- 19-Sep-2025
- Elder & Estate Planning law
Parental kidnapping, also known as parental child abduction, occurs when one parent unlawfully takes or withholds a child from the other parent without legal consent or court approval. In India, this is considered a serious violation of parental rights, and there are legal frameworks to deal with such cases. Parental kidnapping can disrupt a child’s emotional stability and well-being, and it is treated as a criminal act under the Indian Penal Code (IPC), as well as an issue of family law under child custody arrangements.
Parental kidnapping is treated as a criminal offense under Section 363 of the Indian Penal Code (IPC), which deals with kidnapping. The section specifically criminalizes the unlawful detention or removal of a minor child by a parent, even if it is done without malicious intent, unless the other parent’s rights have been legally terminated. The penalty for kidnapping under Section 363 is imprisonment, which can range from 7 years to life depending on the circumstances.
The Guardian and Wards Act, 1890, provides a legal process for a parent to apply for guardianship and custody of a minor. If a parent takes the child away without a court order, they are considered to be in violation of the legal custody rights of the other parent. A parent who believes their child has been wrongfully taken can file a petition in court, asking for the child’s return.
Under the Hindu Minority and Guardianship Act, a father is generally considered the natural guardian of a Hindu male minor, while the mother is the natural guardian of a Hindu female minor, but both have equal rights over their child. If one parent unlawfully removes the child, they are violating the custodial rights of the other parent, and this may lead to serious legal consequences.
In cases where parental kidnapping involves an international element, such as one parent abducting the child to another country, the Hague Convention on International Child Abduction may come into play, and the parent seeking custody can apply for the child’s return. India is a signatory to the Hague Convention, and it provides legal mechanisms to prevent international parental child abduction.
The parent who believes their child has been wrongfully abducted can file a habeas corpus petition in a family court or high court. This legal action demands the immediate production of the child. The court can issue a writ of habeas corpus to ensure that the child is returned to the rightful custodian.
In cases of parental kidnapping, Indian courts often issue interim custody orders to ensure that the child is safely returned to the non-kidnapping parent. The court can also prevent the abductor parent from removing the child from its jurisdiction or from making any unauthorized relocations.
If a parent is found to have violated a court order or unlawfully removed the child, they may be held in contempt of court. This can result in fines or imprisonment and a revised custody order in favor of the non-abducting parent.
Indian courts prioritize the best interests of the child in custody disputes, and in cases of parental kidnapping, the court will evaluate the child’s emotional, physical, and psychological well-being. The child’s preferences may also be considered depending on their age and maturity level.
In addition to the family law consequences, the parent who kidnaps the child can face criminal charges under the Indian Penal Code, which can lead to imprisonment and other criminal penalties. If the child is removed from India, the non-abducting parent can approach the Central Authority under the Hague Convention for the child’s return.
Parental kidnapping can cause significant emotional trauma to the child, as it disrupts their sense of security, stability, and attachment. It can lead to feelings of abandonment or anxiety, especially if the child is forced to leave their primary caregiver or familiar surroundings.
Such an act can also damage the relationship between the child and both parents, especially if the child is caught in a legal or emotional conflict between the two. Courts generally ensure that the child has access to both parents, even in cases of abduction, as long as it is in the child’s best interests.
Suppose a mother, who has primary custody of her child, moves to a different city and refuses to let the father visit or communicate with the child. The father, concerned about his parental rights and the emotional well-being of his child, files a habeas corpus petition in the family court.
The father can file the petition in the family court or high court requesting the return of the child and immediate visitation rights.
The court will assess the child’s emotional and psychological needs and determine whether the mother’s actions were in violation of the custody agreement.
The court may issue an interim custody order to the father and direct the mother to return the child. If the mother refuses, she could face criminal charges under Section 363 of IPC.
The court may conduct further hearings to resolve the custody dispute and ensure that the child’s best interests are upheld.
Answer By Law4u Team
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