14 Feb 2010

No kidnapping when girl goes on her own choice: High Court

In a recent case the Delhi High Court has declared that in order to constitute an offence of kidnapping punishable under Section 363 of the Indian Penal Code, "there has to be taking or enticing of a minor from the lawful guardianship of her parents/guardian. If the minor, of her own, abandons the guardianship of her parents and joins a boy, without any role having been played by the boy in her abandoning the guardianship of her parents and without her having been subjected to any kind of pressure, inducement, etc. and without any offer or promise from the accused, no offence punishable under Section 363 of IPC will be made out when the girl is aged more than 16 years and is mature enough to understand what she is doing."

The High Court was dealing with a case wherein the parents of a girl had complained of an offence under Section 363 against a person with whom their daughter had abandoned their house whereas the girl was present before the Court and stated "that no promise or inducement was extended to her by the boy and she of her own had abandoned the guardianship of her parents and had joined him, in order to marry him". The High Court noted the position to law to hold that since there was no inducement to leave the house and she had left it on her own, no offence of kidnapping could be made out.

The decision also notes the famous case of Supreme Court which was noted by the High Court as under;
3. In “Shyam & Another Vs. State of Maharashtra”, 1995 Criminal Law General 3974, the prosecutrix was a grown-up girl, though she had not touched 18 years of age. She claimed during trial that she was kidnapped under threat. The evidence produced during trial showed that she was seen going on the bicycle of the accused. The Hon’ble Supreme Court noted that it was not unknown to her with whom she was going and therefore, it was expected of her then to jump down from the bicycle or put up the struggle and in any case raise an alarm to protect herself. As no such steps were taken by her, the Hon’ble Supreme Court felt that she was a willing party to go with the appellants of her own and, therefore, there was no taking out of the guardianship. The appellants were acquitted of the charge under Section 366 of IPC.

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