section 361 of the Indian Penal Code (IPC), even if he takes the child away from the mother. The court further explained that a mother could be recognized as a lawful guardian in relation to any person except the father, or any other individual who has been officially appointed as a legal guardian by a court.

The bench made it unequivocally clear that as long as the father has not been deprived of his legal guardianship rights, he cannot be held responsible for an offense under Section 363 of the Indian Penal Code (IPC).

Given the circumstances and legal principles discussed, the Court determined that there was no apparent case against the applicant. The Court further concluded that continuing the prosecution in such a case would be an abuse of the court's process. Therefore, the Court allowed the application and proceeded to quash the First Information Report (FIR) that had been registered against the applicant, effectively dismissing the case.

Case: Ashish Anilkumar Mule vs State of Maharashtra, CRIMINAL APPLICATION NO.552 OF 2023.