A, a Hindu husband and wife B are living separately as a result of a decree of judicial separation granted by a Family Court. The custody of the minor legitimate daughter of A and B (aged 4 years) has also been given to B…

Question: A, a Hindu husband and wife B are living separately as a result of a decree of judicial separation granted by a Family Court. The custody of the minor legitimate daughter of A and B (aged 4 years) has also been given to B (the wife of A and mother of minor legitimate daughter) by the Family Court. One day A takes away his minor daughter while B is not present there. B prosecutes A for the kidnapping of her daughter from lawful guardianship. The argument advanced on behalf of A is that under Hindu law, the father is the guardian of his legitimate child, so he is not liable for the kidnapping of his daughter. Is A guilty of kidnapping his own daughter? Give reasons and also refer to the case law, if any, on the point. [Bihar A.P.P. (A.P.O.) 1989]

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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.

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.

However, the Supreme Court laid down an exception in the case of Chadrakala Menon & Anr. v. Vipin Menon [(1993) 2 SCC 6] giving the benefit of natural guardian of the minor child.

In this case, the appellant Chandrakala was married to Vipin Menon. They both were settled in the United States and were well employed. They had a child who was sent to India to live with her maternal grandparents. Unfortunately, differences arose between them and they decided to get separated.

While Vipin Menon filed an application for his daughter’s custody, the child continued to live with her maternal grandparents. One day, while the custody application was still to be decided upon, Vipin Menon took his daughter away with him to a different state. The grandparents lodged a complaint of kidnapping against him.

However, the court held that Vipin Menon was the natural guardian of the child. The Supreme Court declined to convict the father, who was accused of kidnapping his minor daughter on the ground that the accused was the natural guardian of the child.

So, based upon the reasoning of the judgment, it is clear to say that in the present case, A has not committed the offence of kidnapping a minor child from lawful guardianship.

Though, A, a Hindu husband and wife B are living separately as a result of a decree of judicial separation granted by a Family Court because A is the father of the child, a natural guardian and therefore he cannot be said to have been kidnapped the girl out of the custody of her mother and grandmother who are having legal guardianship of the child.

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