⚖️ Jharkhand High Court Holds That a Natural Guardian Cannot Be Charged Under Section 363 IPC Merely for Taking His Own Child.
In matrimonial disputes, it is not uncommon for criminal complaints to be filed against a father after he takes custody of his own minor child from the mother. One of the most frequently invoked provisions in such situations is Section 363 of the Indian Penal Code (Kidnapping from Lawful Guardianship).
However, in a significant judgment, the Jharkhand High Court has clarified that a father, being the natural guardian of his minor child, cannot be prosecuted under Section 363 IPC merely because he takes his own child from the custody of the mother.
๐ Facts of the Case
The complainant-wife alleged that her husband called her to Dhanbad Railway Station, took away their four-year-old son, and later assaulted her when she visited his residence.
Based on these allegations, the Judicial Magistrate took cognizance of offences under Sections 323, 341 and 363 of the IPC and issued summons against the accused. The father challenged the entire criminal proceeding before the Jharkhand High Court by filing a petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
⚖️ What Did the High Court Say About Section 363 IPC?
The Court first examined the essential ingredients required to constitute an offence under Section 363 IPC, namely:
✔ The victim must be a minor.
✔ The minor must be in the keeping of a lawful guardian.
✔ The accused must take or entice the minor away from such lawful guardianship.
✔ Such removal must be without the consent of the lawful guardian.
The Court observed that the undisputed fact in the present case was that the accused was the father of the child and, therefore, the natural guardian.
Accordingly, the Court held that merely taking his own son does not satisfy the essential ingredients of the offence under Section 363 IPC.
⚖️ Important Observation on Section 323 IPC (Voluntarily Causing Hurt)
The complaint merely alleged that the complainant was assaulted.
The High Court held that a bare allegation of assault is not sufficient to constitute an offence under Section 323 IPC.
To attract Section 323, the complaint must disclose that the accused voluntarily caused bodily pain, disease, or infirmity.
Relying upon the Supreme Court's decision in Abhishek Saxena v. State of Uttar Pradesh (2023 INSC 1088), the Court observed that in the absence of any allegation regarding bodily pain, medical treatment, or injury, the essential ingredients of Section 323 IPC were not made out.
⚖️ Findings on Section 341 IPC (Wrongful Restraint)
The Court further held that Section 341 IPC requires a specific allegation that the accused voluntarily obstructed the complainant from proceeding in a direction in which she had a legal right to proceed.
Since no such allegation existed in the complaint, the ingredients of Section 341 IPC were also absent.
⚖️ Final Verdict
After examining the complaint and the applicable legal principles, the Jharkhand High Court concluded that even if all allegations in the complaint were accepted as true, none of the offences under Sections 323, 341 or 363 IPC were made out.
The Court held that allowing such criminal proceedings to continue would amount to an abuse of the process of law.
Accordingly, the High Court:
✅ Quashed the cognizance order dated 12 June 2024 passed by the Judicial Magistrate.
✅ Set aside the entire criminal proceeding arising out of Complaint Case No. 362 of 2024 against the petitioner.
⚖️ Why This Judgment Matters
This decision reiterates several important legal principles:
✔ A father, being the natural guardian, cannot automatically be prosecuted for kidnapping his own minor child.
✔ Criminal liability under Section 363 IPC arises only when all statutory ingredients are fulfilled.
✔ Vague and general allegations are insufficient to constitute offences under Sections 323 and 341 IPC.
✔ Criminal law cannot be used as a weapon in matrimonial disputes where the essential ingredients of the alleged offences are absent.
The judgment reinforces the principle that criminal prosecution must be based on legally sustainable allegations and not merely on emotional or matrimonial disputes.
๐ Case Details
Case Title: Khalid Eqbal (Wrongly Mentioned in Complaint as Md. Khalid Iqbal) v. State of Jharkhand & Another
Case No.: Cr.M.P. No. 2725 of 2025
Neutral Citation: 2026:JHHC:21458
Court: High Court of Jharkhand at Ranchi
Coram: Hon'ble Mr. Justice Anil Kumar Choudhary
Judgment Date: 21 July 2026
Uploaded On: 22 July 2026
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