"Such A Fate Would Be Violation Of Child's Right To Healthy Development As An Individual": Delhi Court Grants Bail To Mother Lodged In Jail With Her 21 Months Old Son

A Delhi Court on Wednesday granted bail to a woman, accused of dowry death and causing abortion of a three month old foetus, on the account of her being lodged in the Tihar Jail with her 21 months old son in view of her judicial custody.

Additional Sessions Judge Vishal Gogne granted bail to Suman Kumari after observing that in view of the "greater appreciation and empathy" as a ground of bail which shines light on the "often forgotten victims of incarceration" viz the children of imprisoned parents.

"A court of law is a forum where the right to liberty has to often yield to the rule of law and persons accused of the commission of offences may find their applications for grant of bail declined for various reasons. Denial of bail to such persons, especially women does, however, often operate as de facto detention of their infant/toddler wards. Being neither the subject of trial nor required to be in detention for any reason, such children still languish in jail for terms coterminus with the period of detention of their mother." the Court observed at the outset.

Suman Kumari was under the judicial custody since 9th December 2020 in a case registered on the complaint of father of the deceased, a lady who was married to Suman's brother in law. The FIR was registered under sec. 489A, 304B and 34 of IPC.

According to the case of the complainant father, it was alleged that the husband and in laws including Suman of his deceased daughter subjected her to repeated demands for dowry and allegedly did not provide her with proper food and other resources. Moreover, specific allegations against Suman were that she forcibly made the deceased consume a medicine causing abortion of her three months old foetus.

During the course of hearing, it was submitted by counsel appearing on behalf of Suman that she was lodged in the Central jail, Tihar, with her 21 months old son on account of her being in the judicial custody. Therefore, bail was sought on the ground of enabling the child to come out of the jail environment.

The Court observed thus:

"The child of the applicant/accused is 21 months old. He has not yet seen two years in this world. Not being a child in conflict with law or a child in need of care and protection within the meaning of the J J Act, it may be a view too myopic and pedantic to take that the child is not in the Juvenile Justice system. "

While observing so, the Court relied on Art. 37 of the United Nations Convention on the Rights of the Child, 1989 which mandates that detention of children should be only a matter of last resort and for the shortest period of time. Moreover, the Court also went ahead to observe that under sec. 3 of the Juvenile Justice (Care and Protection of Children) Act, 2015, mandates that a in the Juvenile Justice system should be restored to the same socio economic status and cultural status that he was in before coming under the purview of the Act.

"The court would pose to itself whether for reason alone of not conforming to the above descriptions as a CCL or CNCP, the child can be denied the protection of the principles governing the child rights regime viz the UN Convention on the rights of the child and the Juvenile Justice Act. The answer is an unequivocal negation of such a proposition. Being only the son of an accused and yet suffering the de facto detention, the child must not suffer rigorous any more stringent than a child who would qualify as a CCL or a CNCP. Yet, the child finds himself incarcerated for the alleged actions of his mother." the Court observed.

Furthermore, the Court also observed that the continued detention of a child of tender age, even if in the custody of mother in jail would have foreseeable adverse influence on his socialisation, sensory enrichment and over all physical and mental development.

The Court observed that "The options for pre¬school and other educational enhancement would necessarily be restricted inside the Central Jail, Tihar. Since the trial has not even commenced and is likely to take a length of time to complete, the son of the accused, barely two years in age, cannot be condemned to spending his early childhood in jail. Such a fate would be a violation of his right to healthy development as an individual."

The bail therefore granted bail to Suman on furnishing of a bond of Rs. 30,000 after observing that "Thus, in recognition of the rights of the child and observing that a system which is predicated on the presumption of innocence of the accused should not subject the child of such an accused to detention without cause, the court finds it fit that the applicant/accused is granted liberty to face trial as a free person. Bail to the applicant/accused mother in the present facts is infact a release of her little child to freedom."

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