361: Take out of keeping of the lawful guardian

S. Varadarajan vs. State of Madras (09.09.2026 - SC) : MANU/SC/0081/1964

Case Notes:
The case dealt with the meaning of ‘Take out of keeping of the lawful guardian’ under Section 361 of the Indian Penal Code, 1860 - It was held that where a minor girl was allegedly taken away by the accused person from the protection of her father and where the girl had a capacity to know what she was doing and had voluntarily joined the accused, then in such case it could not be said that the accused had taken her away from the protection of her lawful guardian within the meaning of Section 361 of the Code

7. The question whether a minor can abandon the guardianship of his or her own guardian……

11. It must, however, be borne in mind that there is a distinction between “taking : and allowing a minor to accompany a person. The two expression are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of s. 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father’s protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.

12. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father’s protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian’s house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian’s house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to “taking”.

20. The other case is Rex v. James Jarvis (XX Cox’s Criminal Cases, 249). There Jelf J., has stated the law thus to the jury :

“Although there must be a taking, yet it is quite clear that an actual physical taking away of the girl is not necessary to render the prisoner liable to conviction; it is sufficient if he persuaded her to leave her home or go away with him by persuasion or blandishments. The question for you is whether the active part in the going away together was the act of the prisoner or of the girl; unless it was that of the prisoner, he is entitled to your verdict. And, even if you do not believe that he did what he was morally bound to do-namely, tell her to return home-that fact is not by itself sufficient to warrant a conviction : for if she was determined to leave her home, and showed prisoner that that was her determination, and insisted on leaving with him- or even if she was so forward as to write and suggest to the prisoner that he should go away with her, and he yielded to her suggestion, taking no active part in the matter, you must acquit him. If, however, prisoner’s conduct was such as to persuade the girl, by blandishments or otherwise, to leave her home either then or some future time, he ought to be found guilty of the offence of abduction.”
21. In this case there was no evidence of any solicitation by the accused at any time and the jury returned a verdict of ‘not guilty. Further, there was no suggestion that the girl was incapable of thinking for herself and making up her own mind.

22. The relevant provisions of the Penal Code are similar to the provisions of the Act of Parliament referred to in that case.

23. Relying upon both these decisions and two other decisions, the law in England is stated thus in Halsbury’s Laws of England, 3rd edition, Vol. 10. at p. 758 :

“The defendant may be convicted, although he took no part in the actual removal of the girl, if he previously solicited her to leave her father, and afterwards received and harboured her when she did so. If a girl leaves her father of her own accord, the defendant taking no active part in the matter and not persuading or advising her to leave, he cannot be convicted of this offence, even though he failed to advise her not to come, or to return, and afterwards harboured her.”