Kidnapping from Lawful Guardianship
Author By- Pooja Koul
Abstract- The author of this article discusses the provisions regarding kidnapping and kidnapping from lawful guardianship. Section 359 to 374 defines kidnapping and the punishments which are associated with the crime. A father taking his child from his mother who has the custody of the child does not result in kidnapping unless and until mother has agreed or given her consent to the father, but if the mother refuses to give her consent and father acts against that, then it will result in the kidnapping. This article concludes that the consent of the lawful guardian and the child is very important and the crimes against children shall be prevented with some strict laws and a safe environment should be made for minors.
In this article, we will briefly discuss kidnapping and what is kidnapping from lawful guardianship and also what punishments are given to the person who is guilty of this horrendous crime. Indian laws have banned kidnapping since 2005, people kidnap minors to exploit them for ransom and force them to perform awful activities.
Kidnapping is defined as a crime in which a person is taken away against their will by force and threat. Under section 359 kidnapping is categorized into two types i.e., kidnapping from India and kidnapping from lawful guardianship. Section 359 to 374 of the Indian Penal Code, 1860 provides punishments for these offenses.
Kidnapping from India Section 360
Section 360 defines kidnapping from India. According to this section if a person takes another person beyond the borders of India without the consent of that person and against the consent of someone who is legally entitled to that person, then the offense of kidnapping from India is committed.
Illustration- Mr. X lives in New Delhi. Mr. Y takes Mr. X to Japan without his consent. So, in this Mr. Y has committed the offense of kidnapping from India as he didn't ask for Mr. X's permission and took him to Japan without his consent.
Kidnapping from lawful guardianship Section 361
Section 361 explains kidnapping from lawful guardianship. Whoever takes any minor below sixteen years of age (if a male) or less than 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, without the consent of a guardian, is said to have kidnapped the minor or person from lawful guardianship. The words lawful guardian in this section includes any person lawfully trusted with the care of custody of such minor or another person.
Essentials of Kidnapping from lawful guardianship:
Minor/person of unsound mind- Below the age of sixteen (if a male) or eighteen (if a female) are minors or a person of unsound mind or someone who is not mentally stable.
Taken away from lawful guardian- Minor or unsound mind person taken away from the guardian against his consent.
Without the guardian's consent.
Illustration-P is a girl who is living with her mother H who is also her lawful guardian. D convinces P to accompany him to his house without the consent of her mother. Under section 361, D has committed the crime of kidnapping from lawful guardianship.
There is an exception which is also mentioned in this section which says that it does not result in the offense of kidnapping from lawful guardianship, if the person is in good faith, i.e., honestly with reason, believes that:
· He is entitled to the lawful custody of the child.
· He is the father of an illegitimate child.
So, if in the above-mentioned illustration, D believes that P is his illegitimate daughter, then his act of convincing her to accompany him to his house will not result in kidnapping from lawful guardianship.
In the case, State of Haryana v. Raja Ram, Section 361 is to protect minor children from being seduced for improper purposes and to protect the rights and privilege of guardian’s having their custody. The consent of a child is completely immaterial and only the guardian's consent is relevant to decide whether the offense was committed or not. Taking as mentioned in the section is not only through fraud or force but also through persuasion by the accused which creates willingness on the part of the minor to be taken away from his/her lawful guardian.
Can a father be liable for kidnapping his son?
Aforementioned in this article and the same mentioned in Section 361 of IPC that if the person is entitled to the lawful custody of the child or if the person is the father of an illegitimate child or if the person is with the good intention then it does not result in the crime of kidnapping from lawful guardianship. A father cannot be liable for kidnapping his son unless and until his intentions towards the child are justifiable. In case, if the custody of the child is with the mother, the consent of both the child and the mother is important as she is the lawful guardian of the child. If the father wants to take his child with him to his house, the consent of the mother (lawful guardian) and the child is important and if the mother refuses to give her consent then the father cannot take any further actions against the mothers’ consent.
The Supreme Court in Pradeep Kumar v. the State of Bihar and Anr., held that the consent obtained by lying to the father of the girl regarding the purpose of taking his minor daughter away cannot be termed as consent under the purview of this section and such taking away would amount to kidnapping.
Kidnapping is a dangerous act that harms the freedom of a person and it is defined under Sections 359 to 369 of IPC, 1860and these laws go a long way in securing the liberty of people. They give protection to children against kidnapping and prevent them from getting exploited. In India there are over 100,000 plus cases of kidnapping and abduction of minors and these cases are increasing steadily. To overcome these offenses, the state needs to work together. There is a very much required need to prevent these horrendous crimes related to minors for example forced sexual acts, forced begging, marriages, selling and buying, etc. Children require liberty and freedom to live their childhood days but these activities are subjected to mental torture and physical torture which ruins their golden days of life.
 https://www.indiacode.nic.in/show-data actid=AC_CEN_5_23_00037_186045_1523266765688§ionId=46132§ionno=361&orderno=405#:~:text=Whoever%20takes%20or%20entices%20any,such%20minor%20or%20person%20from