A, having lost his own child developed a great affection for B, a child (aged 4 years) of a neighbour. Out of his attachment and love for the child, A sneaked into the neighbour’s house and took away the child intending to have his company…

Question: A, having lost his own child developed a great affection for B, a child (aged 4 years) of a neighbour. Out of his attachment and love for the child, A sneaked into the neighbour’s house and took away the child intending to have his company and then return him safely to his house. The parent of the child lodged a report about the child’s disappearance and A was thereafter caught while returning to the neighbour’s house to restore the child. What offence, if any, has been committed by him? [UPHJS, 1980, 1995]

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Answer

A has committed the offence of kidnapping from lawful guardianship of minor as punishable under Section 363, IPC.

Section 361 provides for Kidnapping from lawful guardianship.—

Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

The essential ingredients of the offence of kidnapping from lawful guardianship are:

1. taking or enticing away a minor or a person of unsound mind,
2. such a minor must be under the age of sixteen years, if a male, or under eighteen years, if a female;
3. the taking or enticing away must be out of the keeping of the lawful guardian of such minor or person of unsound mind, and
4. such taking or enticing away must be without the consent of such guardian.

If the above essentials are fulfilled the person can be made convicted under Section 363 of the code for kidnapping from the lawful guardianship.

However, there is also an exception to this section which says if anyone acts in good faith, either believes to be a parent of a child whom he believes to be an illegitimate child. Or if he acts in good faith with the belief that he is the lawful guardian of that child. Now the aspect of good faith will depend upon the facts and circumstances of each case.

But in the present case, A, having lost his own child developed a great affection for B, a child (aged 4 years) of a neighbour and out of his attachment and love for the child, A sneaked into the neighbour’s house and took away the child with the intention to return him back after some time.

Even the intention was not to take away the child forever but to return him back to his parents, the act was done without the consent of the parents of B. Hence, A, in this case, shall be made punishable for the kidnapping of a minor from lawful guardianship of his parents.

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