The Bombay High Court on Tuesday 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. [Divya Kailash Singh and Anr v. State of Maharashtra]
Justice Manish Pitale held that while the couple’s conduct prima facie met the criteria for kidnapping under Section 363 of the Indian Penal Code (IPC), a bailable offence, it did not satisfy the ingredients for trafficking under Section 370.
The Court observed that a statement from a key witness supported the couple’s claim that they had been living together for about ten years and had even "married" in a temple.
"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...
...In this backdrop, at worst, it can be said that the applicants 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 of the IPC, which is bailable," the Court observed.
The incident came to light in March 2024, when a five-year-old girl went missing from her parents’ home in Ghatkopar, Mumbai. Her parents filed a missing person’s report on March 18.
The police investigation revealed that the couple, along with several co-accused, had orchestrated the child’s removal from her parents' home. On March 22, the child was found in the custody of the couple in a suburban area of Mumbai. It was alleged that the co-accused had taken the child and transferred her to the couple for a sum of ₹9,000.
After being charged with kidnapping under Section 363 of the IPC and trafficking under Section 370, the couple moved the High Court for bail.
The couple's lawyer argued that their actions were motivated by their desire to have a child, not to harm the minor. The prosecution, however, 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.
However, the Court found no prima facie evidence of exploitation, a requirement for trafficking charges.
"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 judge observed.
The Court also considered the couple's status as members of the LGBTQ+ community and noted the hardships they face in police custody. Justice Pitale remarked that the applicants had already suffered the stigma of being subjected to ridicule both in society and in jail.
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 decided to grant them bail. The applicants were directed to furnish personal bonds of ₹25,000 each with one or two sureties of the same amount.
Advocate Harshad Sathe along with Advocates Manvi Sharma and Shubham G, instructed by Advocate Saurabh Butala, appeared for the couple.
Additional Public Prosecutor Sagar R Agarkar appeared for the state
[Read Order]