No Sexual or Physical Abuse: Bombay High Court Approves Bail for Lesbian Couple Charged with Kidnapping and Trafficking a 5-Year-Old Girl.
The Bombay High Court granted bail to a lesbian couple accused of kidnapping and trafficking a five-year-old girl, stating that their actions seemed motivated by a wish to become parents. The case began when the girl went missing from her home. After her parents reported her missing, police found that the couple, along with others, had arranged for the child to be taken. The girl was discovered with the couple in a suburban area of Mumbai. Investigations showed that the child was handed over to them for ₹9,000 by an accomplice. The couple faced charges of kidnapping under Section 363 and trafficking under Section 370 of the IPC and later sought bail from the High Court.
Justice Manish Pitale’s Bench determined that while their actions could be seen as kidnapping under Section 363 of the Indian Penal Code (IPC), they did not fulfill the requirements for trafficking under Section 370. The Court noted a key witness’s statement supported the couple’s claim of being in a ten-year relationship and having a “marriage” in a temple. This evidence indicated their same-sex relationship and their desire for a child, which was not biologically possible for them. The Court also mentioned that adoption was not an option for the couple. It concluded that although their method of seeking a child was illegal, it seemed driven by a genuine desire to become parents rather than criminal intent. The Court remarked that, at most, the couple’s actions reflected an illegal attempt to fulfill their wish for a child by collaborating with others to take the girl from her parents, which could indicate the offense under Section 363 of the IPC, making it bailable.
Harshad Sathe represented the petitioner, while Sagar R. Agarkar served as the Additional Public Prosecutor for the Respondent. The defense argued that their actions stemmed from a genuine wish to have a child, not from any intent to harm the girl. In contrast, the prosecution claimed that their actions constituted trafficking, highlighting that the child was taken through inducement and financial means. However, the Court stated, “While there is a strong initial case against the applicants for receiving the minor girl from co-accused individuals, there is no evidence to suggest that the minor girl was sexually exploited.”
The Court also considered the couple’s LGBTQ+ status, acknowledging the social and institutional difficulties they faced, particularly during their police detention. It noted that they had already faced mockery and stigma in society and prison. After spending eight months in custody and with no evidence supporting the trafficking allegations, the Court granted them bail. They were required to submit 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
