Bombay HC grants bail to lesbian couple booked in child kidnapping case

MUMBAI: The Bombay high court on Tuesday granted bail to a same-sex couple accused of kidnapping and trafficking a five-year-old girl, stating there was no evidence to support the trafficking charges. The court observed that while their actions may constitute kidnapping, which is a bailable offence, they appear to have been driven by the couple’s deep-seated desire to have a child, albeit through illegal means.

The case stems from an incident on March 18 this year, when a five-year-old girl went missing from her home in Ghatkopar. The police’s investigation revealed that the couple, allegedly aided by others, paid ₹9,000 (to whom) to orchestrate the abduction. They were subsequently arrested under sections 363 (kidnapping) and 370 (trafficking) of the Indian Penal Code.

The couple’s counsel, advocate Harshad Sathe, argued that the couple’s intent was not to harm the child but to fulfil their yearning for parenthood. However, the prosecution, represented by advocate Sagar R Agarkar, contended that their actions amounted to trafficking, as the child was taken from her parents through inducement and a financial transaction (did the parents willingly sell their child? If so, can it be called abduction?).

Justice Manish Pitale, in his November 19 order, noted the couple’s long-standing relationship, including their “marriage” (who called it marriage?) in a temple and cohabitation spanning nearly a decade. He acknowledged that their desire for a child stemmed from their inability to have one biologically and the legal barriers that same-sex couples face in adopting children.

“This indicates that the applicants resorted to an illegal approach to satisfy their desire for a child, which prima facie fulfils the criteria for kidnapping under Section 363, a bailable offence,” Justice Pitale said.

However, he pointed out the lack of evidence of sexual exploitation—a key requirement for trafficking charges under section 370. “There does not appear to be material on record to show that the minor girl child was indeed sexually exploited in the process,” he observed.

The court also highlighted the systemic discrimination faced by LGBTQ+ individuals, particularly within the prison system. “Members of this community are unfortunately subjected to ridicule in society, and this prejudice is often amplified in the confines of jail,” Justice Pitale remarked.

Considering that the couple had already spent eight months in custody and the absence of evidence to support trafficking charges, the court granted them bail. The case underscores both the persistent challenges faced by LGBTQ+ individuals in navigating societal and legal frameworks and the complex intersections of law, ethics, and human desire.