Pregnant women, new mothers deserve bail despite severity of offence, says HC
Saurabh Malik
Chandigarh, June 12
In a significant judgment liable to change the way mothers and even pregnant women are lodged in prisons, the Punjab and Haryana High Court has ruled that they deserve temporary bail or sentence suspension extending up to a year after delivery even when the offences are “highly grave and accusations very severe”.
Justice Anoop Chitkara ruled postponing a mother’s custody for a child’s sake could not be said to be draconian affecting society. The ruling came as the Bench allowed six-month interim bail to a murder accused, who gave birth to a child on April 10.
Prison compromises ability to form bonds
A prison is not only a shackle in terms of physical duress but also greatly compromises a child’s ability to form bonds and engage in proper social interactions, which are often limited to only women co-prisoners. Justice Anoop Chitkara
Justice Chitkara ruled “baby blues” and post-partum depression often affected new mothers. Confinement only added to the trauma. Besides, denying bail to a “jachcha” during the puerperal period would not only perpetrate injustice to the new mother, but result in a graver injustice to the neonate.
The judgment is also significant as Rule 64 of the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), adopted by the General Assembly on December 21, 2010, says custodial sentences for pregnant women and ones with dependent children would be considered when the offence is serious, violent or the woman represents a continuing danger.
Justice Chitkara added that even if prison facilities were considered top notch and excellent nutritious food was readily available, it was still not sufficient to draw a conclusion of the best possible environment. It might take care of nutritional needs for the child’s physical development and help a mother’s recovery, but it had no impact on their social and emotional health. The child needlessly ended up in confinement, restricting interactions with the world, leaving him with a hampered ability to absorb and learn.
Justice Chitkara asserted that every newborn was an equal stakeholder on the planet endowed with the same inherent rights of “aazadi” including dignity, freedom, and security. Society suffered from disparities when proactive steps were not taken for the child’s welfare during infancy when the “moulding was at its greatest”. These children as individuals often faced difficulties and even social stigma. Considering this, the urgency of incarceration could not be justified, especially where the certainty of accusation was still to be proven.
Justice Chitkara further asserted that women driven by their innate maternal instincts had shouldered the burden of perpetuating the human race by bearing long gestation periods and ensured the posterity’s survival through unwavering commitment to child-rearing. The responsibilities to raise the children, and in some cases, the dependency, could even be lifelong.
Justice Chitkara added: “The courts must restore women’s due and sacrosanct freedom in motherhood pro tanto (to that extent). No new mother and no pregnant woman should be subjected to restraints of any kinds, be it during pre-natal period, labour and delivery, or the postpartum period. It is time to take a contrarian call to the maxim partus sequitur ventrem”. The term defined the legal status of children born there; the doctrine mandated that children of slave mothers would inherit the legal status of their mothers.
1,650 women prisoners
Justice Chitkara also took into consideration the NCRB’s report of December 31, 2021, which said there were 1,650 women prisoners with 1,867 children lodged along with them
