Section 361 IPC: Kidnapping from lawful guardianship

Indian Penal Code, 1860

Section 361 IPC at a Glance

Section 361 IPC deals with kidnapping from lawful guardianship. From 1 July 2024 it is replaced by Section 137(1)(b) BNS.

Punishment

None. Section 361 IPC is a definition and does not prescribe a sentence of imprisonment. Kidnapping from lawful guardianship is punished under Section 363 IPC with imprisonment of either description extending up to seven years.

BNS Equivalent

Section 137(1)(b) →

Section 361 IPC Bare Act Text

361. Kidnapping from lawful guardianship

Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, 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 minor or person from lawful guardianship.

Explanation

The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person.

Exception.—This section 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.

Source: Section 361, Indian Penal Code, 1860

State amendments — these apply only in the States named below, not to the rest of India

Union Territory of Manipur: In its application to the Union Territory of Manipur, in section 361, for the word "eighteen" substitute the word "fifteen". [Vide Act No. 30 of 1950].

Section 361 IPC in Simple Words

Section 361 of the Indian Penal Code (IPC) defines kidnapping from lawful guardianship. A person commits this act when taking or enticing any male under sixteen years of age, any female under eighteen years of age, or any person of unsound mind, out of the keeping of their lawful guardian without the consent of that guardian.

The statutory Explanation extends lawful guardian to include any person lawfully entrusted with the care or custody of the young person. An Exception protects any person who in good faith believes himself to be the father of an illegitimate child or entitled to lawful custody, unless the act is committed for an immoral or unlawful purpose.

Section 361 IPC is a definition and prescribes no sentence of its own; punishment is provided under Section 363 IPC.

Ingredients of Section 361 IPC

  • Taking or enticing a male under sixteen years of age, a female under eighteen years of age, or a person of unsound mind
  • The person was in the keeping of a lawful guardian, including any person lawfully entrusted with care or custody
  • The taking or enticing was done out of such keeping without the consent of the lawful guardian

Punishment Under Section 361 IPC

Imprisonment

None. Section 361 IPC is a definition and does not prescribe a sentence of imprisonment. Kidnapping from lawful guardianship is punished under Section 363 IPC with imprisonment of either description extending up to seven years.

Fine

None under Section 361 IPC. Liability to fine is prescribed under Section 363 IPC and following penal sections.

Section 361 IPC defines kidnapping from lawful guardianship without prescribing a penalty of its own. Punishment for the offence is prescribed under Section 363 IPC.

Example of Section 361 IPC

In 2017, in Shimla, fourteen-year-old Kunal lived in the keeping of his maternal uncle Devendra, who had been lawfully entrusted with Kunal's care and custody while Kunal's parents worked abroad. A local shopkeeper named Pradeep enticed Kunal with promises of a job in Chandigarh and took the boy away by train without Devendra's consent. Pradeep was neither Kunal's father nor someone believing in good faith that he was entitled to Kunal's lawful custody. Because Pradeep enticed a male minor under sixteen years of age out of his lawful guardian's keeping without consent, Pradeep kidnapped Kunal from lawful guardianship under Section 361 IPC.

When Section 361 IPC Does Not Apply

  • The person taken or enticed away is of sound mind and is either a male aged sixteen years or older or a female aged eighteen years or older.
  • The lawful guardian, or the person lawfully entrusted with the care or custody of the minor or person of unsound mind, gives consent to the removal.
  • The person taking the child acts in a good-faith belief that he is the father of an illegitimate child or is entitled to the child's lawful custody, and does not act for any immoral or unlawful purpose.
  • The minor leaves the guardian's keeping entirely on their own without any taking or enticement by the accused.

Section 361 IPC in the BNS

Section 361 IPC is now covered under Section 137(1)(b) BNS.

Section 361 IPC is codified as clause b of sub-section 1 of Section 137 BNS. Under the IPC, the provision applied to a male under sixteen years of age or a female under eighteen years of age. Under Section 137(1)(b) BNS, this phrasing is replaced by any child. Section 2(3) BNS defines a child as a person below eighteen years of age, so a boy aged sixteen or seventeen is now covered. Within clause b, the statutory wording reads this clause in place of this section, and the consolidated provision sits under the heading Kidnapping in Section 137(1)(b) BNS.

View detailed comparison (IPC 361 vs BNS 137(1)(b)) →

FAQs on Section 361 IPC

What does Section 361 IPC define?▼

Section 361 IPC defines kidnapping from lawful guardianship as taking or enticing a male under sixteen, a female under eighteen, or a person of unsound mind, out of the keeping of a lawful guardian without consent.

Does Section 361 IPC prescribe any punishment?▼

No; Section 361 IPC is purely a definition and prescribes no sentence. Punishment for kidnapping is provided under Section 363 IPC.

Who is considered a lawful guardian under Section 361 IPC?▼

Under the Explanation, a lawful guardian includes any person lawfully entrusted with the care or custody of the young person or person of unsound mind.

Is the consent of the young person relevant under Section 361 IPC?▼

No; the consent of the young person is immaterial because the section protects the lawful guardian's keeping, and only the guardian's consent is relevant.

What is the Exception to Section 361 IPC?▼

The section does not apply to a person who in good faith believes himself to be the father of an illegitimate child or entitled to custody, unless the act is for an immoral or unlawful purpose.

Is Section 361 IPC bailable and cognizable?▼

Section 361 IPC is a definition and has no entry in the First Schedule to the CrPC. Bail and cognizance are governed by the charging section, such as Section 363 IPC.

Can an offence defined in Section 361 IPC be compounded?▼

Section 361 IPC does not create an independent offence and is not listed in Section 320 CrPC.

Which provision in the Bharatiya Nyaya Sanhita corresponds to Section 361 IPC?▼

In Section 137(1)(b) BNS.

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Disclaimer: This is for informational purposes only. Always consult a qualified advocate for legal advice.

Sources: Bare Act Text, Indian Penal Code, 1860 · Last updated: 16 Oct 2026 ·