“Biological Father Can’t Be Booked For Kidnapping A Child In Absence Of Legal Prohibition”: Bombay HC

The Nagpur bench of the Bombay High Court on Thursday has ruled while quashing an FIR registered against a 35-year-old man that, “a biological father can’t be booked on charges of kidnapping his child in the absence of legal prohibition”.

A division bench comprising 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 can’t be booked for taking away his own minor child from the custody of the mother.

The court stated,“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.”

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 registered against the man, on a complaint by his estranged wife, with the Amravati police for allegedly kidnapping their 3-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 stated that he was the child’s father and natural guardian and hence he can’t 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 stated for a Hindu minor, the father is a natural guardian and after him, the mother.

HC stated, “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.”