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SC Verdict On Kidnapping Like Free Pass Given To Controlling Husbands Who ‘Don’t Hit’ Wives

Posted: July 1, 2021

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Should a criminal be let off just because he did not ‘physically harm’ his victim? SC verdict on kidnapping is patriarchy at its best; blind to emotional and mental trauma.

The recent SC verdict on kidnapping says that a person who has kidnapped a minor for ransom but looks after the minor well and does not threaten to harm or kill the minor for extracting the ransom amount, could not be sentenced to life imprisonment for committing the offence of kidnapping.

This strongly suggests a parallel in India society – traditional Indian marriages where the husband controls most things, and no one sees anything wrong in it as long as he does not hit her, and the SC verdict on kidnapping just reinforces this as valid.

What are the facts of the case?

In the present case, an auto driver kidnapped a sixth-standard student of St Mary’s High school in Secunderabad on the pretext of dropping him home as reported here. He took the minor boy to his home instead and demanded a ransom of Rs. 2 lakh from the minor’s family members. The decoy policemen rescued the minor when the father of the minor boy went to pay the ransom money.

Both the minor boy and his father have admitted in court that the accused auto driver had treated the boy well and had not threatened to harm or endanger the life of the minor boy in any manner. However the trial court and the High Court had convicted the auto driver under Section 364 A of the Indian Penal Code and sentenced him to life imprisonment.

The auto driver appealed in the SC against this conviction on the ground that there had been no threat to the life of the minor child who was held hostage. Hence he claimed that he should be given a lesser sentence.

SC verdict on kidnapping blind to mental trauma

Justices Ashok Bhushan and R Subhash Reddy who presided over the case stated that in addition to the kidnapping and keeping such person in detention, under kidnapping Section 364 A of IPC the accused “should have threatened to cause the hostage grievous hurt or death or by his action cause apprehension of such threat or causes death or grievous injury to the hostage.”

In the present case there was “only kidnapping” but the rest of this law did not apply. The statement of the minor boy’s father specifying that his son was not physically assaulted and the minor boy stating he was treated in a good manner, were considered to add weight to the observation.

Hence the conviction of life sentence awarded to the accused by the High Court was set aside and he was sentenced to 7 years imprisonment and fined Rs.5000.

Kidnapping under the Indian law

The literal meaning of kidnapping is child stealing, but when the term is looked at from the scope of the Indian criminal law it would be defined as an act of unlawfully carrying away a human being against their consent or the person legally authorized to consent on their behalf and keep them in confinement. Thus, from the definition of this act under the law, it is evident that this ought to be punished with the highest degree of seriousness as the act involves confining a person against their will. This results in the victim being deprived of their fundamental right of Right to Freedom.

Kidnapping has been covered under the Indian Penal Code from Sections 359 to 369 which deals with various forms of kidnapping. In the present case to be discussed, the act of kidnapping was done for extracting ransom, hence it was an offense punishable under Section 364 A of the Indian Penal Code. The reason the case has gained attention is the unusual judgment delivered by the Apex Court where despite the offense being committed, the accused was not punished as he treated the victim well and did not harm him in any way.

Literal interpretation of ‘grievous hurt’ is exactly what most Indian marriages are about

Section 364 A of IPC which was discussed in detail in the present case and was the point of contention was added to the Indian Penal Code by an amendment in 1993 to tackle the increasing cases of kidnapping for ransom resulting in murder or grievous injury of the hostages. Despite the seriousness accorded to a crime of kidnap committed for ransom, the same was not considered with the due gravity in the present case is saddening.

Another issue is, why is it important that the boy was not physically, ‘grievously’ hurt?. Why is the hurt being considered solely physical? Taking a child to an unknown place on a false pretext and holding him captive is enough to cause deep-rooted mental, and could result in the child having issues in trusting other humans in the future. Isn’t this mental trauma worthy of being considered grievous? Also, holding him captive against his wish for ransom money is restricting his right to freedom; why could this not have been considered as a threat to the life of the victim?

As some have noticed, this is exactly what most Indian arranged marriages are, aren’t they? A husband ‘takes care’ of his wife, doesn’t hit her. However, he gets away with any emotional abuse and controlling behaviour. And not enough can be said about rampant marital rape in the name of wife’s duty, the better.

And the stalker/ kidnapper with a ‘golden’ heart’?

In popular culture, specifically in our mainstream cinema, we have often seen the abuser, stalker, and kidnapper being glorified as the ruffian with his heart in the right place. Often this is justified by showing that he is abusive, controlling, and restrictive towards his victim who is the heroine, but then he doesn’t raise his hand on her or rather does everything with the aim of her care or protection so he is a good guy.

This judgment is similar. The kidnapper made the boy board his auto on a false pretext and then took him to a place unfamiliar to him and proceeded to demand ransom from his family while confining the boy to his house. The mere fact that he did not physically abuse the boy or did not directly threaten him of the same, saved him from punishment.

Is restricting an individual’s freedom of movement and causing deceit, not a serious threat to the victim? Why is it that a strong punishment is accorded to a criminal only when their victim is dead, why is the dignity of a person alive not accorded the same importance?

Image source: By Bodhisattva DasguptaOwn work, CC BY-SA 3.0, Link and a still from the film Highway

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