Every Pregnant Woman Deserves Dignity, Giving Birth In Custody Traumatic For Both Mother & Child: Delhi High Court

Observing that every pregnant female deserves dignity during motherhood, the Delhi High Court has granted three months interim bail to a pregnant undertrial prisoner who was expecting her delivery in jail.

Justice Anoop Kumar Mendiratta also added that pregnancy of a woman is a special circumstance which needs to be appreciated as giving birth to a child while in custody, would not only be a trauma to the mother but also create an everlasting adverse impact on the child, whenever questioned about his birth.

"Every pregnant female deserves the dignity enshrined under Article 21 of the Constitution of India during motherhood. The Court is expected to take note of interest of a child, who is not expected to be exposed to the prisons, until and unless there is a grave danger in releasing the petitioner on bail," the Court said.

The Court was dealing with a plea filed by a woman accused in an FIR registered under sec. 363, 367, 368, 326,307, 506, 34 and 120B of Indian Penal Code seeking interim bail of six months.

The FIR was registered on the statement of an injured victim who had performed marriage with another victim against her parents' consent. However, it was alleged that family members of the complainant's wife abducted the victim and his wife and after brutally beating him up, his private part was amputated with an axe and he received stab injuries.

Further, it was alleged that the complainant was thrown in a drain from where he was rescued by his brother and was admitted in AIIMS Trauma Centre.

The State opposed the plea on the ground that pregnancy of a female undertrial prisoner itself is not a ground on the basis of which an accused involved in a heinous offence, can be enlarged on bail, where there is a high security risk to the lives and safety of the victim.

As per the medical report received from the Superintendent of Jail, the Court was apprised that the delivery facilities were not available in Jail Dispensary and that the petitioner was being referred to Deen Dayal Upadhyay Hospital for delivery.

The Court was of the view that even the proviso to sec. 437(1) of Cr.P.C. provides that the condition of not releasing a person on bail charged with an offence punishable with death or imprisonment for life shall not be applicable, if such person is under the age of sixteen years or is a woman or sick or infirm subject to such conditions as may be imposed.

"It may also be appropriate to notice that even Rule 1459 of Delhi Prison Rules 2018 provides that as far as possible (provided the prisoner has a suitable option) arrangements for temporary release (or suspension of sentence in the case of a casual offender) will be made to enable a prisoner to deliver child in a hospital outside the prison. Only when there is high security risk in the case of any particular woman prisoner, the facility to deliver child outside the prison shall be denied," the Court said.

Accordingly, the Court granted three months interim bail to the petitioner.

Case Title: KAJAL v. STATE (NCT OF DELHI)

Citation: 2022 LiveLaw (Del) 790

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