'Undertook An Illegal Approach To Satisfy Their Desire Of Having A Child': Bombay HC

The Bombay High Court has granted bail to a lesbian couple accused of trafficking and kidnapping a five-year-old girl, observing that they “undertook an illegal approach to satisfy their desire of having a child”. 

The court also noted that the couple’s conduct can prima facie meet the criteria for kidnapping, but not for trafficking. Also, members of the LGBTQ+ community are ridiculed in the society and particularly in the confines of jail, it added. 

On March 18, this year, a five-year-old girl went missing from her house in Ghatkopar. Police probe revealed that the couple, along with other co-accused, planned to kidnap the child. They allegedly paid Rs9,000 to a co-accused. The couple was arrested for charges of kidnapping under Section 363 of the IPC and trafficking under Section 370. They approached the HC seeking bail.

Their advocate Harshad Sathe submitted that their actions were motivated by their desire to have a child, not to harm the minor. State’s advocate Sagar R. Agarkar argued that the couple's actions amounted to trafficking. It was emphasised that the child was taken from her parents by inducement and was part of a financial transaction.

The court took note of the statement of a witness, nephew of one of the accused, that they were living-in as a couple for nearly ten years. They had “married” in a temple. 

The court said this indicated that the applicants are in a same sex relationship. “It is specifically stated that they were desirous of having a child, which was biologically impossible. In the present state of affairs, they would also be unable to adopt a minor child…,” Justice Manish Pitale said on November 19. 

The judge said this showed that the couple undertook an illegal approach to satisfy their desire of having a child by conniving with co-accused persons to take away the minor girl child from her parents. “This may show the ingredients of the offence under Section 363 (kidnapping) of the IPC, which is bailable,” the judge added. 

The court, however, said that prima facie there is no evidence of exploitation, a requirement for trafficking charges. “.... 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 added. 

It underscored the hardships faced by the members of the members of the LGBTQ+ community in society and more particularly in jails. “Such persons are unfortunately subjected to ridicule in the society and particularly in the confines of jail,” the court underlined.

Considering that the couple had already spent eight months in custody and that there was no evidence to support the charge of trafficking, the Court granted them bail on furnishing personal bonds of Rs25,000.