-Kusha
Introduction
Kidnapping from lawful guardianship.—Whoever takes or entices any minor under sixteen years of age if a male, or under 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 of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation—The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or another person.
Exception— This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of the such child unless such act is committed for an immoral or unlawful purpose. STATE AMENDMENT
S. Vardarajan v. State of Madras
Facts: A minor girl was living with her father and studying in a college. She had become friendly with the appellant whom she wanted to marry. However, her father did not approve of it and took her to the house of a relative and left her there so that for some time she was kept as far away from the accused as possible. However, on the next day, she telephoned the appellant asking him to meet her. Then they went to the registrar’s office and got registered an agreement to marry. The appellant was convicted under Section 363 and his appeal to the High Court was dismissed. The matter went to the Supreme Court.
Issue: Whether the accused can be said to have “taken” her away from the keeping of her guardian?
Decision: The Court acquitted the appellant on the grounds that there was no evidence that she had left the house at the instance of the appellant. She had herself decided to marry him as at no time the appellant used force. She was on the verge of attaining the majority. Thus, she was capable of thinking for herself.
Thakorlal Vadgama v. State of Madras
Facts: The appellant had come into contact with the family of Mohini, a minor girl. He developed a relationship with them. He also presented Mohini with various articles as gifts. At Mount Abu, he was actually found by the side of Mohini in her bed by Mohini’s mother. At this, the Mohini’s parents rebuked her for being so intimate with the accused. But the accused swore that he always treated Mohini as his own daughter. Thereafter, the accused continued to meet Mohini secretly and exchanged letters. In her letters, Mohini wrote incidents of rebuking by her mother and beating. The appellant gave an indication that he would keep her with him permanently. At this, she left her father’s house and went to the appellant’s factory. He kept her in the garage of his bungalow for two days. The trial court and the high court convicted the accused under Sec.363 of IPC and Sec.366 of IPC respectively. The accused made an appeal to Supreme Court.
Issues: Whether the accused kidnap Mohini from lawful guardianship? Whether he did do so with an intention contemplated by Sec.366 of IPC?
Decision: The court held that the accused participated in the formation of the girl’s intention and resolve to leave her parent’s house. The inducements made by the accused operated on the girl’s mind to stay in his house and do so as he told her to do. The court held that Mohini was kidnapped from lawful guardianship, with an intention contemplated by Sec.366 of IPC. The appeal was thus dismissed.
State of Haryana v. Raja Ram
Facts: One Jainarain, a quack of the village, while rendering medical aid to the girl’s father at her house became intimate with the girl and tried to seduce her. He persuaded her to accompany him, promising to give her good clothes, food, and everything she wanted. He then asked Raja Ram to persuade and bring her to a pre-arranged place at night. He did according to the pre-arranged plan.
The trial court convicted both accused under Sec.366. The High Court maintained the conviction against Jainarain but acquitted the accused on the ground that the girl left the house of her own free will.
Decision: The Supreme Court while considering the meaning and scope of Sec.361 said that the object of this section seems as much to protect the minor children…..as to protect the rights and privileges of the guardians…. The words “takes or entices……out of the keeping of the lawful guardian” in Sec.361 are significant.
In the present case, facts clearly establish the guilt of the accused. He actively participated in the formation of her intention to leave the house. Her consent or willingness to accompany the accused would be immaterial.
R v. Prince
Facts: Henry Prince was accused of abducting a 14-year-old girl, Annie Philips, having believed her to be 18 years old. Such an act was at that time in violation of the article or section 55 of the relevant statute law, regarding minors. Prince argued that he had made a reasonable mistake in regard to Phillips’s age.
Decision: The Court held that this was a bad argument. Her real age must be taken into consideration. The taking must be from the lawful guardian. Moving with the girl is important and it completes the offence.
R v. D
It held that the offence of kidnapping cannot be committed by a parent who takes away his unmarried minor child. However, a parent may be guilty of kidnapping his child if that child had attained majority or has lawfully married under that age since in either case, the child has passed out of the possession of his parents.
Vipin Menon v. State
It was held that the father, in the absence of divestment of right of guardianship, cannot be guilty of kidnapping his minor child. Where a minor daughter was in her mother’s custody under the court’s order (the mother had obtained a divorce), and the father forcibly removed the daughter from a school, the father was held guilty of kidnapping the daughter.
Ganga Dayal Singh v. State of Bihar
Facts: P.W. 4 Hardeo Thakur is the father of the minor girl. He and the appellant were doing potato business. On the previous night, namely, the intervening night of 11th and 12th September 1969, the appellant came to the house of P.W. 4 and the next morning he abducted the minor girl. She was seen being taken away by one of the witnesses whose evidence was recorded in the Committal Court. But before the trial was taken up, he died. Therefore, his evidence was brought on record under Section 288 of the old Criminal Procedure Code. Apart from that, other witnesses have been examined to establish the circumstances. Five circumstances have been established as against the appellant. The appellant and the complainant were together doing potato business, the accused used to go to the house of the complainant, in the eventful night, the appellant stayed at the house of the complainant; in the morning the appellant was seen taking the minor girl and thereafter the minor girl disappeared and her whereabouts are not known.
Decision: The appellant was charged for the offence under Section 366, Indian Penal Code and was convicted by the Assistant Sessions Judge for kidnapping a minor girl Asha Kumari aged 15 years on September 12, 1969, from Mahalla Maripur in Muzaffarpur town. He was sentenced to 7 years of rigorous imprisonment and also to pay a fine of Rs. 1000 and in default to undergo rigorous imprisonment for one year. Both sentences were directed to run concurrently. The High Court confirmed the same.
Goorroodoss Rajbunsee
A person carried off, without the consent of her father, a girl to whom he was betrothed by her father because the father suddenly changed his mind and broke off the engagement, it was held that he was guilty of kidnapping.
Legal Thirst has created a telegram group for exchanging legal knowledge, Events, and various opportunities.
You can click on this link and join:
Follow Legal Thirst on Instagram and Subscribe to our YouTube channel for more amazing legal content.
