Biological Father Cannot Be Booked for Kidnapping a Child in Absence of Legal Prohibition: 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 of October 6 noted that in the absence of any prohibition by order of any court, the father was a lawful guardian along with the mother and hence he 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 offence 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, 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 continuation of such prosecution would amount to abuse of process of the court. In his petition seeking for the FIR to be quashed, the man said he was the child’s father and natural guardian and hence he cannot be booked on charges of kidnapping.

The court referred to the definition of 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, HC said.