This article is written by Sidra Khan, a student of Amity University, Noida. The article discusses the provisions related to the lawful guardianship and difference between the legal guardian & lawful guardian.

Introduction

A person without being a legal guardian of any minor or any person of unsound mind takes or entices him without the permission of his lawful guardian is said to have committed an offence under Indian Penal Code. Any person who is lawfully interested in the protection and care of that minor or person of unsound mind is a lawful guardian. To keep any such person or minor in his custody is a crime. Lawful Guardianship is defined under Hindu Law and Muslim Law also. Which states that who is a legal guardian, and if any person takes or entices minors will be subjected to commit an offense under IPC.

Section 361 of the Indian Penal Code deals with the term lawful guardianship without being a legal guardian. Which clearly widened the scope of lawful guardianship. Any lawful guardian has a right to protect and care for any minor or any unsound mind person.   

Who is a legal guardian

A legal guardian is an adult who is appointed to take care of and make decisions on behalf of another person. A legal guardian takes over a person’s legal liability. The legal authority for personal and property rights of their employees is granted to them. Some of the decisions to be made regarding their wards by a legal guardian include:

• Decisions on medical matters;
• Financial decisions; political decisions;
• Agreements on contracts;
• Certain legal statements.

For disabled seniors, adults with a developmental disability and children the legal guardianship is usually used. The most common form of guardianship is legal guardians for minors. In addition to being appointed by a judge, the guardian serves as the primary caregiver for the minor and may individually be chosen by the parents of the minor. Guardian arrangements for minors are especially needed when the biological parents of a child are no longer in a position to take care of the child.

Guardianship is regulated by custody laws that control who may be a legal guardian. We also control the way the custody must be done. They also control the way the custody must be done. Some examples of what courts need to appoint a lawyer include:

• The personal connection between the ward and the guardian proposed;
• The ward’s particular needs and it is understanding of who its guardian should be;
• The capacity to consider and resolve the conditions of the ward of the proposed guardian;
• The period of custody is required.

Rights and duties of a legal guardian

A legal guardian typically has a right on behalf of his ward to take legal decisions. As described above, a large number of decisions can be made in the right to make legal decisions. Those include where the cabinet stays, where the minor should be sent to school, and medical treatment decisions, among other legal decisions.

The duty of the guardian is also immense, as the guardian both normally has legal and physical custody. As such, they must carry out duties similar to those for their child performed by a parent.

Some examples of these tasks include:

• Provide Food, clothes, and wardrobe shelter;
• Preserve the physical and emotional wellbeing of their ward;
• Security precautions of the ward.

Each guardian has a trustee responsibility to her ward. It ensures that they have a legislative obligation to carry out their operations fairly and responsibly. They will behave in good faith and judge well. The guardian, therefore, uses the same level of care and judgment as to his own with the estate. Furthermore, they need to separate their ward funds from their own personal accounts. If the ward suffers a loss directly from the violation of the fiduciary duties on the guardian, the guardian can be held legally liable for the loss of the ward.

Who is a lawful guardian

The term “lawful guardian” is preferred to the words “legal guardian.” In its reach, the former is far broader. Any person legally responsible for the care or custody of a minor or an unfit adult is a lawful guardian. A civil arrangement between a guardian and a ward may mean that a guardian is a lawful guardian. It was observed that it was not intended to limit protection given to parents and minors; it was intended to expand the protection by including a person lawfully entrusted with the care or custody of the child in the term ‘lawful guardian’.

The fact that a parent authorizes a servant or relative to hold a child in custody for a limited time can not decide the rights of his parent to be a guardian or his legal possession for criminal law purposes. Where the facts are consistent with the minor’s legal ownership by the parent, the male child should be assumed to be owned or retained by the parent even if the actual physical ownership is temporarily kept by a relative or other adult. A de facto guardianship under this provision is enough to ensure that the guardian is a legitimate guardian.

Lawful guardianship without being a legal guardian under IPC

Section 361 of the Indian Penal Code defines kidnapping offence from lawful guardianship. It says that whoever takes or entices any minor who is under the age of seventeen, if a male, and who is under the age of eighteen, if a female, or any person of unsound mind, is said to kidnap any minor or person of unsound mind from lawful guardianship, without the consent of that lawful guardian.

The explanatory note in this section ‘lawful guardian’ means any person lawfully responsible for the care or custody of the minor or another person. However, an exemption is also attached to the clause, which states that it does not apply to any person who, in good faith, believes he is the father of an unlawful child or who feels that he has a right to legal custody of the illegitimate child. But the act on its part should not be performed for either an unethical or an unconstitutional reason in any of the above cases.

The offender may take an individual or attract him. Whether the person is a male, the victim must be under the age of sixteen years and under the age of 18 if the person is a female, or if the person is unsound at any age. The taking or enticement should be removed from the lawful guardian of the victim. The victim’s lawfully binding guardian would not have consented to take or entice the victim. The clarification in that section uses the term lawful guardian with an expansive meaning, and not with a detailed description, stating that the phrase encompasses someone lawfully entrusted with the care or treatment of such a minor or person of unsound mind. 

Any person who believes, in good faith, that he/she is the father of an illegitimate child or who believes he or she is entitled in good faith to the legal custody of such a child, may not be held guilty of this crime, even if his or her conduct falls under this section’s own terms, except when proved to be committed either in respect of a crime.

Meaning of taking or enticing

There should be evidence of taking or enticing that must be visible. For taking means to take. This can not be successful or positive by intimidation. To take the means to go, to escort or to take charge and to induce the victim to go. The offender must take an active part in the victim’s exit. The offender may not have to take the victim itself; his or her earlier conduct to induce or solicit the victim may also include a situation where the previous act is linked to the final outcome of the victim’s interaction with the offender. To obtain the section it should be proved that there is ample coercion by the accused person who generates the minor’s willingness to be released from his lawful guardian. Nothing more, like trespass, or anything of that nature, needs to be proven, other than that physical act.

Enticing does not need to be limited to one single type of allurement. Sweets or money can not always be distributed. It might also be a sexual bid. This is a crime for which the victim himself or herself is compelled to go to the offender. Force or fraud can not always be present when they are taken or instigated. Taking is somewhat different. For the former, the mind of the minor has no effect; the minor may or may not be a willing party. Yet enticing requires an idea of motivation by inspiring hope or wish in the other that the victim does something he or she would not have done without the enticement.

For instance, unless the minor leaves his parental home entirely uninfluenced by any threat, bid, or inducement arising from the culprit, then the latter can not be deemed to have committed the offence as specified in section 361. But if the guilty party has laid a basis by induction, allurement, or intimidation, etc., and if that can be assumed to have affected or weighed the minor with her in leaving the custody of her guardian or in holding and going to the guilty party, then prima facie it would be hard for him to plead innocence on the ground that the minor had come to him willingly.

Meaning of keeping

The word ‘keeping’ in this section means the minor or the person of unsound mind is under the lawful guardian’s supervision or protection. The latter has an overall advantage over the former. The keeping of the lawful guardian continues even if the minor or other person has temporarily moved out of the home. Keeping the lawful guardian does not depend on how far the offender has taken the victim to. The offender would be found to have committed this crime if the minor was taken away by the offender only for a shorter time (21-33 yards). Unless there were other necessary elements for the crime, the offence would be taken out of the lawful custody of the guardian. Similarly, even though the victim was held for a short or long time and was then taken back she would be considered to be under her lawful guardian’s custody.

The term ‘keeping’ was actively preferred to the term ‘possession’ which is linked to inanimate objects. Keeping it consistent with action and movement freedom of the entity held. This does not mean apprehension or detention but rather maintenance, security and control, which does not manifest itself in constant practice, but as required.

The relationship between the minor and the guardian is not broken as long as the minor may take advantage of it and position itself within the scope of its activity. The use of the word “keeping” in section 361 suggests that the section is intended to protect guardians’ sacred rights as regards their minor wards. 

The definition gives the term ‘lawful guardian’ an expanded sense, as it encompasses any person lawfully entrusted with the care or custody of such a minor or another adult. The word ‘entrusted’ means giving something, handing it over, or entrusting it to another person. The person who entrusts a faith in the other reposes. As for section 361 of the Code, none of this may be in writing.

There must be a person who reposes the trust, another in whom the trust resides, and a minor or an unsound minded person who is the target of the trust.

Every person who believes in good faith that he is the father of an illegitimate child or who believes in good faith that he is entitled to the lawful custody of such a child unless that act is done for an unethical or unlawful reason is protected by the Section and can not be found guilty of this offence.

Lawful guardianship under Hindu law

The father is typically the legal guardian in Hindu Law, and a mother who takes a child somewhere will be expected to act with the child’s father’s consent. Therefore, a mother was held to have kidnapped her child from her home in order to get the child married without the permission of the father of the child.

A Hindu minor girl’s parents have full right to her custody and no other person has any right. Similarly, after marriage, the husband becomes their lawful guardian. So if a Hindu married minor girl’s father takes her away without her husband’s permission, he may be found guilty of kidnapping. Yet where a Hindu married minor girl had lived five or six years with her parents, she could not be considered to be in her husband’s custody. The mother is the lawful guardian of an illegitimate Hindu minor daughter, and her father, according to a well-known tradition, when she’s legitimate.

In the case of  Ashok Kumar Seth v. State of Orissa, 2002 The accused husband was convicted of forcibly entering his father in law’s house and taking the accused’s minor child from the care of the wife of the accused. The High Court of Orissa ruled that a father is the natural guardian of an infant under Hindu law, and since the court order discharges him from custody, no prima facie case was made of the abduction of his child. Therefore, cognition of him was abolished under Section 363, but the house-trespass was retained under Section 452.

Lawful guardianship under Muslim law

The Mohammedan Law states that if a father takes a son under age 7 or a daughter who has not yet reached puberty if a Sunni, or if Shia or an illegitimate son from a mother’s custody, is guilty of kidnapping because the Law considers the mother as a guardian, then that parent may be deprived of the custody. Her brother is her lawful guardian, while the parents of a little Mohammedan girl are dead. The Sunni law notes that a young girl’s mother is their guardian before her puberty is typically fifteen years old.

In the case of, Ismail Aboobaker v. State Of Kerala, 1967 the Court held that where the father of a two-and-a-half-year-old Sunni minor girl takes the child away without the child’s mother’s consent, he does not commit the kidnapping crime because he does not take the child out of the care of the lawful guardian, which a mother is not, even though she is entitled to the child’s custody up to her puberty.

Conclusion

There are various laws on Lawful Guardianship in India for the better protection and care of a minor person and of an unsound mind person. Indian Penal Code under Section 361 clearly widened up the scope of Lawful Guardianship without being a Legal Guardian. The main aim of this section is to protect the interests of children and persons of unsound mind from other people’s inappropriate and unwanted actions against them, as well as to protect the rights of parents and other guardians who have lawful care or custody of such children or persons. The section initially mentioned the age of a minor male child as fourteen years and that of a minor female child as seventeen years. But the Indian Penal Code and the Code of Criminal Procedure (Amendment) Act, 1949, raised the same to sixteen and eighteen years, respectively, and the amendment came into force with effect from July 15, 1949.

References

• https://www.legalmatch.com/law-library/article/what-is-a-legal-guardian.html
• https://lawctopus.com/clatalogue/all-you-need-to-know-about-kidnapping-and-abduction/
• https://www.jstor.org/stable/43949856?seq=1
• https://www.latestlaws.com/bare-acts/central-acts-rules/ipc-section-361-kidnapping-from-lawful-guardianship/

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