"Every Expecting Female Deserves Dignity During Motherhood; Pregnant Woman Deserves Bail Not Jail": HP HC Grants Anticipatory Bail In NDPS Case

Observing that heavens will not fall if the incarceration is postponed, the Himachal Pradesh High Court on Saturday held that every expecting female deserves dignity during motherhood and that in such conditions, a pregnant woman deserves bail and not jail.

Granting anticipatory bail to a pregnant woman accused under NDPS Act, a single judge bench comprising of Justice Anoop Chitkara observed that there should be no restraint to a woman throughout the period of her pregnancy as restraints and confined spaces might cause mental stress to a pregnant woman. 

"What is so urgent to execute the sentence? Heavens will not fall if incarceration is postponed. There should be no restraints throughout pregnancy, no restraints during labor and delivery, and no restraints at least for a year after giving birth. Every expecting female deserves dignity during motherhood." The Court said.

Furthermore, the Court observed thus:

"Pregnant women need bail, not jail! Courts must restore the due and sacrosanct freedom of women in motherhood pro tanto. Even when the offences are highly grave and accusations very severe, they still deserve temporary bail or suspension of sentence, extending to a year after delivery. Further, those who stand convicted and their appeals closed also deserve similar relief, in whatever camouflage it may come."

"Taking birth in jail could possibly be such a trauma to the child that social hatred might follow, potentially creating an everlasting impact on the mind whenever questioned about birth. It is high time to take a contrarian call to the maxim Partus sequitur ventrem."

The Court was dealing with an anticipatory bail plea filed by the Pregnant woman apprehending arrest in an NDPS case in which her husband and mother in law were arrested by the police. The allegations against the petitioner was that she conspired with her husband in substance trade after commercial quantities were recovered from husband's house.

Denying the allegations and Involvement in the matter, it was the case of the woman that she had been living in Punjab since August last year along with her two minor children.

Analyzing the facts of the case, the Court observed thus:

"The petitioner was married to the accused around a decade ago and has no criminal background. However, her husband has a checkered criminal history. Thus, being a wife, she might be aware of her husband's illegal activities. But that is not enough! What was her role? How much say she had in the home? Whether she could have intervened and persuaded him to stop illegal activities? Whether her intervention would have helped? The answers to all these factors will depend upon the quality of evidence adduced during the trial and the firmness of cross-examination at her end. The fact is that she has no criminal history of her own."

Relying upon international instruments such as United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) and Convention on the Elimination of All Forms of Discrimination against Women, the Court analysed the physical and mental health risk conditions and needs of a pregnant woman.

Reliance was also placed on report of Ministry of Women and Child Development Government of India on Women in Prisons which stated that from the end of 2015, there were 4,19,623 persons in jail in India, of which, 17,834 (about 4.3%) are women and out of these, 11,916 (66.8%) were undertrial prisoners. 

"Good and nutritious food in prisons may give good physical health but cannot substitute good mental health. Restrains and confined spaces might cause mental stress to a pregnant woman. Giving birth in jail might cause her tremendous trauma." The Court observed at the outset.

In view of the aforesaid observations, the Court granted anticipatory bail to the petitioner.

Title: Monika v. State of H.P.

Click Here To Read Judgment