P lures Q a girl of 17 years, to Delhi, without the consent of Q’s father. What offense, if any, has been committed by P in this case?

Question: P lures Q, a girl of 17 years, to Delhi, without the consent of Q’s father. What offense, if any, has been committed by P in this case?

Find the answer to the mains question only on Legal Bites. [P lures Q a girl of 17 years, to Delhi, without consent of Q’s father. What offense, if any, has been committed by P in this case?]

Answer

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.

Explanation.—The words ‘lawful guardian’ in this section include any person lawfully entrusted with the care or custody of such minor or another person.

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.

All that is required to bring an action within the purview of this section, is to ‘take or entice’ a minor or a person of unsound mind from the keeping of the lawful guardian. ‘Taking’ implies no active or constructive force. The word means ‘to go, to escort’.

The consent of the minor child is of no relevance. Consent given by a minor or a person of unsound mind is not consent. But there must be some active part played by the accused of ‘taking’ the minor.

Since, in the present case, P had lured Q, a girl of minor age i.e. below 18 years to go to Delhi without consent of her father is said to be punishable for the kidnapping of Q from lawful guardianship and is punishable under Section 363, IPC.

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