Kidnapping is the offence of taking or enticing a person away from India or from the lawful guardianship of another. Under Indian law, kidnapping is defined in Sections 359-361 of the Indian Penal Code, 1860 (now Sections 137-138 of the Bharatiya Nyaya Sanhita, 2023) and is of two distinct types: kidnapping from India and kidnapping from lawful guardianship.
Legal definition
Section 359 IPC (Section 137 BNS) recognises two types of kidnapping:
Kidnapping from India — Section 360 IPC (Section 137(1)(a) BNS):
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.
Kidnapping from lawful guardianship — Section 361 IPC (Section 137(1)(b) BNS):
Whoever takes or entices any minor or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such person from lawful guardianship.
Age threshold: Under the IPC, the age threshold differed by gender — males under 16 years and females under 18 years were considered minors for this purpose. The BNS has removed this gender distinction and now uses the term "any child," defined as any person below the age of eighteen years, regardless of gender. This is a significant reform under Section 137 BNS.
Key elements of kidnapping from lawful guardianship:
- The victim must be a minor (under 18 years under BNS) or a person of unsound mind
- The victim must be taken or enticed — "taking" involves physical removal, while "enticing" involves inducement or persuasion
- The taking or enticing must be from the keeping of a lawful guardian
- The guardian's consent must be absent
Punishment: Section 363 IPC (Section 139 BNS) prescribes imprisonment of either description for a term which may extend to seven years, and also fine, for kidnapping.
How courts have interpreted this term
S. Varadarajan v. State of Madras [AIR 1965 SC 942]
The Supreme Court drew a critical distinction between "taking" and a minor going of her own free will. The Court held that where a minor leaves the custody of her guardian voluntarily and joins the accused, there is no "taking" within the meaning of Section 361 IPC. The word "takes" implies that the accused must be the active agent — if the minor independently decides to leave and approaches the accused, the offence of kidnapping is not made out.
State of Haryana v. Raja Ram [(1973) 1 SCC 544]
The Court clarified that the consent of the minor is wholly immaterial in kidnapping cases — what matters is the consent of the lawful guardian. Even if a 17-year-old willingly accompanies the accused, the offence is complete if the guardian did not consent. However, this must be read with the Varadarajan principle: the distinction is between the accused actively taking/enticing the minor versus the minor independently choosing to leave.
Thakorlal D. Vadgama v. State of Gujarat [AIR 1973 SC 2313]
The Supreme Court held that "lawful guardian" includes any person lawfully entrusted with the care and custody of the minor, not just a guardian appointed under guardianship law. A teacher, schoolmaster, or relative who has temporary custody qualifies as a lawful guardian for the purpose of kidnapping.
Why this matters
Kidnapping is among the most serious offences against personal liberty under Indian criminal law. It protects the autonomy and safety of minors and persons of unsound mind, as well as the rights of their lawful guardians. The offence serves as the foundation for more aggravated crimes — kidnapping for ransom (Section 364A IPC / Section 140 BNS), kidnapping for murder (Section 364 IPC), and kidnapping to compel marriage (Section 366 IPC / Section 141 BNS) all build upon the basic kidnapping offence.
For practitioners, the key distinction between kidnapping and abduction is crucial. Kidnapping can only be committed against a minor or person of unsound mind, while abduction applies to any person regardless of age. Kidnapping is a completed offence once the minor is taken from the guardian's custody, whereas abduction requires the use of force or deceit. Kidnapping from lawful guardianship is a continuing offence — every moment the minor is away from the guardian's custody constitutes a fresh offence.
The BNS reform removing the gender-based age distinction is practically significant. Under the old IPC, a 16-year-old boy could not be the victim of kidnapping from lawful guardianship, but a 16-year-old girl could. The BNS treats all children under 18 equally, reflecting modern child protection standards.
Related terms
Related offence:
Related concepts:
Broader concepts:
Frequently asked questions
What is the difference between kidnapping and abduction?
Kidnapping can only be committed against minors (under 18 under BNS) or persons of unsound mind, does not require force or deceit, and the consent of the victim is immaterial. Abduction can be committed against any person of any age, requires force or deceit, and the victim's will is directly overborne. Kidnapping is independently punishable, while abduction is generally punishable only when committed with a further criminal intent.
Does the consent of a minor matter in kidnapping?
No. The consent of a minor is legally immaterial under Section 361 IPC (Section 137 BNS). Only the consent of the lawful guardian matters. However, the Supreme Court in Varadarajan held that where a minor voluntarily leaves the guardian's custody and joins the accused without any active inducement, the element of "taking" is absent.
What age constitutes a minor for kidnapping under BNS?
Under the BNS, any person below 18 years of age is a minor for the purpose of kidnapping, regardless of gender. The IPC's distinction between males under 16 and females under 18 has been eliminated. This reform came into effect on 1 July 2024.
This entry is part of the Veritect Indian Legal Glossary, a comprehensive reference of Indian legal terminology grounded in statutory text and judicial interpretation.
Last updated: 2026-03-27. Veritect provides this content for informational purposes and does not constitute legal advice.