Father taking away child from custody of mother cannot be booked for kidnapping: Bombay HC

A biological father cannot be booked on charges of kidnapping his child in the absence of legal prohibition, the Nagpur bench of the Bombay High Court has ruled, quashing an FIR registered against a 35-year-old man.

A division bench of Justices Vinay Joshi and Valmiki SA Menezes, in its order dated October 6, noted that in the absence of any prohibition by a court order, the father is a lawful guardian along with the mother and, hence, cannot be booked for taking away his own minor child from the custody of the mother. The order was made available on Thursday.

"The expression 'Guardian' encompasses any person who cares for a minor. Therefore, in our view, in the absence of a legal prohibition, a father cannot be booked for the offense of kidnapping his own child," the court said. It added that the effect of the biological father taking away the child from the custody of the mother only amounts to taking the child from the custody of one natural guardian to another.

The bench quashed the FIR (first information report) registered against the man, based on a complaint by his estranged wife, with the Amravati police for allegedly kidnapping their three-year-old son on March 29, 2023, noting that the continuation of such prosecution would amount to an abuse of the court's process.

In his petition seeking the FIR to be quashed, the man stated that he was the child's father and natural guardian and, therefore, cannot be booked on charges of kidnapping.

The court referred to the definition of the natural guardian of a minor under the Hindu Minority and Guardianship Act and said, for a Hindu minor, the father is a natural guardian and, after him, the mother.

"It is abundantly clear that the father is a natural guardian of the minor. It is not a case that the mother (of the child) was lawfully entrusted with the care or custody of the minor by an order of any court," the HC said.