Father Cannot Be Booked for Kidnapping His Own Child: Bombay High Court

In a landmark ruling, the Bombay High Court, Nagpur Bench, clarified that a father cannot be accused of kidnapping his own child. The judgment, dated 06^th October 2023, quashed an FIR lodged against Shri Ashish Mule, who was accused of kidnapping his 3-year-old son.

Justice Vinay Joshi, in his oral judgment, stated that a father, being the natural guardian, cannot be booked for taking away his own minor child from the custody of the mother. The case revolved around whether a father could be charged with kidnapping for taking his own minor son from the mother’s custody.

The Court observed, “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 judgment referred to Section 361 of the IPC and Section 6 of the Hindu Minority and Guardianship Act, 1956, concluding that the father is a “natural guardian” and a “lawful guardian” along with the mother.

The Court also referred to similar precedents set by the Orissa, Kerala, Karnataka, Punjab and Haryana, and Allahabad High Courts. Justice Joshi remarked, “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.”

In light of these observations, the Court held that continuing the prosecution would amount to abuse of the process of the Court. Consequently, the FIR lodged against Shri Ashish Mule for the offense punishable under Section 363 of the IPC was quashed and set aside.

Legal experts believe that this ruling sets a significant precedent and clarifies the legal position on guardianship and custody matters involving parents.

Date of Decision: 6 October 2023

Shri Ash ish VS State of Maharashtra