Kidnapping from lawful guardianship.Whoever takes or entices any minor under 1sixteen years of age if a male, or under 2eighteen 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 other 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 such child, unless such act is committed for an immoral or unlawful purpose. STATE AMENDMENT
Manipur In section 361 for the words eighteen substitute the word fifteen. Vide Manipur Act 30 of 1950, sec. 3 w.e.f. 16-4-1950 , read with Act 81 of 1971, sec. 3 w.e.f. 25-1-1972 . COMMENTS Inducement not immediate cause The accused was charged for kidnapping a minor girl, below 15 years of age from the lawful guardianship of her father. It was established that the accused had an earlier stage solicited or induced minor girl to leave her fathers protection by conveying or indicating an encouraging suggestion, that he would give her shelter. Holding the accused liable for kidnapping under section 363, the Supreme Court said that the mere circumstances that his act was not the immediate cause of her leaving her parental home or guardians custody would constitute no valid defence and would not absolve him from the offence of kidnapping. The question truly falls for determination on the facts and circumstances of each case Thakorilal D Vadgama v. State of Gujarat, AIR 1973 SC 2314 1973 2 SCC 413. Lawful guardian Where facts indicate that a girl left her fathers protection, knowing and having capacity to know the full import of what she was doing and voluntarily joined the accused, the offence of kidnapping cannot be said to have been made out S. Varadrajan v. State of Madras, AIR 1965 SC 942. Use of word keeping Meaning of The use of the word keeping in the context connotes the idea of charge, protection, maintenance and control further the guardians charge and control appears to be compatible with the independence of action and movement in the minor, the guardians protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial it is only the guardians consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section Prakash v. State of Haryana, AIR 2004 SC 227.