He is also a natural guardian of the child, points out judge

A person cannot be booked under Section 363 (punishment for kidnapping) of the Indian Penal Code for taking away his child from the custody of his estranged wife or in-laws as he is also a natural guardian of the kid, the Madras High Court Bench here has said.

Justice A. Selvam made the observation while setting aside a recent order passed by a Thanjavur Judicial Magistrate who had refused to discharge an individual from a case booked under Section 363 on the basis of a private complaint lodged by his wife.

Allowing a criminal revision case filed through counsel R. Gandhi, Mr. Justice Selvam ordered to discharge him from the case forthwith as the lower court had “erroneously” dismissed his application without considering a dictum laid by the Supreme Court as early as in 1993.

The apex court had categorically held that a father being a natural guardian of a child could not be charged under Section 363.

The judicial magistrate failed to take note of the judgment in the context of the relationship between the petitioner and the child alleged to have been kidnapped, he said.

In the private complaint lodged against the revision petitioner, his wife had stated that she got married on May 6, 2002 and gave birth to three children.

A misunderstanding arose between the couple in 2008 and she left her matrimonial home and began living with the children at her parents’ house.

On September 17, 2008, her husband took away their eldest son from school.

A complaint lodged in this regard with the local police did not evoke a response and hence she preferred a private complaint before a lower court seeking a direction to the police to register a case.

The revision petitioner claimed that he had not committed any illegality in taking his child along with him from school. He also claimed to have obtained a favourable order from the High Court Bench under the Guardianship and Wards Act on August 25, 2011.