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 the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

Essentials for kidnapping 

Some of the following essential must be followed for the process of kidnapping : 

1. Taking or enticing: The term ‘takes’ means allowing with or without the use of force to move, escort or fall into possession. Taking doesn’t need to consist of a single act. A whole series of acts could together constitute the process of taking; the act is complete only when the minor is out of his legal possession of his guardians. When the accused takes the minor away with him, the act of taking is complete whether he was willing or not. The word ‘entice’ involves an idea of inducement in the other through exciting hopes or desires. It means the child is seduced or attracted to go with the accused. The minor’s mental attitude is relevant in the enticement. The promise of marriage made to the minor girl for leaving the lawful guardian’s house shall be regarded as an enticement. The distance to which minor is being taken is also immaterial. If the accused removes the keeping of the legal guardian without the guardian’s consent and returns to his house after a minor return sometime, the accused shall still be held liable for the offence.
2. Without the guardian’s consent: The child’s consent is completely irrelevant and it is the guardian’s consent alone that is taken into consideration because the child is deemed unable to give valid consent. The consent of the guardian given under this section should not be under fraud or misrepresentation and must be free. The convicted party shall also be responsible for the crime if the guardian consents after the crime is committed. It should also be noted that kidnapping is a strict liability offence i.e. the accused’s intention is immaterial. Thus, even if the accused took a minor out of the guardian’s keeping for a good cause, he is still liable for the kidnapping offence. 
3. Out of keeping the rightful guardian: The word ‘keeping’ means within the guardian’s protection or care. The minor needn’t be in the guardian’s physical custody. It connotes the idea of charging and safeguarding whether real or constructive.
4. The guardian may not always have the child in their direct physical custody, but as long as the guardian knows the child’s whereabouts and controls the child’s movement, the guardian is said to have the child in their care. The child is said to be kidnapped when a child is taken to such an area outside the circle where the guardian no longer knows the child’s whereabouts nor any control over his moves.

The laws of guardianship in kidnapping 

• To entail taking a minor’s consent is immaterial and requires neither coercion nor fraud. It was held that it is not appropriate to show that the accused would intend to make improper use of the minor and that the offence consisted of violations of the guardian ‘s rights. Section 361 of the Indian Penal Code, however, is intended to protect minors and persons of an unhealthy mind rather than the rights of such persons’ guardians. 
• Therefore, this does not justify as broad an interpretation of the term “taking” as annexed to Section 498 of the Indian Penal Code, which is intended primarily to protect the rights of the husband rather than the woman. This proposal can be adequately illustrated as in which a person who gave in to a married woman’s requests was found guilty of taking or attracting such a woman for the purposes set out in Section 498 of the Indian Penal Code. Consequently, it follows that the definition of taking concerning abduction offences requires careful analysis. 
• The recent decision of the Supreme Court in Varadarajan v. Madras State is elaborate. A senior graduate student who has lived her life in a metropolitan city, Mudholkar, J. observed, is not an unsophisticated person and is much more able to think for herself and act independently than maybe an unlettered rural person. It was at the Supreme Court that the appeal by Varadarajan was heard on a point of law with approval. The crucial issue that emerged for the verdict was whether the accused was guilty of the abduction act in which the minor claimed to have been kidnapped by the accused person luckily abandoned her father’s safety and was able to realise the full meaning of what she was doing, thereby joining the accused willingly.
• This brings in the similarly critical issue of whether the minor will leave his or her own guardian’s guardianship. It has been held that a minor can not be found to have left a guardian of her own accord for offences under section 498 of the Indian Penal Code. When she enters the accused person’s custody, he may be convicted of an offence under section 498, even in the absence of evidence of the accused’s overt act.
• The accused shall be guilty of an act which, in law, must amount to “taking.” In the Kerala case named as V.K. Rajappan v. State Of Kerala, it was noted that the accused must commit an act which may be regarded as the proximate cause of the person leaving the guardian as he did. While commenting on this rule of law, the Supreme Court held in Varadarajan that the mere circumstance that the accused’s act was not the immediate cause of the girl leaving the protection of her father would not absolve him if he had solicited her at an earlier stage or induced her to take the step in any way.
• It has also been explained in Biseswar Misra v. The King, that mere passive consent on the part of a person to give shelter to the minor does not amount to taking or seducing the minor, but to actively bring about her stay in the house by playing on her weak and hesitant mind is equivalent to taking the girl within the meaning of section 361, Penal Code.

361 IPC Case Laws (Supreme Court and High Courts)

Conclusion 

In conclusion, it may be stated that the word “taking” can be interpreted to include all cases of a person’s indirect inducements to affect the minor’s intent to leave the guardian. Determining who is taking the initiative isn’t of material importance. The accused’s subsequent assistance in carrying out the intent of the minor to leave her guardian is a “taking.” It may be recalled that the law, by providing that the “mental attitude of the minor is irrelevant in the case of taking,” recognises that the minors are unable to make an independent judgment in respect of their actions.

FAQs about Kidnapping from Lawful Guardianship

Read also:- Indian Penal Code (IPC) Few Important Sections, Crimes and Punishment

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