Bharatiya Nyaya Sanhita, 2023
Section 137
Kidnapping
(1) Kidnapping is of two kinds: kidnapping from India, and kidnapping from lawful guardianship—
(a) whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person from India;
(b) whoever takes or entices any child or any person of unsound mind, out of the keeping of the lawful guardian of such child or person of unsound mind, without the consent of such guardian, is said to kidnap such child or person from lawful guardianship. Explanation.—The words “lawful guardian” in this clause include any person lawfully entrusted with the care or custody of such child or other person. Exception.—This clause does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who 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.
(2) Whoever kidnaps any person from India or from lawful guardianship shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Why this exists
This provision continues, with modern language, the kidnapping offence first codified in the Indian Penal Code, 1860 (Sections 359–361), carried forward into the Bharatiya Nyaya Sanhita, 2023. Its purpose is to protect personal liberty (freedom to remain within one's country) and the rights of guardians over children and mentally unsound persons, recognising that such vulnerable individuals cannot meaningfully consent to being taken away.
How courts read it
Under the identical IPC provisions that preceded this section, courts clarified key points that continue to guide interpretation. In S. Varadarajan v. State of Madras (1965), the Supreme Court held that if a minor voluntarily leaves her guardian's house and joins the accused without any active inducement, it does not amount to 'taking'. In State of Haryana v. Raja Ram (1973), the Court held that persuasion or enticement, even without force, is enough to constitute 'taking or enticing' if it actively influences the minor's decision. Courts have also consistently held that a minor's own consent is legally irrelevant — only the guardian's consent matters.
Common misconceptions
- Myth: Kidnapping only happens if there is force, violence, or a struggle.
Fact: Courts have held that gentle persuasion, tricking, or enticing someone away can be enough — no physical force is required. - Myth: If the child or minor agrees to go along, it isn't kidnapping.
Fact: A minor's own consent doesn't count under this law; only the lawful guardian's consent matters. - Myth: Only strangers can be guilty of kidnapping a child.
Fact: Even a parent, relative, or the child's other guardian can be guilty if they take the child away from the person who currently has lawful custody, without that person's consent (subject to the good-faith exception for genuine custody beliefs).