The Bombay High Court granted bail to a lesbian couple accused of kidnapping and trafficking a five-year-old girl, motivated by their desire for parenthood. The court found insufficient evidence for trafficking charges but noted their relationship’s complexity and societal challenges. This case emphasizes the legal struggles faced by LGBTQ+ couples seeking to adopt in India.
Mumbai: In a recent ruling, the Bombay High Court granted bail to a lesbian couple accused of trafficking and kidnapping a five-year-old girl, stating that their actions were driven by their desire to become parents. The case, Divya Kailash Singh and Anr v. State of Maharashtra, sheds light on the complexities surrounding LGBTQ+ relationships, parenthood, and the legal boundaries of criminal charges.
Justice Manish Pitale noted that while the couple’s conduct could be considered a prima facie case of kidnapping under Section 363 of the Indian Penal Code (IPC), which is a bailable offence, it did not meet the criteria for trafficking under Section 370. The court took into account the couple’s claim of being in a same-sex relationship for around ten years, during which they had also “married” in a temple. This testimony was corroborated by a key witness, adding credibility to their relationship and desire for a child.
“The aforesaid statement does indicate a prima facie case in favour of the applicants to claim that they 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…”
the Court observed. This desire for parenthood, coupled with the difficulty of legally adopting a child as a same-sex couple in India, formed the basis for their actions, the Court acknowledged.
The incident that led to the couple’s arrest occurred in March 2024 when a five-year-old girl went missing from her home in Ghatkopar, Mumbai. Her parents filed a missing person’s report on March 18. Police investigations revealed that the couple, along with several co-accused, had orchestrated the child’s removal from her parents’ home. By March 22, the child was found in the couple’s custody in suburban Mumbai. It was alleged that the child had been taken for a sum of Rs 9,000.
After being charged with kidnapping under Section 363 and trafficking under Section 370, the couple moved the High Court seeking bail. Their lawyer argued that their actions were motivated solely by the desire to have a child, not to exploit the minor. The prosecution, however, emphasized that the couple’s actions amounted to trafficking, as the child was allegedly taken through inducement and financial transactions.
Despite the allegations, the Bombay High Court found no prima facie evidence of exploitation. The judge observed,
“Although a strong prima facie case is made out against the applicants that they indeed received the minor girl child from the co-accused persons, 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 also took into account the couple’s status as members of the LGBTQ+ community, noting the hardships they had faced in police custody, including the stigma of ridicule both in society and in jail. After spending eight months in custody, and with no clear evidence to support trafficking charges, the Court decided to grant bail to the couple. They were directed to furnish personal bonds of Rs 25,000 each, with one or two sureties of the same amount.
This case underscores the tension between criminal law and the desire for parenthood, particularly within the LGBTQ+ community. It also highlights the legal challenges faced by same-sex couples in India, particularly when it comes to adoption and the legal recognition of their relationships. The ruling marks a significant moment in how the Indian judiciary approaches issues of parenthood, LGBTQ+ rights, and the application of criminal law.
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