The Correct Interpretation of Section 361: Kidnapping from Lawful Guardianship

Section 361 of the Malaysian Penal Code states that kidnapping occurs when someone takes or entices a minor (under 14 for males, under 16 for females) or a person of unsound mind without the consent of “such guardian.”

 1. “Such Guardian” is Singular:

 • The law refers to a single lawful guardian at a given moment, not multiple guardians collectively.

 • It does not specify whether another lawful guardian can legally take the child WITHOUT CONSENT.

 • The phrase “such guardian” means the specific guardian responsible for the child at that time—not a general reference to all legal guardians.

 2. Lack of Consent = Kidnapping:

 • If one lawful guardian (e.g., the mother) has the child in their care, and another lawful guardian (e.g., the father) takes the child without her consent, that still qualifies as kidnapping.

 • The law is silent on whether an estranged parent with shared custody can remove the child without the present guardian’s agreement.

 3. Real-World Consequences:

 • If a father takes the child without the mother’s consent and disappears, even if he has shared custody, this is effectively parental abduction, which should be recognized as kidnapping. 

 • The trauma inflicted—on both the parent left behind and the child taken—is severe and should be treated as a criminal act, not merely a civil matter.

 4. Clarifying Legal Application:

 • The law does not explicitly allow a child to be taken by another lawful guardian without consent. - this will no longer be ‘Civil’ by any standards.

 • To avoid criminal liability, any transfer of custody should be done with prior agreement and clear consent. - this will keep it ‘civil’, and under the jurisdiction of family law.

 • Family law (a civil matter) addresses custody disputes, but parental abduction is a criminal issue and should be recognized as such under Section 361.

Section 361 MUST apply, especially when prolonged and zero  communication are factors, as it constitutes kidnapping under the law and should not be dismissed as a civil family matter. 

Parental Alienation is a common practice at epidemic levels globally. Many countries do not criminalize it, and it is a huge burden on mental health issues in the future for all we go through such trauma .

People weaponize children all the time to get back at their ex-partners. Commit suicide as result of broken families at a rate of 1.5 to 3.5 times more than women of the over 1 million suicides annual Global suicides. 

we do not need a new law because kidnapping covers it by using the terms, “Such Lawful Guardian”(non-plural), and “without consent”.

Any, lawful guardian should know where their child is at all times, because the child is not an age to protect themselves. Especially against someone else they know with ill intent.