New Delhi: A Delhi court on Wednesday granted bail to a woman who was lodged in the Tihar jail with her 21-month-old son, saying condemning the infant to spend his early childhood in jail would be a violation of his right to healthy development as an individual.

The court was hearing a petition seeking bail to Suman Kumari, who is among those accused of dowry harassment leading to the death of a woman. Kumari was in judicial custody since December 9, 2020 in a case registered on the complaint of the father of the deceased, a woman who was married to Suman’s brother-in-law. The FIR was registered under Section 489A, 304B, and 34 of the Indian Penal Code.

According to LiveLaw, additional sessions judge Vishal Gogne noted that though the gravity of allegations against the accused cannot be discounted and they do “operate as a dissuading consideration in the matter of bail being granted”. However, the court is inclined to view with “greater appreciation and empathy” the ground for bail because of the “often forgotten victims of incarceration”, the children of imprisoned parents.

The judge added:

“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 offenses 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 the trial nor required to be in detention for any reason, such children still languish in jail for terms co-terminus with the period of detention of their mother.”

The case against the accused says that the husband and the in-laws – including Kumari – subjected the deceased woman to repeated demands for dowry, beating her up and not providing her with proper food or other resources. Moreover, LiveLaw reported that the specific allegation against Suman was that she forcibly made the deceased consume medicine which caused the abortion of the woman’s three-month-old fetus.
Kumari’s counsel submitted that her son was also lodged in jail, on account of his mother being in judicial custody. Therefore, bail was sought on the ground that the child should be allowed to come out of the jail environment.

The court’s order observed:

“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 the law [CCL} or a child in need of care and protection [CNCP] within the meaning of the J J [Juvenil Justice] Act, it may be a view too myopic and pedantic to take that the child is not in the Juvenile Justice system.”

The court relied on Article 37 of the United Nations Convention on the Rights of the Child, 1989 – a treaty to which India is a signatory – which mandates that the detention of children should only be a matter of last resort and for the shortest period of time.

The judge added:

“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 said the continued detention of a child of tender age, even if in the custody of their mother, in jail would have a foreseeable adverse influence on his socialization, sensory enrichment, and overall physical and mental development.

The court observed that avenues for his educational enhancement would also “necessarily be restricted” inside the jail. “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 judge said.
The judge concluded that in recognition of the rights of the child and that the system is predicated on the presumption of innocence of the accused, the infant should not be subject to detention without cause.