A, a Hindu woman takes away her minor legitimate daughter B without the consent of her husband C (the father of B) for the purpose of marrying B. A is prosecuted for ‘kidnapping’ her minor daughter B. During the trial, A takes…

Question: A, a Hindu woman takes away her minor legitimate daughter B without the consent of her husband C (the father of B) for the purpose of marrying B. A is prosecuted for ‘kidnapping’ her minor daughter B. During the trial, A takes the defence that she is also the guardian of B, so the question of ‘kidnapping from lawful guardianship’ does not arise. Decide, and also refer to the relevant case law, if any, on the point.

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Answer

In Chandrakala v. Vipin Menon [(1993) 2 SCC 6] the Supreme Court declined to convict the father, who was accused of kidnapping his minor daughter who was living with her maternal grandfather due to a strained relationship between her parents, on the ground that the accused was the natural guardian of the child.

So, a natural guardian cannot be said to have kidnapped a minor from lawful guardianship under Section 361, IPC.

However, Section 366 deals with kidnapping, abducting or inducing women to compel their marriage, etc. It states,

Whoever kidnaps or abducts any woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse,

or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine;

and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be,

or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person, shall also be punishable as aforesaid.

Abduction’ under this section becomes punishable if the victim had been carried of illegally by ‘force’ or ‘deception’ from one place to another place. The intention of the accused, whoever it may be, be it her natural guardian if the intention is to compel a woman to marry or to submit to sexual intercourse against her will is the basis of the section. Intention, volition or conduct of the woman is irrelevant, especially when the girl is minor.

The Supreme Court has observed in the landmark case of Thakoral D Vadgama v. State of Gujarat [(1973) 2 SCC 413] as follows:

“The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in Section 361, IPC.

But if the guilty party has laid a foundation by inducement, allurement or threat, etc, and if this gain can be considered to have influenced the minor or weighed with her in leaving her guardian’s custody or keeping and going to the guilty party, then prima facie it would be difficult for him to plead innocence on the ground that the minor had voluntarily come to him.”

Therefore, in the present case, when A, a Hindu woman takes away her minor legitimate daughter B without the consent of her husband C (the father of B) for the purpose of marrying B cannot be held liable under Section 363 for the offence of kidnapping from lawful guardianship but will be squarely liable under Section 362 for the abduction of a minor child to compel her for marriage.

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