Report No. 146
4.5. Removal from custody.-
It may also not be quite appropriate to go to the extent of punishing any mode or device by which a child is removed from the lawful custody of the parent. Such a provision is bound to raise questions of some difficulty-for example, the question as to in what circumstances one parent may remove a child from the custody of the co-parent (when there is a discord between the two parents) and similar other issues.
Courts have already been confronted with such controversies while dealing with cases under section 361 of the Indian Penal Code. Under that section, taking or enticing a minor (under 16 years if a male, or under 18 years if a female) or any person of unsound mind, out of the keeping of the lawful guardian without the guardian's consent, commits the offence of kidnapping from lawful guardianship.
There is an exception in regard to the act of any person who, inter alia, 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. These complications will be avoided under the section as formulated above. On principles also, we are concerned here, not so much with the rights of the guardian or with personal liberty, as with the broader principle that a child ought not to be treated as a chattel.
We recommend accordingly.
K.N. Singh, Chairman.
S. Ranganathan, Member.
D.N. Sandanshiv, Member.
Sardar Ali Khan, Member (Part-time).
P.M. Bakshi, Member (Part-time).
M. Marcus, Member (Part-time).
Ch. Prabhakara Rao, (Member-secretary).
Dated: 23rd February, 1993.