No Sexual Or Physical Exploitation: Bombay HC Grants Bail To Lesbian Couple Accused Of Kidnapping & Trafficking 5-Year-Old Girl
The Bombay High Court granted bail to a lesbian couple accused of kidnapping and trafficking a five-year-old girl, noting that their actions appeared to stem from their desire to become parents.
The incident in question unfolded when a five-year-old girl went missing from her parents' home. After a missing person's report was filed, the police investigation revealed that the couple, along with others, had arranged for the child to be taken from her parents' home. The child was found in the custody of the couple in a suburban area of Mumbai. The investigation revealed that the child had been transferred to the couple for ₹9,000 by the co-accused.
The couple was charged with kidnapping under Section 363 and trafficking under Section 370 of the IPC. They then applied for bail in the High Court.
A Bench of Justice Manish Pitale ruled that while their conduct could potentially be classified as kidnapping under Section 363 of the Indian Penal Code (IPC), it did not meet the criteria for trafficking under Section 370 of the IPC.
The Court acknowledged that a statement from a key witness corroborated the couple’s claim that they had been in a relationship for about ten years and had even “married” in a temple. This testimony supported the assertion that they were in a same-sex relationship and desired to have a child, which, in their case, was biologically impossible. The Court further noted that adoption was also not a viable option for the couple.
The Court reasoned that while the couple's approach to having a child was illegal, it appeared to have been driven by their longing to become parents, rather than by criminal intent. The Court said, “In this backdrop, at worst, it can be said that the applicants undertook an illegal approach to satisfy their desire of having a child by conniving with co-accused persons to take away the minor gild child from her parents. This may show the ingredients of the offence under Section 363 of the IPC, which is bailable.”
Advocate Harshad Sathe appeared for the petitioner and Additional Public Prosecutor Sagar R. Agarkar appeared for the Respondent.
Their lawyer argued that their actions were motivated by their desire to have a child and not by any intention to harm the girl. The prosecution, on the other hand, contended that their actions amounted to trafficking, emphasizing that the child had been taken by inducement and as part of a financial transaction.
However, the Court found "Although a strong prima facie case is made out against the applicants that they indeed received the minor girl child from the co-accused persons, there does not appear to be material on record to show that the minor girl child was indeed sexually exploited in the process,"
The Court also took into account the couple’s status as members of the LGBTQ+ community, recognizing the social and institutional challenges they faced, especially during their time in police custody. The Court noted that the couple had already endured ridicule and stigma in both society and prison.
Given that the couple had already spent eight months in custody and that no evidence supported the trafficking charge, the Court granted them bail. The couple was directed to provide personal bonds of ₹25,000 each, along with one or two sureties of the same amount.
Cause Title: Divya Kailash Singh & Anr. v. The State of Maharashtra, [2024:BHC-AS:44211]
Appearance:
Petitioner: Advocate Harshad Sathe, along with Advocates Manvi Sharma and Shubham G, Saurabh Butala.
Respondent: Additional Public Prosecutor Sagar R. Agarkar
