- (1.) APPLICANT Khyali Ram is admittedly the father of the minor Kalua. Under Section 6 of the Hindu Minority and Guardianship Act, 1956, he is the natural guardian of the minor. It is true that the custody of a minor, who has not completed the age of five years shall ordinarily be with the mother as provided under the aforesaid Act. As Khyali Ram is the natural guardian even if he has removed the minor from the custody of the mother, there is no question of his committing an offence Under Section 363 of the Indian Penal Code.
(2.) SECTION 361 of the Code runs as follows : Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen 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 guardian.
(3.) IN order to constitute an offence Under Section 363 of the Indian Penal Code, there must be kidnapping of a person from lawful guardianship. Here Khyali Ram is himself the lawful guardian of the minor. It cannot, therefore, be said that he committed. an offence Under Section 363 of the Indian Penal Code by setting the custody of his own son from his wife.;