- Introduction- Child of incarcerated parents
- Background of the case
- Why the bail was granted
Childhood is arguably the most vulnerable period in a human's life. They are mostly dependent on others to fulfill their basic requirements and this makes them particularly vulnerable. However, the fact those children are not the ones to decide who their parents will be or who will take care of them including parents who are incarcerated. Parental Incarceration refers to any kind of custodial confinement of a parent by the criminal justice system. A child whose parents are in judicial confinement lives an especially vulnerable life. They are socially unaccepted mostly and also it has a huge impact on the physical and mental health of the child. Children of such parents are broadly divided into two categories- those who can live with their mother in the prison (up to the age of six years) and those that are left behind when they are incarcerated. In a rough estimate, there are around eight lakh children left behind of incarcerated parents present in the country. Around, 1942 children were living with their mothers in prison by the end of 2016. It is a well-established fact that early childhood years are more critical for physical, emotional, social, and cognitive development. Prisons do not offer the physical and social environment that is ideal for a child's development.
On 31st March 2021, the Sessions court of Delhi of Dwarka district granted bail, in the case of, State V. Suman Kumari, Bail Matter no.1132/21, to an accused woman of dowry death and abortion of a three-month-old foetus on the ground of being lodged in Tihar Jail in a custodial study with a 21-month-old child. The court also held that the child's right to healthy development cannot be violated.
Background of the case
In this case, an FIR was filed by the deceased lady’s father who was found hanging by the cloth on 01 December 2020 as discovered by her husband tinku (also an accused). The father of the deceased woman has put allegations on the in-laws' family of the deceased.
He alleged that his daughter, who married the accu8sed tinku on 11 July 2019 was repeatedly subjected to the demand of dowry. The husband Tinku, younger brother Sunil, older brother, deepu, sister-in-law Suman(the appellant in the above-mentioned case), and her father-in-law Dilip Chaudhary repeatedly demanded the deceased for a motorcycle. The complainant was not capable of providing a motorcycle for want of resources in result to which his daughter was subjected to repeated beating by the accused persons. It was also alleged that she was not provided proper food and often kept hungry for the period of four to five days and even forced her to consume non-vegetarian food. In regards to the appellant (Suman Kumari) in the above-mentioned case, it was alleged that she actually intended her sister to marry the accused tinku and thereby forced the deceased to consume medicine to cause abortion of her three-month-old foetus. The FIR was registered under Section 498A, 304B, and 34 of the Indian Penal Code.
The counsel for the accused had humbly prayed before the honorable court that the contents of FIR do not reveal any cause for harassment for dowry, "soon before her death" and the documents that are submitted with the charge sheet do not substantiate the allegations of forcible abortion of the deceased by the accused Suman. It was also further pointed out by the council on behalf of the accused that she has a son of 21 months old who is also staying with her in Tihar Jail on account of her being in judicial custody. The counsel pleads to the honorable to grant bail on the ground of enabling the child to come out of a jail environment and provide a better healthy environment to live in. The accused Suman is in judicial custody since 09 December 2020. The submissions on the matter of bail were heard on her behalf under section 439 of Cr. PC.
Why was she granted bail?
The honorable court heard both the counsels and considering the nature of allegations in the present case against the accused cannot be discounted and this bail in such cases is not granted however in this particular case, the court was more inclined to view with great empathy and appreciation the ground of bail which shines light upon the forgotten victims of incarceration viz the children of imprisoned parents.
A court of law is a forum where many a time, the right to liberty is yield to the rule of law and the person accused of offenses have found their application for bail being declined for various reasons however when such a person is denied and she is a woman, it often operates as a de facto detention of their toddler or infant. Being neither subject of the trial nor required to be in detention for any reason, such a child still languish in jails for terms co-terminus for the period of detention of their mother.
The court also relied upon the United Nations Convention on the Rights of the Child, 1989 and Juvenile Justice Act, 2015. Observing and looking through the sections of both the court said that the primary consideration of the courts taking decisions in all children related cases should be the best interest of the child and help the child to develop to its full potential which is also enunciated in Article 3 of the convention and also in section 3 of the Juvenile Justice Act, 2015. The court observed that the child of the applicant (also the accused) is only 21 months old and he has not been in the world for even two years. Not being a child in conflict of law or a child in need of protection and care under the Juvenile Justice Act, it may be a view too pedantic and myopic to take that the child is not in the juvenile justice system.
The court also posed itself a question that, “Whether for reason alone of not conforming to the description as a CCL or CNCP, the child can be denied the protection of the principles governing the child rights?" to which it said that the answer to this is an unequivocal negation of such a proposition. Being only the son of the accused woman and still suffering the de facto detention, the child must not suffer any rigorous stringent than the child qualifying as a Child in need of protection (CNCP) or a child in conflict with the law (CCL) yet, the child is incarcerated because of the alleged actions of his mother.
The court also observed that the continued detention of a child at such tender age in jail even if he is there with his mother will have an adverse influence on the child as the jails do not provide an ideal environment and it will have a negative effect on the socialization, sensory enrichment and overall mental and physical development of the child. Also, the question of educational enhancement would be restricted in a place like Tihar Jail.
The court also observed that since the trial has not even commenced yet and will take a long time to complete, the barely two-year-old child cannot be condemned to spend his early childhood in a place like jail. Such a cruel fate would violate the child's right to healthy development as an individual.
Therefore, the court held that in the recognition of child’s rights and a system which is predicated on a presumption of innocence of the accused should not subject the child to such detention and the accused (Suman) is granted liberty to face the trial as a free person.
The bail granted in this case to the accused is in fact a release of her little child to freedom.
A child learns about all the etiquettes of human society through his/her environment only. It is very important to provide a little human with a healthy and happy environment though it is quite difficult when the parents are incarcerated. The Honorable Supreme Court, in its judgment in the case of RD Upadhyay V. State of Andhra Pradesh and others, 2006, had tried to provide proper guidelines which should be followed for taking care of the children who are in detention with their mother in jail. The Supreme Court citing the recommendations made by the All India Committee on Jail Reforms has laid down guidelines for care provision for the children in jail with their mother. These guidelines have emphasized the fact that the child should not be treated as under trial or a convict when he is in jail with his/her mother, that the child is also entitled to proper age-appropriate food, medical facilities, shelter, and opportunities for recreation and education. It is also said that the child's physical growth must be monitored regularly along with the provision of vaccination within the prison itself. It also mentions that every prison is required to have a crèche (for children of 0-3 years) and a nursery facility (for children of 3 to 6 years of age), which should preferably be located outside the premises of the prison. Also, to protect the long-term interest of the child, the birth certificate is not supposed to carry as the place of the birth name as a prison but the locality where the prison is located. In the absence of official data in compliance with such guidelines for the children in prison, the reliance is being placed upon the state-specific studies in order to understand the dynamics of such children.
A prison is called prison for a reason and as much as we try we cannot provide an actual and ideal environment to the child in the prison living with his/her mother. So, it is necessary to take special care of such children. It should be made sure that the negative environment of prison does not affect them negatively as much as possible. More emphasis and attention should be paid to the well-being of these children by our government and legal system.
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