Mumbai Court asks 19-yr-old woman to take custody of 5-yr-old brother in jail with mother saying it may affect his development

By LE Desk

Mumbai, June 28, 2021: Detention of a child at a tender age, even if in custody of his mother, would have an adverse effect on his development, a sessions court said while deciding on the custody of a 5-year-old whose parents were convicted for murder.

The court in a recent order sentenced the couple to life after finding them guilty of murdering their sister-in-law following a domestic dispute in 2015. The couple has been imprisoned for five years with their youngest son, living with his mother in Byculla jail since birth. The court ordered the couple’s 19-year-old daughter to be given custody of the 5-year-old boy, the Indian Express reported.

After they were convicted, the court considered the issue of the son’s custody. While the woman sought leniency on grounds that two of her children – now aged 19 and nine – are residing alone with nobody to take their responsibility, she also said her 5-year-old son has been in jail with her. 

“The detention of a child of a tender age even if in the custody of his mother would have forcible adverse effect on physical and mental development of the child. The accused are having another daughter who is a major and another son, aged nine years. Therefore, in my view, the minor child in custody of accused number 2 (mother) needs to be given in custody of his sister who is not only major but taking care of her younger brother with the help of other relatives,” the court said, reported The Indian Express.

According to the prosecution, a domestic dispute over ancestral house had caused rifts between the 50-year-old convict and his brother. Their wives too got involved. On the day of the incident on October 26, 2015, when the victim’s husband was at work, a quarrel took place between the couple and their sister-in-law. The prosecution said while the man poured kerosene over the victim’s body, his wife lit a match and threw it at her. Among the evidence the court considered, was the victim’s dying declaration where she named the couple, the statement of her husband and neighbours who deposed about the regular quarrels between them.

The convicts had relied on the first medical case papers prepared by the hospital where a reference was made to the burn injuries suffered by the victim, being “self-inflicted” and that there were no eyewitnesses. It was further claimed that they were being falsely implicated over the property. The court, however, said there was enough evidence to prove their guilt under charges of murder and common intent of the IPC. When the two were asked to speak on their sentence, they sought leniency on grounds of their children.

“The accused are in custody for past five years. During the said period, the child who is of the same age, is in custody along with his mother in jail. India is a signatory to the United Nations Convention on the Rights of a Child, 1989 and has legislated (it through the) Juvenile Justice Act. The convention… mandates that detention of children should be only a matter of last resort and for the shortest period of time. Even if such a detention is required, the said Article mandates that children should be separated from adults,” Additional Sessions Judge Sanjashree Gharat said.

The Supreme Court in previous orders has held that the jail environment is not congenial for the development of a child. It allows for children to be kept with their mothers in jail till they attain the age of six and thereafter if there is nobody to take care of them, they are sent to a children’s home.