Kidnapping and Abduction under BNS: Sections 137 to 141 with Landmark Cases

Kidnapping and abduction are two distinct offences in Indian criminal law, often confused but doctrinally very different. Kidnapping under Section 137 BNS is the taking away of a person from India or from lawful guardianship. Abduction under Section 138 BNS is the compelling or inducing of a person to go from a place by force or deceit. Kidnapping is a completed offence in itself; abduction is not an offence unless it is with a specific criminal purpose (murder, ransom, marriage, prostitution). The Bharatiya Nyaya Sanhita, 2023, codifies these offences with the classical framework of the IPC largely retained. Sections 139 to 141 address aggravated forms: kidnapping or maiming a child for begging, kidnapping for murder or ransom, and importation of a girl from a foreign country. This module walks through each section, the ingredients, the leading cases from S. Varadarajan through Prakash to Chandrakala, and the sentencing framework.

1. Introduction

Kidnapping and abduction distinguished

The classical distinction

Kidnapping under Section 137 BNS is the taking or enticing of a person out of India, or out of lawful guardianship. It is a completed offence in itself, regardless of purpose.
Abduction under Section 138 BNS is compelling or inducing a person to go from a place by force or deceit. Abduction is not itself an offence; it is punishable only in specified aggravated contexts (Sections 139 to 141 BNS).
Kidnapping is complete once the taking is complete. Abduction is a continuing offence for as long as the compulsion or deceit continues.
Kidnapping applies specifically to persons under 16 (male), under 18 (female), or of unsound mind (Section 137(2)), or to any person taken out of India (Section 137(1)). Abduction has no age restriction.

Sections 137 to 141 overviewed

Section	Scope	Punishment
Section 137	Kidnapping (from India, from lawful guardianship)	Up to 7 years and fine
Section 138	Abduction (definition)	Not itself an offence
Section 139	Kidnapping or maiming a child for begging	Minimum 10 years, extending to life
Section 140	Kidnapping for murder, ransom, wrongful confinement, or slavery	Life imprisonment or death (ransom)
Section 141	Importation of girl under 21 from foreign country	Up to 10 years and fine

Constitutional context: personal liberty

Article 21 of the Constitution guarantees the right to personal liberty. The offences of kidnapping and abduction give specific effect to this guarantee, protecting the person's right to move freely and to be with their chosen family and guardians. The state's role in enforcing these provisions is one of the classical criminal law responses to interferences with personal liberty.

2. Section 137 BNS: Kidnapping

Text of Section 137

Section 137 BNS (formerly Sections 359 to 361 IPC)

(1) Kidnapping is of two kinds:

(a) kidnapping from India;
(b) kidnapping from lawful guardianship.

(2) 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.

(3) Whoever takes or entices any minor under the age of eighteen years 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 sub-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.

(4) 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.

Kidnapping from India

Section 137(2) covers the taking of any person, of whatever age, beyond the limits of India without consent. Applies to:

Any person: no age restriction.
Beyond the limits of India: the person must be actually taken outside India, not merely near the border.
Without consent: either the person's own consent or the consent of someone legally authorised to consent.

Kidnapping from lawful guardianship

Section 137(3) covers the taking or enticing of a minor or a person of unsound mind out of the keeping of a lawful guardian. Applies to:

A minor: female under eighteen (age of majority for females for this purpose).
A person of unsound mind: incapable of consent by reason of mental incapacity.
Taking or enticing: physically taking, or inducing by any means.
Out of the keeping: separating from the guardian's control.
Without consent of the guardian: the guardian's consent, not the minor's consent, is the operative consent.

The age thresholds

Note that Section 137(3) refers only to a female minor under eighteen. This is a change: the classical IPC Section 361 also covered male minors under sixteen. The BNS treats female minors under eighteen as the specifically protected class. Male minors and persons of unsound mind fall within the general framework.

Punishment

Kidnapping under either sub-section is punishable with imprisonment up to seven years and fine. Section 137 does not itself prescribe a minimum. Where the kidnapping is for one of the aggravated purposes of Section 139, 140, or 141, the specific section applies with its enhanced punishment.

3. What Constitutes Lawful Guardianship

Natural guardians

Father: the natural guardian of a legitimate child.
Mother: guardian in the father's absence, or where the father is disqualified.
Guardians under personal law: including specific religious frameworks for guardianship.

Testamentary and appointed guardians

Guardians appointed by will.
Guardians appointed by a court.
Guardians recognised under the Guardian and Wards Act, 1890.

The lawful care requirement

The Explanation to Section 137(3) clarifies that lawful guardian includes any person lawfully entrusted with the care or custody of the minor. This extends beyond legal guardians to include:

Teachers to whom the child has been entrusted.
Relatives caring for the child with the parents' consent.
Foster parents and other de facto carers with lawful authority.
Institutional carers (schools, hostels, orphanages) where the child has been placed.

Loss of guardianship

Guardianship may be lost or displaced:

A parent who has been disqualified by a court order.
A parent from whom custody has been formally transferred.
A guardian who has consented to the child being with another person.

Where guardianship is lost, kidnapping of the person from the former guardian's custody is not an offence.

4. The Consent of the Minor: Irrelevance

The classical rule

Under Section 137(3), the minor's own consent is legally irrelevant. What matters is the consent of the lawful guardian. Even where the minor voluntarily accompanied the accused, if the guardian did not consent, kidnapping is made out.

S. Varadarajan v. State of Madras

📖 S. Varadarajan v. State of Madras, AIR 1965 SC 942

The Supreme Court considered a case where the accused had been visited by the minor girl of her own accord and had married her. The Court held that where the minor of her own free will and knowledge went to the accused, without any inducement or persuasion by him, the accused had not 'taken' or 'enticed' her out of guardianship. The kidnapping offence was not made out. Rule: taking or enticing requires positive conduct by the accused; passive receipt of the minor is not enough.

Distinction between taking and going with

The Varadarajan rule distinguishes between:

Taking: the accused actively removes the minor from the guardian's custody. This is kidnapping.
Enticing: the accused induces or persuades the minor to leave the guardian. This is kidnapping.
Going with: the minor voluntarily leaves the guardian and comes to the accused. This is not kidnapping.

The distinction is significant in practice, particularly in inter-caste elopement cases where the minor has voluntarily left home to be with the accused. Where the accused did nothing to induce her, kidnapping is not made out. The mere fact that the minor is under eighteen does not convert her voluntary conduct into the accused's crime.

5. Section 138 BNS: Abduction

Text of Section 138

Section 138 BNS (formerly Section 362 IPC)

Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.

The two methods: force and deceit

Force: physical compulsion; carrying, dragging, or threatening the person into moving.
Deceit: false representations that induce the person to move. Classic examples: false promises of employment, false promises of marriage, deceptive claims of family emergencies.

Abduction not itself an offence

Section 138 defines abduction but does not itself make it an offence. Abduction is punishable only in specified aggravated contexts:

Section 140: kidnapping or abduction for murder, ransom, wrongful confinement, or slavery.
Section 141: importation of girls from foreign countries.
Sections 87 and 96 BNS: specific offences involving abduction for marriage or prostitution.

Where the abduction has none of these aggravated purposes, no offence is committed. This distinguishes abduction sharply from kidnapping, which is itself an offence.

Aggravated abduction offences

Section 87 BNS: kidnapping or abducting a woman to compel her marriage or to force or seduce her to illicit intercourse.
Section 96 BNS: procuration of a minor girl.
Section 140 BNS: abduction for the four specified purposes.
Section 141 BNS: importation of girls.

6. Section 139 BNS: Kidnapping or Maiming a Child for Begging

Text of Section 139

Section 139 BNS (formerly Section 363A IPC)

(1) Whoever kidnaps any child or, not being the lawful guardian of a child, obtains the custody of the child, in order that such child may be employed or used for the purposes of begging shall be punishable with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.

(2) Whoever maims any child in order that such child may be employed or used for the purposes of begging shall be punishable with imprisonment for life, and shall also be liable to fine.

The minimum punishment framework

Kidnapping or obtaining custody of a child for begging: minimum ten years, extending to life imprisonment, and fine.
Maiming a child for begging: mandatory life imprisonment, and fine.

Rationale for enhanced severity

Section 139 addresses the specific evil of child trafficking for begging: children abducted or bought from vulnerable families, sometimes deliberately maimed to elicit more sympathy, and then exploited by begging syndicates. The provision reflects the specific gravity of exploiting the most vulnerable children in the most brutal manner. The mandatory life imprisonment for maiming reflects the particular horror of deliberately disfiguring a child for financial gain.

7. Section 140 BNS: Kidnapping for Murder, Ransom, Etc.

The four purposes covered

Kidnapping for murder.
Kidnapping for ransom.
Kidnapping for wrongful confinement.
Kidnapping for slavery, forced labour, or subjugation to unnatural lust.

Kidnapping for murder: life imprisonment

Section 140(1) BNS

Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

Kidnapping for ransom: death or life imprisonment

Section 140(2) BNS

Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, in order to compel the Government or any foreign State or international inter-governmental organisation or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.

Section 140(2) provides the most severe punishment: death or life imprisonment. Kidnapping for ransom, particularly with threats to the victim, is treated as one of the gravest offences short of murder itself.

Kidnapping for wrongful confinement or slavery

Section 140(3) and (4) BNS

(3) Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

(4) Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected, to grievous hurt or slavery, or to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

8. Section 141 BNS: Importation of Girl from Foreign Country

Section 141 BNS (formerly Section 366B IPC)

Whoever imports into India from any country outside India any girl under the age of twenty-one years with intent that she may be, or knowing it to be likely that she will be, forced or seduced to illicit intercourse with another person, shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.

Section 141 addresses transnational trafficking of girls for illicit intercourse. Key features:

Girls under twenty-one years.
Import into India from any country outside India.
With intent, or knowledge of likelihood, of forcing or seducing to illicit intercourse.
Punishment: up to ten years and fine.

The provision addresses the specific cross-border dimension of sex trafficking. It operates alongside the Immoral Traffic (Prevention) Act, 1956, which provides additional procedural and substantive provisions.

9. Distinction from Wrongful Confinement

Kidnapping/Abduction	Wrongful Confinement
Taking or enticing a person from a place or from lawful guardianship.	Preventing a person from proceeding beyond certain limits.
Focus on the initial taking or enticement.	Focus on the confinement itself.
Kidnapping is a completed offence at the taking; the subsequent confinement is separate.	Confinement is a continuing offence during the period of confinement.
Age matters (under 18 for females) for kidnapping from guardianship.	No age restriction.
Sections 137 and 138 BNS.	Sections 126 and 127 BNS.

Prosecutions often charge both. A person may be kidnapped (Section 137) and then wrongfully confined (Section 127). Each offence is distinct and can be charged separately, though the sentencing considers the overall course of conduct.

10. Judicial Elaboration and Landmark Cases

📖 S. Varadarajan v. State of Madras, AIR 1965 SC 942

Discussed above. Voluntary conduct of the minor without inducement by the accused does not constitute kidnapping.

📖 Prakash v. State of Haryana, (2004) 1 SCC 339

The Supreme Court considered a case of alleged kidnapping in an elopement scenario. The Court applied the Varadarajan framework and held that where the minor girl had voluntarily accompanied the accused, without any inducement, kidnapping was not made out. Rule: elopement of a willing minor is not kidnapping in the absence of active enticement.

📖 State of Haryana v. Raja Ram, AIR 1973 SC 819

The Supreme Court considered the meaning of enticing. The Court held that enticing includes any conduct by the accused that induces or persuades the minor to leave the guardian. It need not be a direct request; even indirect encouragement or creation of a favourable environment can constitute enticing. Rule: broad interpretation of enticing.

📖 Chandrakala Menon v. Vipin Menon, (1993) 2 SCC 6

The Supreme Court considered a case where a father had taken his own children out of the mother's custody after a matrimonial dispute. The Court held that where the parent has legal custody or joint guardianship rights, the offence of kidnapping does not arise from the parent's own conduct in taking the children. Rule: parents' own conduct in matrimonial disputes and custody issues does not attract Section 361 (now Section 137) automatically.

📖 State of West Bengal v. Sasa Mati, (1969) 3 SCC 218

The Supreme Court considered the ingredients of abduction under Section 362 IPC (now Section 138 BNS). The Court held that abduction requires either force or deceit; a person who voluntarily accompanies the accused, with full knowledge of the circumstances, is not abducted. Rule: voluntariness excludes abduction.

📖 Vishwanath v. State of Uttar Pradesh, AIR 1960 SC 67

The Supreme Court considered a case of abduction for compelled marriage. The Court held that where the woman was compelled by force or deceit to accompany the accused for the purpose of marriage, abduction was made out and Section 366 IPC (now Section 87 BNS) applied. Rule: abduction for marriage attracts aggravated punishment.

📖 Kishore Singh v. State of Rajasthan, (1981) 1 SCC 503

The Supreme Court considered a case of kidnapping for ransom. The Court applied Section 364A IPC (now Section 140(2) BNS) and held that the specific ransom purpose is the aggravating feature. Rule: careful examination of the ransom demand is required.

📖 Vikram Singh v. Union of India, (2015) 9 SCC 502

The Supreme Court considered the constitutional validity of the death penalty under Section 364A IPC. The Court upheld the provision as constitutional, holding that the specific evil of ransom kidnapping justifies the severe punishment. Rule: constitutional validity of death penalty for ransom kidnapping affirmed.

📖 Malleshi v. State of Karnataka, (2004) 8 SCC 95

The Supreme Court considered the ingredients of Section 364A IPC. The Court held that the section requires: (i) kidnapping or abduction; (ii) threat to cause death or hurt or conduct giving rise to reasonable apprehension of death or hurt; and (iii) purpose of compelling payment of ransom or extraction of other advantage. Rule: three-part test for Section 140(2) BNS.

📖 Sanjay Kumar Kedia v. Narcotics Control Bureau, (2010) SC

The Supreme Court considered a case involving international trafficking of persons and its relationship with kidnapping and abduction provisions. Rule: modern application of kidnapping and abduction provisions in the transnational context.

11. Consolidated Landmark Judgments

S. Varadarajan v. State of Madras, AIR 1965 SC 942. Voluntary conduct of minor is not kidnapping.
Prakash v. State of Haryana, (2004) 1 SCC 339. Elopement of willing minor is not kidnapping without enticement.
State of Haryana v. Raja Ram, AIR 1973 SC 819. Broad interpretation of enticing.
Chandrakala Menon v. Vipin Menon, (1993) 2 SCC 6. Parents' conduct in custody disputes.
State of West Bengal v. Sasa Mati, (1969) 3 SCC 218. Abduction requires force or deceit.
Vishwanath v. State of Uttar Pradesh, AIR 1960 SC 67. Abduction for marriage.
Kishore Singh v. State of Rajasthan, (1981) 1 SCC 503. Kidnapping for ransom.
Vikram Singh v. Union of India, (2015) 9 SCC 502. Constitutional validity of death penalty for ransom kidnapping.
Malleshi v. State of Karnataka, (2004) 8 SCC 95. Three-part test for Section 364A IPC.
Sanjay Kumar Kedia v. Narcotics Control Bureau, (2010) SC. Modern transnational context.
Suman Sood v. State of Rajasthan, (2007) 5 SCC 634. Application of Section 364A in political kidnapping.
Anil Rai v. State of Bihar, (2001) 7 SCC 318. Application of kidnapping provisions.
State of Bihar v. Rajendra Kumar Singh, (1996) 8 SCC 692. Kidnapping and confinement charged together.
Anwar v. State of Uttar Pradesh, (2019) SCC OnLine SC 1210. Age determination in kidnapping cases.
Bachpan Bachao Andolan v. Union of India, (2011) 5 SCC 1. Child kidnapping and trafficking. State duty.

Frequently Asked Questions

What is the difference between kidnapping and abduction under BNS?

Kidnapping under Section 137 BNS is the taking or enticing of a person from India or from lawful guardianship. It is a completed offence in itself. Abduction under Section 138 BNS is compelling or inducing a person to go from a place by force or deceit. Abduction is not itself an offence; it is punishable only in specified aggravated contexts (kidnapping for murder, ransom, marriage, prostitution). Kidnapping is complete at the taking; abduction is a continuing offence during the compulsion or deceit.

What is Section 137 BNS?

Section 137 of the Bharatiya Nyaya Sanhita, 2023 (formerly Sections 359 to 361 IPC), defines and punishes kidnapping. Two forms: (i) kidnapping from India, being the taking of any person beyond Indian territory without consent; and (ii) kidnapping from lawful guardianship, being the taking or enticing of a female minor under eighteen or a person of unsound mind out of the keeping of a lawful guardian without the guardian's consent. Punishment: up to seven years and fine.

Does the minor's consent matter in kidnapping cases?

No. Under Section 137(3), the minor's own consent is legally irrelevant. What matters is the consent of the lawful guardian. However, in S. Varadarajan v State of Madras, AIR 1965 SC 942, the Supreme Court distinguished between the accused's taking or enticing the minor (kidnapping) and the minor's voluntarily going with the accused (not kidnapping). Where the minor of her own free will went to the accused without inducement, kidnapping is not made out. This distinction is significant in elopement cases.

What is Section 140 BNS?

Section 140 BNS (formerly Section 364A IPC) addresses aggravated kidnapping for four purposes: (i) murder (life imprisonment or up to ten years and fine); (ii) ransom (death or life imprisonment and fine, the most severe); (iii) secret wrongful confinement (up to seven years and fine); and (iv) grievous hurt, slavery, or unnatural lust (up to ten years and fine). Kidnapping for ransom is treated as one of the gravest offences short of murder itself.

What is Section 139 BNS?

Section 139 BNS addresses the specific evil of child trafficking for begging. Where a person kidnaps a child, or not being the lawful guardian obtains custody of a child, in order to employ or use the child for begging: minimum ten years, extending to life imprisonment, and fine. Where the accused maims the child for begging (deliberate disfigurement to elicit sympathy for begging): mandatory life imprisonment and fine. The provision responds to the specific horror of exploiting the most vulnerable children in the most brutal manner.

Can a father kidnap his own child?

Ordinarily no. In Chandrakala Menon v Vipin Menon, (1993) 2 SCC 6, the Supreme Court held that where a parent has legal custody or joint guardianship rights, the offence of kidnapping does not automatically arise from the parent's conduct in taking the children. However, where a parent has lost custody through a court order (in matrimonial proceedings or otherwise), the parent's subsequent taking of the child against the custody order may attract kidnapping charges. The specific facts, including any binding custody orders, are decisive.