Biological father cannot be charged with child kidnapping without legal prohibition: Bombay HC

The Nagpur bench of the Bombay High Court has ruled that a 35-year-old man cannot be charged with child abduction in the absence of a legal prohibition, thus dismissing an FIR filed against the biological father.

A division bench of 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 cannot be booked for taking away his own minor child from the custody of the mother. The order was made available on Thursday.

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, the court said. 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 (first information report) registered against the man, on a complaint by his estranged wife, with the Amravati police for allegedly kidnapping their three-year-old son on March 29, 2023, noting that continuation of such prosecution would amount to abuse of process of the court.