Supreme Court: Consensual Affair is not a defence against kidnapping charges

The case Anversinh @ Kiransinh Fatesinh Zala Vs. State of Gujarat is an appeal filed in the Supreme by a young man who was found guilty of kidnapping a 15-year-old in 1998 in Gujarat though the man said they were in love and the girl had voluntarily run away with him to get married but the Gujarat High Court held him guilty of kidnapping her by enticing her to flee with him.

A three judge bench consisting of Justice NV Ramana, Justice S. Abdul Nazeer and Justice Surya Kant disposed the appeal and held that,

A consensual love affair is not a defence against the criminal charge of kidnapping a minor girl under 18 years of age as law deems a minor incapable of giving lawful consent.

The court further stated that, Section 361 of the Indian Penal Code (kidnapping from lawful guardianship) bestows the ability to make crucial decisions regarding a minor’s physical safety upon his/her guardians. Therefore, a minor girl’s infatuation with her alleged kidnapper cannot by itself be allowed as a defence.

It was also observed that ‘enticement’ does not have to be direct or immediate in time and can also be through subtle actions like winning over the affection of a minor girl.
However, mere recovery of a missing minor from the custody of a stranger would not ipso facto establish the offence of kidnapping.

Considering all the mitigating factors, the court was of the opinion that there was no use of force and it was purely a crime of passion.
Therefore, the court reduced the quantum of his sentence to the period of imprisonment already undergone by the accused.

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