Therefore what we have proved in this case is that the child was in the keeping of his mother who was a lawful guardian within the meaning of Section 361, Indian Penal Code and that the child was taken or enticed away out of her keeping. Section 361 says that "whoever takes or entices...is said to kidnap" and there can be no doubt that the word "whoever" will include P.W. l's husband. But this is not quite sufficient. The exception to Section 361 states as follows:
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.
7. Now, if a person who in good faith believes himself to be entitled to the lawful custody of a child cannot commit an offence under Section 361, Indian Penal Code, it seems to follow a fortiori that a person who is in fact the father of the child, and therefore in law entitled to the lawful custody of the child cannot come within the scope of Section 361, Indian Penal Code. In this case it can be said on behalf of the first accused that he did not merely in good faith believe himself to be entitled to the lawful custody of his child, but that he was beyond the possibility of any challenge entitled to the lawful custody of the child, and that therefore his act in taking the child from the keeping of his mother could not amount to an offence of kidnapping from lawful guardianship.
I am fortified in this opinion by the reasoning of Rankin, C.J., in the case in Saharali Mohammad v. Kamizuddin Mahammad (1930) I.L.R. 58 Cal. 897. The learned Chief Justice quoted with approval the decision in Emperor v. Sital Prasad (1919) I.L.R. 42 All. 146 as authority for the proposition that:
The explanation to Section 361 cannot be used* to mean that, as against a person, who, in fact, is the civil guardian of the minor, mere de facto guardianship can be set up so as to convict the real civil guardian of an offence under Section 361.Madras High Court
In Re: Kanneganti Chowdarayya And ... vs Unknown on 22 February, 1938
Equivalent citations: (1938) 1 MLJ 670
