Father Taking Away His Own Minor Child From Mother's Custody Doesn't Constitute Kidnapping: Jharkhand High Court

The Jharkhand High Court has held that a father, being the natural guardian of his minor child, cannot be prosecuted for kidnapping under Section 363 of the Indian Penal Code merely for taking away his own son from the custody of his wife. The Court observed that the essential ingredients of the offence are not satisfied where the accused himself is the child's natural guardian.

A Single Judge Bench of Justice Anil Kumar Choudhary quashed criminal proceedings initiated against a man accused of kidnapping his four-year-old son, voluntarily causing hurt and wrongful restraint.

The petitioner had approached the High Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking quashing of the order by the Judicial Magistrate, Dhanbad, taking cognisance of offences punishable under Sections 323, 341 and 363 of the IPC.

According to the complaint, the petitioner's wife had gone to Dhanbad Railway Station with their four-year-old son after being called by the petitioner. It was alleged that the petitioner took away the child and, when the complainant later went to his house, she was assaulted by the petitioner and his family members.

The Magistrate, relying upon the complaint, the complainant's solemn affirmation and the statements of inquiry witnesses, found a prima facie case under Sections 323, 341 and 363 IPC and issued summons.

Before the High Court, the petitioner contended that as the father of the child, he was the natural guardian and, therefore, the offence of kidnapping could not be made out. He further submitted that there was no allegation of bodily pain so as to attract Section 323 IPC, nor any allegation of wrongful restraint to constitute an offence under Section 341 IPC.

The State and the complainant opposed the petition, submitting that if the allegations were accepted in their entirety, all the offences were prima facie made out.

Examining the ingredients of the offence under Section 363 IPC, the Court observed that the prosecution must establish, among other things, that the accused took the minor away from the keeping of a lawful guardian without that guardian's consent. Applying these principles, the Court held:

“The undisputed fact remains that the petitioner being the father of the victim is the natural guardian of the victim. So, under such circumstances, the petitioner taking his own son is not sufficient enough to constitute the offence punishable under Section 363 of the Indian Penal Code.”

The Court also found that the complaint did not disclose the essential ingredients of the offences under Sections 323 and 341 IPC. It observed that there was no allegation that the petitioner had caused any bodily pain, disease or infirmity to the complainant and that “the mere allegation that maar peet was done” was insufficient to constitute the offence of voluntarily causing hurt under Section 323 IPC.

Similarly, the Bench noted that there was no allegation that the petitioner had obstructed the complainant from proceeding in any direction in which she had a right to proceed, thereby ruling out the offence of wrongful restraint under Section 341 IPC.

Holding that none of the offences for which cognisance had been taken were made out even if the allegations were accepted at face value, the Court observed that continuation of the prosecution would amount to an abuse of the process of law. It accordingly quashed the entire criminal proceeding and the Magistrate's order taking cognisance.

Case Title: Khalid Eqbal v. State of Jharkhand and Anr.

Case Number: Cr.M.P. No. 2725 of 2025.

Appearance: Mr. Baban Prasad for the Petitioner. Mrs. Nehala Sharmin for the State. Mr. Zaid Ahmed for Opposite Party No. 2.

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