Dr. B. Priyanka v. State of Telangana: a natural guardian cannot kidnap her own child

The facts in brief

When a marriage breaks down and a parent leaves with the child, the aggrieved parent sometimes reaches first for the criminal law — filing a complaint that the child has been "kidnapped." The instinct is understandable but, as a matter of law, usually misconceived. The offence of kidnapping from lawful guardianship is directed at strangers and abductors, not at parents who are themselves the child's natural guardians.

Following a breakdown in the parental relationship, Dr. B. Priyanka took the minor child with her. The other parent set the criminal process in motion, leading to proceedings against her for the offence under Section 137(2) of the Bharatiya Nyaya Sanhita, 2023. She approached the Telangana High Court by an interlocutory application seeking a stay of those proceedings, contending that as the child's natural guardian she could not in law "kidnap" her own child, and that the criminal complaint was a misuse of the penal provision to pursue what was in substance a custody dispute.

Justice Juvvadi Sridevi heard the application and, on 8 January 2025, accepted the mother's contention. The Court held that the ingredients of kidnapping under Section 137(2) were not made out because the child remained within lawful guardianship throughout, and that the dispute belonged before the family or guardianship forum.

The continuity from Section 361 IPC to Section 137 BNS

The case is a study in how courts carry forward settled penal jurisprudence into the new code. Section 137 of the BNS replaces Section 361 of the Indian Penal Code, and on the kidnapping-from-lawful-guardianship point it is, in substance, identical. The element the prosecution must establish is that the accused took or enticed a minor out of the keeping of the lawful guardian without that guardian's consent.

That phrasing carries decades of judicial gloss. The pivotal word is "keeping." A child is in the keeping of its lawful guardian; the offence consists in removing the child from that keeping. The Supreme Court's decision in Chandrakala Menon v. Vipin Menon is the anchor of the line that holds a natural-guardian parent cannot satisfy this element, because the parent is herself a lawful guardian and the child remains in lawful keeping when taken into her custody.

The Telangana High Court applied that reasoning to the BNS. The IPC Section 361 jurisprudence survives verbatim into Section 137, because the element it construes survives verbatim. There is no gap, no fresh question — only the continuity of an established principle into a renumbered offence.

What the Court held

The Single Judge reaffirmed that where a parent who is a lawful or natural guardian takes the minor child away from the custody of the other parent, the act does not constitute the offence of kidnapping and does not warrant registration of an FIR under Section 137(2) BNS. Section 137 is directed at taking a minor out of the keeping of the lawful guardian without consent; but a natural-guardian parent is herself a lawful guardian, so taking the child into her own keeping merely transfers the child from one lawful guardianship to another. It does not remove the child from lawful guardianship at all.

Considering the mother's interlocutory application for a stay of proceedings, the Court held — as the contemporaneous reporting records its reasoning — that a parent who is a lawful guardian taking the child from the custody of the other parent would not amount to kidnapping and does not call for the registration of an FIR under Section 137(2) of the Bharatiya Nyaya Sanhita. The mother taking the minor along with her amounted, in the Court's view, to the child being taken into the lawful guardianship of the mother, negating the actus reus of kidnapping.

Custody disputes belong before the family court

The Court was equally clear about where such disputes should be resolved. Custody disputes between parents are family-law matters to be decided under the Guardians and Wards Act, 1890, before the appropriate civil or family forum — not by invoking the criminal kidnapping machinery.

This is the anti-weaponisation strand of the judgment. A parent who genuinely fears for a child, or who has a superior claim to custody, has a remedy: a guardianship petition, an application for interim custody, a habeas corpus petition in appropriate cases. What that parent does not have is a kidnapping case against the other natural guardian. To allow the penal provision to be turned into a tactical weapon in a custody battle would distort both the criminal law and family law, and would expose a parent to arrest and prosecution for doing nothing more than caring for her own child.

Why this matters

As FIRs under the new penal code proliferate in matrimonial disputes, this ruling is a clean, citable early-BNS authority that keeps inter-parental custody fights out of the criminal-kidnapping track. It is the kind of decision that a court hearing a quashing petition can rely on directly: the natural-guardian carve-out under IPC Section 361 survives into BNS Section 137, and an FIR against a custodial natural-guardian parent is liable to be quashed.

The decision also models the broader interpretive move that the transition to the BNS, BNSS and BSA requires. Where an offence is re-enacted in substance, the jurisprudence built around its predecessor continues to govern. Litigants and courts need not relitigate settled questions merely because the section number has changed.

The wider trajectory

The ruling will be cited across High Courts confirming that the natural-guardian principle carries forward into the Sanhita, and it feeds the developing 2024–26 jurisprudence policing the misuse of the new penal code in family conflicts. It sits naturally alongside the corpus's other early-BNS quashing decisions, which together are building a procedural discipline around the new codes — insisting that criminal process be reserved for genuine criminality and not deployed as leverage in disputes that the civil and family courts exist to resolve.

For a custodial parent facing a kidnapping FIR, the message is direct: a natural guardian cannot kidnap her own child, and the proper forum for the other parent's grievance is the family court.

Related on Valkya

• Shreya Singhal v. Union of India: striking down Section 66A
• Mohammed Arif Ali v. Afsarunnisa: a Muslim wife's right to khula is absolute
• Joseph Shine v. Union of India: decriminalising adultery

Sources

1. LiveLaw — "One Parent Who Is Lawful Guardian If Takes The Child From Custody Of Other Parent, Wouldn't Amount To Kidnapping: Telangana HC Reaffirms": https://www.livelaw.in/high-court/telangana-high-court/telangana-high-court-rules-child-custody-order-violation-not-kidnapping-280648
2. Verdictum — "Mother Taking Custody Of Child From Father Doesn't Amount To Kidnapping: Telangana HC": https://www.verdictum.in/court-updates/high-courts/telangana-dr-b-priyanka-vs-the-state-of-telangana-natural-parent-guardian-taking-custody-of-child-from-other-not-kidnapping-1564609
3. LiveLaw — Telangana High Court Annual Digest 2025: https://www.livelaw.in/amp/high-court/telangana-high-court/telangana-high-court-annual-digest-2025-516948
4. Supreme Court Observer — coverage of guardianship and custody jurisprudence: https://www.scobserver.in/