Image Courtesy:timesofindia.indiatimes.com

A Delhi court has granted bail to a woman accused of causing miscarriage and dowry death of her sister-in-law keeping in mind the rights of her young child. The Additional Session Judge (Dwarka Courts), Vishal Gogne observed that since trial would take time to complete, keeping the child incarcerated with the accused “would be a violation of his right to healthy development as an individual”.

The accused Suman Kumari who has been in judicial custody since December 2020 filed for regular bail under section 439 of CrPC. She is accused in a case of dowry death of her sister-in-law, and also causing miscarriage as it is alleged that she had forcibly made the deceased consume a medicine to cause abortion of a three-month-old foetus. The chargesheet has been filed but charges have not been framed.

The counsel for the accused submitted that documents filed with the chargesheet do not substantiate the allegations of forcible abortion of the foetus of the deceased by the accused. He also pointed out that the accused has a son aged 21 months who is also with her at Central Jail, Tihar on account of her being in judicial custody.

The prosecutor opposed the bail plea and submitted that specific allegations of a demand for a motorcycle, beatings inflicted upon the deceased and forcible abortion had been made by the father of the deceased against the accused. While agreeing that the child of the applicant/accused is quite young in age, the prosecutor submitted that he had not been separated from his mother and was in a safe environment in her company.

The court, at the outset observed that the gravity of the allegations cannot be discounted and does operate as a dissuading consideration in the matter of bail being granted to the present accused. However, the court was “inclined to view with greater appreciation and empathy the ground for bail which shines light upon the often forgotten victims of incarceration viz the children of imprisoned parents.”

The court held thus,

"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 coterminous with the period of detention of their mother."

The court also pointed out that India is a signatory to the United Nations Convention on the Rights of the Child, 1989 wherein Article 37 mandates that detention of children should be only a matter of last resort and for the shortest period of time and even if such detention is required, children should be separated from adults. The court observed that 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 conflict with law or a child in need of care and protection within the meaning of the Juvenile Justice Act.

The court also observed that the trial would take time to complete and the child 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 court said.

The court thus granted bail to the accused solely “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.” The court said that the bail of the accused is in fact release of her child to freedom.

The complete order may be read here:

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