Is It Kidnapping When an Adult Married Woman Leaves Home of Her Own Free Will?

A married woman of 22 leaves her matrimonial home and moves in with another adult man. Before the police, and again before the Magistrate, she states that she left of her own free will, was neither forced nor deceived, and continues to live with him by choice. Her husband nonetheless registers a complaint of kidnapping against the man. On the law as it stands — the Bharatiya Nyaya Sanhita 2023 (BNS), the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS) and settled Supreme Court precedent — that complaint discloses no offence, and pursuing it is an abuse of the criminal process.

The scenario, and the only question that matters

Call the couple Mrs. X and Mr. Y. The husband's complaint will typically invoke some combination of kidnapping, abduction, wrongful confinement, trafficking and criminal intimidation. Every one of these theories runs into the same wall: the alleged victim is an adult who denies that any offence was committed against her. Five features of the scenario decide the outcome:

• Mrs. X is an adult — past the age of majority of 18 years;
• she explicitly denies kidnapping, abduction or confinement;
• she states that she left voluntarily, without force or coercion;
• she asserts that her continued residence with Mr. Y is her own choice; and
• she appears in person before the Magistrate and repeats this account.

Once those facts are on record, the prosecution fails at the level of statutory ingredients, and the Constitution independently bars the State from using criminal law to police her choice. Each layer is examined in turn.

Section 137 BNS: kidnapping is an offence against guardianship, not marriage

Section 137(1) of the Bharatiya Nyaya Sanhita 2023 recognises two kinds of kidnapping. Kidnapping from India, under clause (a), consists of conveying a 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". Kidnapping from lawful guardianship is defined in clause (b):

"whoever takes or entices any child or any person of unsound mind, out of the keeping of the lawful guardian of such child or person of unsound mind, without the consent of such guardian, is said to kidnap such child or person from lawful guardianship."

Section 137(2) punishes either kind with imprisonment of up to seven years and fine. Three features of this framework put an adult woman's voluntary departure wholly outside it.

First, "child" means a person under 18. Section 2(3) BNS defines "child" as any person below the age of eighteen years. Kidnapping from lawful guardianship applies only to children and persons of unsound mind. A 22-year-old woman is categorically outside the provision: guardianship itself terminates on majority, and an adult is a legal person in her own right with full capacity to decide where and with whom she lives.

Second, a husband is not his wife's "lawful guardian". The Explanation to Section 137(1) says that "lawful guardian" includes "any person lawfully entrusted with the care or custody of such child or other person". Guardianship is a concept for minors and persons lacking mental capacity. Neither the Hindu Marriage Act 1955 nor any other personal law vests guardianship of an adult spouse in the other spouse; marriage creates a legal partnership with defined rights and duties, not custody. Whatever guardianship Mrs. X's parents once held ended when she turned 18, and her husband acquired none by marrying her.

Third, for an adult, her own consent is decisive. Even for kidnapping from India, the statute is satisfied by the consent of the person conveyed. An adult woman is the person legally authorised to consent on her own behalf; her husband has no legal authority to consent, or to withhold consent, for her movement or residence. Mrs. X has affirmatively consented to living with Mr. Y. The essential ingredient of absence of consent is simply not there.

The case law under Section 361 of the Indian Penal Code 1860, the predecessor provision, confirms this structure. In State of Haryana v. Raja Ram, AIR 1973 SC 819, the Supreme Court held that "the consent of the minor who is taken or enticed is wholly immaterial. It is only the guardian's consent which takes the case out of its purview." The converse follows: where there is no guardian because the person is an adult, it is the adult's own consent that takes the case out of the section. And in S. Varadarajan v. State of Madras, AIR 1965 SC 942, the Court held:

"Where a minor girl voluntarily leaves the roof of her guardian and when out of his house, comes across another who treats her with kindness, he cannot be held guilty… In such cases, something more has to be shown, that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian."

If even a minor's voluntary departure does not incriminate the man she joins unless he actively induced it, an adult woman's unambiguous statement that she left of her own free will, without inducement, force or deception, makes a kidnapping charge plainly unsustainable.

Section 138 BNS: abduction requires force or deceit, and she denies both

Abduction, unlike kidnapping, can be committed against any person, including an adult. Section 138 BNS provides:

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

Two ingredients are exhaustive: compulsion by force, or inducement by deceitful means. Force connotes physical violence, threats of immediate harm or coercion overbearing the person's will; deceit means a deliberate misrepresentation about material facts. Mrs. X's statement negates both. She says she left voluntarily — so she was not compelled. She says she was not misled or manipulated — so she was not deceived. An adult acting with full knowledge and consent cannot simultaneously be the victim of abduction.

There is also a structural point. Section 138 standing alone carries no punishment; abduction becomes punishable only when paired with a further criminal purpose under Sections 139, 140 or 141 BNS. It is a means-element, not a standalone offence, and where the "means" (force or deceit) are disproved by the alleged victim herself, nothing remains to build on.

Confinement and trafficking theories fail on their own terms

Section 142 BNS punishes anyone who, "knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person". By its express language, it presupposes a completed kidnapping or abduction. Since neither offence is made out against Mr. Y, Section 142 has nothing to attach to. More broadly, any confinement-based charge presupposes detention against the person's will — and Mrs. X asserts that her residence is her own continuing choice.

Trafficking under Section 143 BNS is sometimes added to complaints of this kind for its gravity. It does not fit. The offence requires an act (recruiting, transporting, harbouring, transferring or receiving a person), committed through specified means (threats, force, coercion, abduction, fraud, deception, abuse of power or inducement), and — critically — "for the purpose of exploitation", which Explanation 1 defines to include physical or sexual exploitation, slavery, servitude, beggary or forced removal of organs. Mrs. X alleges no exploitation; she describes a consensual relationship and a residence she has chosen.

Explanation 2 to Section 143 — "the consent of the victim is immaterial in determination of the offence of trafficking" — is occasionally misread as making consent irrelevant altogether. Its function is narrower: where a person was recruited or moved for an exploitative purpose, apparent consent procured at the time (for instance, by fraudulent inducement) does not excuse the trafficker. The Explanation presupposes exploitation; it does not convert consensual cohabitation into trafficking.

Once the core offences fall, the ancillary charges fall with them

Complaints of this kind often append criminal intimidation (Section 351 BNS), criminal conspiracy (Section 61 BNS) and cheating (Section 318 BNS). None survives Mrs. X's account. Intimidation requires threats causing alarm — she alleges none. Conspiracy requires an agreement to commit an offence — there is no underlying offence to agree upon. Cheating requires deception causing wrongful loss or harm — she denies being deceived. Ancillary charges cannot outlive the principal ones they are parasitic upon.

The new code did not widen the net

The BNS repealed the Indian Penal Code 1860 with effect from 1 July 2024. On kidnapping and abduction, the transition changed structure and numbering, not substance:

The move to a gender-neutral definition of "child" did not extend kidnapping to adults; it confirmed that every person aged 18 or above, of either gender, is an adult who cannot be "kidnapped from guardianship". The consolidation of the old sections into Section 137 preserved the essential elements — the guardian's consent for minors, the person's own consent for adults. If anything, the reform reinforces the position that an adult's residence and associations are matters of personal autonomy, not criminal law.

The constitutional bar: movement, residence, privacy, dignity

Even before one reaches the statute, the Constitution occupies the field. Article 19(1)(d) guarantees every citizen the right "to move freely throughout the territory of India"; Article 19(1)(e), the right "to reside and settle in any part of the territory of India"; Article 14, equality before the law; and Article 21 provides that "no person shall be deprived of his life or personal liberty except according to procedure established by law". Mrs. X therefore has a constitutional entitlement to choose her residence — with her family of origin, her marital family, or anywhere else.

Article 19's freedoms admit only reasonable restrictions imposed by law in defined public interests such as public order, morality or health. A kidnapping prosecution built on a woman's voluntary departure serves none of these; it is an attempt to regulate a personal, consensual decision about residence through the guise of criminal law. Since Maneka Gandhi v. Union of India, (1978) 1 SCC 248, Article 21 has been read to protect not bare physical existence but a life of dignity, including free movement and association with fellow human beings — a protection that plainly extends to the choice of one's home and companion.

The nine-judge Bench in Justice K.S. Puttaswamy (Retd) v. Union of India (decided 24 August 2017) placed these choices within the fundamental right to privacy under Article 21:

"The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual."

The judgment reasons that autonomy means the ability to take decisions on vital matters of one's life, that what matters is the nature of the activity rather than where it occurs, and that it is not for the State to choose or arrange the choice of a partner — that choice belongs to the partners themselves. Dignity, the Court held, is the motif uniting equality and privacy throughout the fundamental rights. Criminal prosecution aimed at a woman's decision about whom to live with is state interference in precisely the zone Puttaswamy declares inviolable.

Three judgments that close the door

Lata Singh v. State of U.P. (2006): prosecution as abuse of process

In Lata Singh v. State of U.P., (2006) 5 SCC 475, an adult woman left her brother's house and married a man of another caste. Her brothers, enraged, procured a kidnapping case against her husband and his relatives — and it was pressed to trial despite her statement under Section 164 CrPC before the Chief Judicial Magistrate that she had married of her own free will, and despite a final police report finding no offence. The Supreme Court, acting under Article 32, quashed the proceedings:

"There is no dispute that the petitioner is a major and was at all relevant times a major. Hence she is free to marry anyone she likes or live with anyone she likes."

The Court described the case as "an abuse of the process of the Court as well as of the administrative machinery at the instance of the petitioner's brothers", and directed police and administrative authorities throughout the country to ensure that adult couples in inter-caste or inter-religious relationships "are not harassed by any one nor subjected to threats or acts of violence", with criminal action to be taken against those who threaten or harass them. The propositions carry directly to the matrimonial setting: an adult woman is free to live with anyone she likes; family disapproval — whether of her birth family or her marital family — creates no criminal liability; and prosecuting the man she has chosen, in the teeth of her recorded free will, is an abuse of process. Full judgment.

Shakti Vahini v. Union of India (2018): choice is part of dignity

In Shakti Vahini v. Union of India, (2018) 7 SCC 192, decided in the context of honour crimes against couples who married or cohabited against family wishes, the Supreme Court held:

"The choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice… When two adults marry out of their volition, they choose their path… and it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation."

The Court added that "the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock", and reaffirmed Lata Singh. The State's duty, on this authority, is to protect the couple's liberty — not to lend the machinery of criminal law to enforce a family's control. A kidnapping FIR filed by a husband to undo his wife's choice is family control by another name. Full judgment.

Shafin Jahan v. Asokan K.M. (2018): the Hadiya principle

In Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368 — the Hadiya case — an adult woman's father filed a habeas corpus petition alleging she had been kidnapped and confined, and the Kerala High Court went so far as to annul her marriage. The Supreme Court set that aside:

"The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable."

The Court, quoting the Constitution Bench in Common Cause v. Union of India (2018), located this within a broader autonomy "to decide… on whom to love and whom to partner". The holding establishes that neither parents nor spouse can deploy the courts to force an adult back into a household she has left; and if habeas corpus cannot be misused for that purpose, a kidnapping prosecution cannot be used as a proxy to achieve the same result. Full judgment.

The wider constitutional arc points the same way. Joseph Shine v. Union of India (2018) struck down the offence of adultery under Section 497 IPC as inconsistent with equality and personal liberty — the State cannot criminally regulate consensual adult relationships. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, holds that laws must answer to constitutional morality, not majority social morality. Social convention may disapprove of a wife leaving her matrimonial home; the Constitution protects her right to do so, and the State must side with the Constitution.

Neither habeas corpus nor the police can bring her back

Habeas corpus doctrine under Articles 32 and 226 reinforces the point. Where the person produced before the court is an adult who states that she is not illegally detained but living where she chooses, her will is paramount: the writ is not available to parents or a spouse to compel her return, and even ostensibly protective custody (such as lodging her in a protective home) cannot be forced on an adult who asserts voluntary residence and alleges no exploitation. What habeas corpus law forbids directly, kidnapping law cannot achieve indirectly.

The police position under the BNSS 2023 follows. Section 173 BNSS obliges the police to register information disclosing a cognizable offence, and permits a preliminary inquiry, with the approval of a Deputy Superintendent of Police and within fourteen days, for a defined band of offences, to ascertain whether a prima facie case exists. Whether at registration, inquiry or investigation, the threshold question is the same: is there prima facie material that Mrs. X was taken without her consent? Her own recorded statement — which the police are bound to record accurately, and which can be placed before the Magistrate under Section 183 BNSS (the successor to Section 164 CrPC) — answers it. The alleged victim herself negates the central ingredient. No rational prima facie case survives.

Equally important is what the BNSS does not authorise. It gives the police no power to detain an adult woman who is accused of no offence, no power to compel her to return to her husband, and no power to hand her over to family custody against her will. Police custody is for suspects, not for "victims" who deny being victims. Her statement of free will, once recorded, ends the matter; ignoring or diluting it is not investigation but harassment of the kind Lata Singh directs the police to prevent.

The position is not an Indian idiosyncrasy. As a matter of general principle across common law jurisdictions — the United Kingdom, the United States, Canada and Australia — kidnapping and false-imprisonment offences uniformly require absence of consent, and no such system criminalises a consensual change of residence by an adult, however unwelcome to family. Indian law, statute and Constitution together, sits squarely within that consensus.

Practical Takeaways

• The woman's own statement is the decisive evidence. Ensure it is recorded accurately by the police and, crucially, before the Magistrate under Section 183 BNSS (formerly Section 164 CrPC); her in-person assertion of free will negates the core ingredient of every charge.
• Seek quashing of the FIR by invoking the High Court's inherent powers, on the Lata Singh ratio that prosecution in the teeth of the woman's free will is an abuse of process.
• Plead the constitutional case alongside the statutory one: Articles 14, 19(1)(d), 19(1)(e) and 21, with Puttaswamy, Shafin Jahan and Shakti Vahini as binding authority on autonomy and choice of partner.
• Challenge the prima facie case at every stage — registration, preliminary inquiry, investigation, cognizance — since the absence of non-consent is apparent on the record from the outset.
• If the woman is pressured into police custody or a protective home, habeas corpus lies to vindicate her liberty and voluntary residence.
• Consider seeking action against the complainant for setting the criminal law in motion on false information, though the choice of provision should be settled with care on current BNS numbering.

Key Authorities

1. Lata Singh v. State of U.P., (2006) 5 SCC 475 — an adult woman "is free to marry anyone she likes or live with anyone she likes"; kidnapping case against her chosen partner quashed as an abuse of process. Source
2. Shakti Vahini v. Union of India, (2018) 7 SCC 192 — choice of partner is an inextricable part of dignity; family or community consent is unnecessary; infringement is a constitutional violation. Source
3. Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368 — choice of a partner lies within the exclusive domain of the individual; courts cannot annul an adult's choice at the family's behest. Source
4. Justice K.S. Puttaswamy (Retd) v. Union of India, nine-judge Bench, 24 August 2017 — privacy and decisional autonomy over family, marriage and intimate association are fundamental rights under Article 21. Source
5. Maneka Gandhi v. Union of India, (1978) 1 SCC 248 — Article 21 protects a life of dignity, including free movement and association. Source
6. S. Varadarajan v. State of Madras, AIR 1965 SC 942 — voluntary departure negates "taking"; active inducement by the accused must be shown.
7. State of Haryana v. Raja Ram, AIR 1973 SC 819 — in guardianship kidnapping it is the guardian's consent that matters for minors; for adults, their own consent is decisive.
8. Bharatiya Nyaya Sanhita 2023, Sections 2(3), 137, 138, 142, 143 — the current statutory framework on kidnapping, abduction and trafficking. Source

This analysis reflects the law as at June 2026. It is published for general information and does not constitute legal advice.