It referred to the Hindu Minority and Guardianship Act of 1956 which defines the “natural guardians” of a child and said that it was abundantly clear that the applicant father before it, was a natural guardian of a minor in absence of an order otherwise passed by a court of competent jurisdiction.
“If the minor of the age specified in the law, is taken out of the custody of the lawful guardian of such a minor, then the offence would be complete. It is nota case that the mother was lawfully entrusted with the care or custody of the minor by the order of competent Court,” the Court observed.
In case at hand, the applicant is a natural guardian and he is a lawful guardian too along with the mother, the order said.
In the absence of any prohibition by the order of a competent court, the applicant father cannot be booked for taking away his own minor child from the custody of his mother.
“The expression “Guardian” under Section 4(2) of the Guardians and Wards Act, encompasses any person who is having the care of the person of a minor or of his property. Therefore, in our view in absence of legal prohibition, a father cannot be booked for the offence of kidnapping of his own child,” the bench underlined.
Source: Barandbench
