S. Varadarajan vs State of Madras

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No.46 of 1963

Decision Date: 09 September 1964

Coram: J.R. Mudholkar, M. Hidayatullah

S. Varadarajan filed a petition against the State of Madras that was decided on 9 September 1964 by the Supreme Court of India. The judgment was written by Justice J. R. Mudholkar, who was joined by Justice K. Hidayatullah on the bench. The petitioner is identified as S. Varadarajan and the respondent as the State of Madras. The official citation of the decision appears as 1965 AIR 942 and 1965 SCR (1) 243, with a citator reference of D 1973 SC 2313 (10). The case involves the interpretation of section 361 of the Indian Penal Code, Act XLV of 1860, which defines the offence of taking a person “out of the keeping of the lawful guardian.”

The headnote of the judgment explains that when a minor girl who is alleged to have been taken away by an accused actually leaves her father’s protection of her own free will, fully understanding the consequences of her actions, the accused cannot be said to have taken her away from the keeping of her lawful guardian within the meaning of section 361. The Court held that additional conduct on the part of the accused is required for liability, such as an inducement offered by the accused or an active role by him in forming the girl’s intention, either immediately before she leaves her father’s protection or at an earlier time. The Court further observed that if the evidence does not show either an inducement or active participation, the accused is not guilty of the offence merely because the girl, after having left the house of her guardian, voluntarily joined the accused and the accused thereafter assisted her in avoiding a return to her guardian’s home by taking her from place to place. The Court’s discussion of these points is recorded in paragraphs 248B‑E, and relevant case law was examined in support of the reasoning.

The judgment proceeds under the heading “Criminal Appellate Jurisdiction” and concerns Criminal Appeal No. 46 of 1963. The appeal was granted special leave from the order dated 22 March 1963 of the Madras High Court in Criminal Appeal No. 114 of 1961. Counsel for the appellant included A. V. Viswanatha Sastry, K. Jayaram and R. Ganapathy Iyer, while counsel for the respondent comprised A. Ranganadham Chetty and A. V. Rangam. Justice Mudholkar delivered the judgment of the Court. The appeal challenged the decision of the High Court of Madras, which had affirmed the conviction of the appellant under section 363 of the Indian Penal Code and imposed a sentence of rigorous imprisonment for one year, a sentence that had originally been awarded by the Fifth Presidency Magistrate at Egmore, Madras.

The factual background set out in the judgment describes Savitri, identified as PW 4, as the third daughter of S. Natarajan, identified as PW 1, who held the position of Assistant Secretary to the Government of Madras in the Department of Industries and Co‑operation. At the material time, the family resided on 6th Street, Lake Area, Nungumbakkam, together with Mrs. Natarajan and two daughters, Rama (PW 2) and Savitri (PW 4). Rama, the elder daughter, was a student at Madras Medical College, whereas Savitri was in the second year of a B.Sc. programme at Ethiraj College. The Court notes that a few months before 30 September 1960, Savitri became friendly with the appellant Varadarajan, who was then residing in a house adjacent to that of S. Natarajan.

In this case, the appellant lived in a house adjoining that of S. Natarajan. The appellant and Savitri, who was the third daughter of S. Natarajan, regularly conversed with each other from their respective homes. On the morning of 30 September 1960, at about nine o’clock, Rama, Savitri’s elder sister, observed the two of them engaged in such conversation, an occurrence she had also witnessed on earlier occasions. Later that same day, Rama asked Savitri why she was speaking with the appellant. Savitri responded that she desired to marry him. The information concerning Savitri’s intention was conveyed by Rama to their father, S. Natarajan, when the family returned home at approximately eleven o’clock. Upon hearing this, Natarajan interrogated Savitri. Overcome with emotion, Savitri began to weep but was unable to utter any words. On that same day, Natarajan took Savitri to Kodambakkam and left her at the residence of a relative, identified as K. Natarajan (PW‑6), with the purpose of keeping her away from the appellant for a period of time. The following morning, on 1 October 1960, at about ten a.m., Savi­tri departed from K. Natarajan’s house and telephoned the appellant, requesting that he meet her at a specified road in the same locality. She then proceeded to the designated road, where the appellant had already arrived in his car. Savitri entered the vehicle, and together they traveled to the house of one P. T. Sami in Mylapore, intending to take him along to the Registrar’s office as a witness to their marriage. After collecting Sami, they went to the shop of Govindarajulu Naidu on Netaji Subhas Chandra Bose Road, where the appellant purchased two gundus and a tirumangalyam that Savitri had selected. He then directed Savitri to wear the jewellery bought at Naidu’s shop, which she did. Subsequently, the agreement to marry, apparently written at the Registrar’s office, was formally registered. The agreement was attested by Sami as well as by P. K. Mar, a co‑accused before the Presidency Magistrate who had been acquitted. Following the registration, the appellant and Savitri proceeded to the Ajanta Hotel, where they remained for a day. The next day the appellant bought a couple of sarees and blouses for Savitri, after which they travelled by train to Sattur. After staying in Sattur for a few days, they moved on to Sirukulam on 4 October, where they remained for ten to twelve days. Their journey continued to Coimbatore and thereafter to Tanjore, where police, investigating a kidnapping complaint lodged by S. Natarajan, located the pair. The police then escorted them back to Madras on 3 November. It is noteworthy that because Savitri did not return home after leaving on the morning of 1 October, K. Natarajan visited S. Natarajan’s house that evening to inquire about her return. Upon discovering that she was still absent, both men proceeded to the railway station and other locations in an effort to locate her, but these searches proved unsuccessful, prompting S. Natarajan to file a complaint at the Nungumbakkam Police Station, stating that his minor daughter could not be found. The police subsequently investigated and ultimately apprehended the appellant and Savitri at Tanjore.

In the evening after discovering that Savitri had not returned home, both K. Natarajan and S. Natarajan proceeded to the railway station and to several other locations in an effort to locate her. Their search proved unsuccessful, and consequently S. Natarajan reported the matter to the Nungumbakkam Police Station, stating in his complaint that Savitri, who was a minor on that date, could not be found. The police then launched an investigation that ultimately led to the apprehension of both the appellant and Savitri at Tanjore, as previously described. It is not contested that Savitri was born on 13 November 1942, making her a minor on 1 October, nor are the other factual circumstances previously set out in dispute. Two principal contentions were raised by the appellant. First, it was argued that Savitri had abandoned the guardianship of her father. Second, it was claimed that the appellant, in the conduct alleged against him, had not in fact removed Savitri from the care of her lawful guardian. The question of whether a minor can abandon the guardianship of a parent, and whether Savitri’s actions could be characterized as such an abandonment, is a complex legal issue. However, the Court found it unnecessary to resolve either of those questions because the central issue—whether the appellant “took” Savitri out of the keeping of her lawful guardian—had not been established.

The offence of kidnapping from lawful guardianship is defined in the first paragraph of section 361 of the Indian Penal Code as follows: “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.” Accordingly, the act of taking or enticing a minor away from the guardian’s protection constitutes an essential element of the offence. In the present case, the Court is not concerned with any allegation of enticement; the issue to be examined is whether the appellant’s conduct amounts to “taking” Savitri out of the lawful guardian’s keeping. The evidence shows that although Savitri was left by S. Natarajan at the residence of his relative K. Natarajan, she nevertheless remained under the lawful guardianship of S. Natarajan. No statement in Savitri’s deposition suggests that she left K. Natarajan’s house at the appellant’s request or as a result of any suggestion made by him. On the contrary, Savitri openly admits that on the morning of 1 October she telephoned the appellant, arranged to meet him at a specified location, and, upon finding his car waiting, entered it of her own volition. She further states that she did not direct the appellant regarding the destination; it was the appellant who drove the car to Guindy, Mylapore, and other places. Savitri also declared that she had decided to marry the appellant and that the desire for marriage originated from her own side. There is no indication that the appellant forced her to go to the Sub‑Registrar’s office or that he obtained a marriage registration by coercion or undue influence. Accordingly, the Court concludes that the appellant, by merely complying with Savitri’s wishes, cannot be said to have taken her out of the keeping of her lawful guardian.

On the morning of 1 October, Savitri placed a telephone call to the appellant, requesting that she meet him at a specified location, and she proceeded to that place of her own volition. Upon arrival, she observed the appellant waiting in his automobile and, without any coercion, entered the vehicle of her own accord. She testified unequivocally that she did not give the appellant any instructions regarding the destination, and that it was the appellant alone who subsequently drove the car to Guindy, then to Mylapore, and thereafter to other places.

Savitri further declared that she had made a personal decision to marry the appellant. There is no evidence in the record suggesting that the appellant escorted her to the Sub‑Registrar’s office and obtained a marriage registration by force, persuasion, or any form of undue influence. On the contrary, the testimony of Savitri leaves no doubt that the desire for marriage originated entirely from her own side. By simply complying with her expressed wish to marry, the appellant cannot, by any reasonable construction, be said to have taken her away from the lawful custody of her guardian. After the marriage agreement was officially registered, both Savitri and the appellant lived as husband and wife and travelled together to various locations.

None of Savitri’s evidence, which notes that she had reached the age of discretion and was on the threshold of attaining majority, indicates that the appellant compelled her to accompany him by threat, promise, or any other form of blandishment. Her continuous accompaniment of the appellant is fully consistent with her own expressed desire to be his wife, implicitly including a willingness to travel wherever he went. Consequently, the Court finds no material from which an inference could be drawn that the appellant illegally removed Savitri from her father’s custody. She accompanied him voluntarily, and the law imposes no obligation on the appellant to return her to her father’s home or to forbid her accompaniment. Savitri was not a child of tender years lacking capacity for independent judgment; she was nearing majority and possessed the ability to discern what was beneficial or detrimental for herself. Moreover, she was a senior college student who had lived most of her life in a modern urban environment, rendering her far more capable of independent thought and action than an uneducated rural girl. The learned judge of the High Court referred to the decision in In re : Abdul Sathar (1), observing that where evidence shows that, but for the accused’s consented act, a minor girl would not have left her husband’s house, that consent constitutes sufficient “taking” for the purpose of the relevant statutory provision.

The Court examined Section 363 and concurred with the earlier legal observation that the minor, identified as PW 4, would not have left her residence except for the appellant’s promise to marry her. The Court noted that, regardless of whether such a promise constituted blandishment, the conclusion was not supported by any direct or indirect evidence. The Court then referred to the earlier decision in Abdul Sathar, where Justice Srinivasa Aiyangar had held that the girl alleged to have been kidnapped was intensely anxious to leave her husband’s house and even threatened suicide if she remained there. He observed that when a girl has come to such a degree of hatred toward her husband and his household, and subsequently departs from the husband’s or guardian’s keeping, there must be clear and cogent evidence that she did not leave of her own accord and that her departure was caused in some manner by an act of the accused. Applying this principle, the learned Judge evaluated the evidence in the present case and concluded that some legal evidence existed upon which a court of fact could find against the accused. However, the Court found that this precedent offered little assistance because every essential step in the alleged removal was undertaken by Savitri herself: she telephoned the appellant, arranged the rendezvous, walked to the appointed place, found the appellant waiting in a car, entered the car of her own volition without any invitation, and permitted the appellant to transport her wherever he chose. Her sole intention appeared to be to become the appellant’s wife and remain with him. The Court also cited the case of R. v. Kumarasami, decided under Section 498 of the Indian Penal Code, in which it was held that if, while a wife was living with her husband, a man knowingly removed her in a manner that deprived the husband of control over her and with the intent required by the statute, such conduct amounted to “taking” the wife within the meaning of that section. The Court emphasized that a distinction must be drawn between “taking” and merely allowing a minor to accompany a person; the two expressions are not synonymous, although the Court does not wish to declare that they can never be regarded as equivalent for the purposes of Section 361 of the Indian Penal Code. In the present circumstances, the minor alleged to have been taken left her father’s protection with full knowledge of her actions and voluntarily joined the accused. Consequently, the Court held that the accused could not be said to have taken her away from the keeping of her lawful guardian unless additional factors were proven, such as an inducement offered by the accused or an active participation by him in forming the minor’s intention to leave her guardian’s house. It would suffice, in the Court’s view, for the prosecution to demonstrate that although the accused played no active role immediately before the minor’s departure, he had earlier solicited or persuaded her to do so. In the absence of such evidence, the Court concluded that it would be improper to infer the accused’s guilt merely because the minor, having left her guardian’s house, subsequently accompanied the accused.

In this case the Court observed that the minor possessed the capacity to comprehend fully the significance of her actions and that she voluntarily associated herself with the accused. The Court stated that under such circumstances the accused could not be said to have taken the minor away from the custody of her lawful guardian. The Court further explained that, for a charge of taking to be sustained, the prosecution must demonstrate either that the accused induced the minor by making some promise or offer, or that the accused actively participated in creating the minor’s intention to leave the guardian’s house. The Court added that it would be sufficient if the prosecution could show that, although the accused played no active role at the precise moment the minor left her father’s protection, he had previously solicited or persuaded her to do so. In the Court’s opinion, if evidence of such inducement or prior persuasion was absent, it would be improper to infer guilt merely because, after the minor had actually left her guardian’s residence, she joined the accused and the accused assisted her in preventing her return by taking her with him from place to place. The Court acknowledged that the accused’s conduct might be regarded as facilitating the girl’s intention, but stressed that such facilitation fell short of the inducement required to constitute a “taking” under the statute. Consequently, the Court concluded that the present facts did not meet the legal threshold for a conviction under the taking provision. The Court distinguished the present matter from the case considered by Srinivasa Aiyangar J., noting that the facts did not demonstrate that Savitri would have remained in K. Natarajan’s house without the appellant’s active assistance. The Court also referred to the decision in Kumarasami’s case, which the High Court had relied upon, observing that the earlier decision held that the character of a married woman as a temptress was irrelevant and that an accused who yielded to her solicitations was guilty under section 498(b) of the Penal Code. That decision had been approved in In re: Sundara Days Tevan. The Court explained that the rationale in those decisions was that depriving a husband of proper control over his wife for the purpose of illicit intercourse formed the core of the offense of taking a wife, and that such deprivation could be brought about simply through allurement and blandishment. Finally, the Court reminded that sections 497 and 498 of the Indian Penal Code were primarily intended to protect the husband’s rights, whereas section 361 and related provisions aimed to safeguard minors and persons of unsound mind themselves, rather than merely protecting the guardians’ rights.

The Court observed that sections 361 and the other related provisions of the Indian Penal Code were enacted principally for the protection of minors and persons of unsound mind themselves, rather than for safeguarding the rights of the guardians of such persons. In support of this observation, the Court referred to the decision in State v. Harbansing Kisansing, wherein Justice Gajendragadkar, after reiterating the preceding point, stated: “It may be that the mischief intended to be punished partly consists in the violation or the infringement of the guardians' right to keep their wards under their care and custody; but the more important object of these provisions undoubtedly is to afford security and protection to the wards themselves.” Accordingly, the Court held that although the two Madras decisions might be pressed to suggest that the word “taking” appearing in sections 497 and 498 of the Penal Code should be given a broad construction to achieve the purpose of those sections, there was no justification for extending such a wide meaning to the word “taking” in the context of section 361 and its cognate sections. The Court then turned to the last case relied upon by the High Court, Ramaswami Udayar v. Raju Udayar, which also concerned section 498. In that judgment the learned judge followed the earlier Madras decisions but additionally observed that a minor could not lawfully abandon her guardian; therefore, when a minor left her guardian of her own accord and subsequently entered the custody of the accused, it was unnecessary to demonstrate that the accused had performed any overt act before he could be convicted under section 498. The learned judge further remarked: “A woman's free will, or her being a free agent, or walking out of her house of her own accord are absolutely irrelevant and immaterial for the offence under section 498.” The Court explained that whatever the position might be concerning an offence under that section, and even assuming that a minor could not in law abandon the guardianship of her lawful guardian, the accused who later kept the minor in his company could not be held guilty of “taking” her out of the keeping of her guardian unless additional facts were established. This view concurred with the rulings reported in Cox’s Criminal Cases. In Reg. v. Christian Olifier, Baron Bramwell addressed the jury, saying: “I am of opinion that if a young woman leaves her father's house without any persuasion, inducement, or blandishment held out to her by a man, so”. In Rex v. James Jarvis, Justice Jelf instructed the jury that although a taking was required, “it is quite clear that an actual physical taking away of the girl is not necessary to render the prisoner liable to conviction; it is sufficient if he persuaded her to leave her home or go away with him by persuasion or blandishments.”

Baron Bramwell explained that even if a young woman manages to get away from her home and then goes to the accused, the accused’s failure to return her to her parents does not constitute an offence under the Act of Parliament (24 & 25 Vict. c. 100, s. 55), because the statute obliges the person only not to take her away, not to restore her to parental custody. In the case that followed, the jury found the accused guilty because the girl’s testimony indicated that her initial decision to leave her father’s house was prompted by the accused’s solicitations and his promise to marry her. The judgment then turned to another authority, Rex v. James Jarvis, where Justice Jelf addressed the jury, stating that although a “taking” must be present, a physical removal of the girl is not necessary for conviction; it is sufficient if the accused persuaded her to leave her home or accompany him by means of persuasion or blandishments. He instructed the jury to consider whether the active part in the joint departure was performed by the accused or by the girl herself; if the latter, the accused should be acquitted. Justice Jelf further emphasized that even if the accused failed to fulfill his moral duty to advise the girl to return home, that omission alone does not merit a conviction. He clarified that when a girl is determined to leave home, expresses that determination, and insists on accompanying the accused—or even writes to suggest that they go together—if the accused merely yields to her suggestion without taking an active role, the jury must find him not guilty. Conversely, if the accused’s conduct actively persuaded the girl, by blandishments or otherwise, to leave her home either at that moment or in the future, he should be found guilty of abduction. In the Jarvis case, the evidence showed no solicitation by the accused at any time, leading the jury to return a verdict of not guilty. Moreover, there was no indication that the girl lacked the capacity to think independently or to make her own decisions. The court noted that the relevant sections of the Penal Code closely mirror the provisions of the Act of Parliament discussed in the earlier case.

Relying on the two cases above, together with two additional authorities, the court cited the statement of law recorded in Halsbury’s Laws of England, third edition, volume 10, page 758, which declares that a defendant may be convicted even though he did not participate in the actual removal of the girl, provided that he had previously solicited her to leave her father’s care and subsequently harboured her after she did so. This principle underlines that the critical element is the accused’s prior solicitation that induced the girl to depart from the guardianship, rather than the physical act of taking her away. The citation reinforces the view that the offence is complete when the accused’s influence leads the girl to exit her guardian’s keeping, irrespective of whether the accused later assists or merely shelters her. This interpretative approach aligns with the reasoning applied in the earlier English decisions and guides the application of similar provisions in the Indian Penal Code.

In this case the Court observed that when a girl leaves her father's protection of her own accord and the defendant does not take an active role in persuading or advising her to leave, the defendant cannot be convicted of the offence, even if he fails to advise her not to come or to return and later shelters her. Counsel for the appellant relied on the decisions in Rajappan v. State of Kerala (1) and Chathu v. Govindan Kutty (2). Both of those decisions held that the phrase “taking out of the keeping of the lawful guardian” requires an act by the accused that can be treated as the proximate cause of the person leaving the guardian’s care; in other words, the accused must have performed an act without which the person would not have gone out of the guardian’s protection. The learned judges in those cases followed, among others, two English authorities previously mentioned. A similar view appears in the decision in Nura v. Rex (3). The Court, however, did not accept every proposition set out in those authorities. It clarified that the mere fact that the accused’s conduct was not the immediate cause of the girl’s departure does not exonerate him if, at an earlier stage, he had solicited or induced her in any manner to take that step. (1) I.L.R. [1960] Kerala, 481. (2) I.L.R. [1957] Kerala, 591. (3) A.I.R. 1949 All. 710.

Mr Ranganadham Chetty, appearing for the State, placed reliance on the decisions in Bisweswar Misra v. The King (1) and In re Khalandar Saheb (2). The first decision was distinguished because it was found that the accused had actually induced the girl to leave the house of her lawful guardian. The Court further explained that mere passive consent by a person who provides shelter to a minor does not amount to “taking” or “enticing” the minor. Only an active step that brings about the minor’s stay in the shelter by exploiting the minor’s weak and hesitant mind constitutes “taking” within the meaning of section 361. In the subsequent case, the accused’s conduct, on the facts, was held to fall under section 366 of the Indian Penal Code, and the decision in Nura v. Rex (3) was expressly distinguished. Referring to that case, the Court quoted the observation of Mustaq Ahmed J. that where a minor girl voluntarily leaves the roof of her guardian and, while away from her house, encounters another person who treats her kindly, she cannot be held guilty under section 361.

In applying the Indian Penal Code, the Court observed that the earlier decision could not aid the accused because, on the facts of that case, the girl had voluntarily left the protection of her parents and thereafter went with the accused; by contrast, the present evidence did not permit a finding that the girl was outside the guardianship of her father. Whether she stepped out of the house to answer a natural call or proceeded to the accused’s residence pursuant to a prior arrangement, she remained under her father’s guardianship, and the record did not show that she abandoned that guardianship and was subsequently taken by the accused. The Court stressed the essential distinction between the terms “taking” and “enticing,” noting that the minor’s mental attitude is irrelevant for the offence of taking and that “take” means to cause a person to go, to escort, or to obtain possession. However, these observations must be read in the factual context of the earlier case, where the minor girl had been persuaded after leaving her house for a natural call, was carried to another village, lodged in the accused’s uncle’s house, and later returned to her father by the uncle; the presence of persuasion created the girl’s willingness and thus distinguished that case. Consequently, the Court held that neither of the cited decisions supported the State’s case. After evaluating the material on record, the Court was satisfied that no offence under section 363 of the Indian Penal Code had been established against the appellant, and therefore the appellant was entitled to acquittal. The appeal was allowed, the conviction and sentence imposed on the appellant were set aside, and the order of acquittal was entered.