Baby got bail

Two-month-old Zoya gets dragged into a dowry harassment case filed by her father's first wife. Legal experts, child rights activists react in shock at her having to get anticipatory bail to avoid arrest

In a case straight out of Ripley's Believe It Or Not, the Mumbai Sessions court last Wednesday (June 17, 2009) granted anticipatory bail for what must have been their youngest applicant ever a two-month-old baby: Zoya aka Mehak Shamshuddin Khan. Lucky for her, or Zoya could have ended up behind bars.

Zoya, who has got bail on a surety amount of Rs 10,000, is a member of the Khan family from Kurla who have been accused by Shakila Khan (27) in a dowry harassment case and for a criminal breach of trust. The sessions judge S N Sardesai in his order granted bail for seven of the eight applicants who applied for the anticipatory bail.

Khan's lawyers Anil Bhole and Lata Vhotkar said the police initially thought that the matter would be resolved between both parties amicably. "However, when Shakila submitted a complaint letter against Shamsuddin and his family in which his second wife Reshma's baby was also mentioned, he had to rush for anticipatory bail for all his family members," said Bhole.

The police registered the case on Wednesday evening against Khan and his family members, acting on Shakila's complaint letter submitted earlier.

"Shakila and Shamsuddin divorced two years ago and he has since remarried and had Zoya with his second wife," said Nasim Bano Khan, Shamsuddin's mother. The entire family, apart from Shamsuddin, was summoned to the Nehru Nagar police station on Friday for questioning. "We were at the police station from 1 pm to 10 pm. Who would have looked after my baby while we were being questioned by the policemen? Our baby is so small, so I have to still bring her along every time," said a distraught Reshma.

'It's unheard of. The people who mentioned the baby in the complaint must be crazy!'u00a0
Ram Jethmalani, senior criminal lawyer

'This is hilarious and unheard of.'u00a0
Rohini Salian, ex-chief public prosecutor

'I can't believe my ears, it's bizarre!'
Mohammed Afzal, activist

'It's amazing that such an order could be passed for a baby.'
Girija Vyas, chairperson, National Commission for Women

'I can't believe my ears'

Zoya's case has stirred up a strong response. Former law minister and senior counsel Ram Jethmalani said that it was the most ridiculous thing he had ever heard of. "It's probably unheard of even in any other part of the world where a two-month-old baby has to apply for bail. The people who mentioned the baby in the complaint must be crazy!" Similar sentiments were echoed by former senior counsel Rohini Salian, "This is a hilarious and unheard-of episode," she said.

Others were more cutting. Criminal lawyer Dinesh Tiwari said that apart from being an unprecedented case, it was a failure on the part of the police and the judicial process. "There should have been some verification of the applicant. How can a complaint letter naming a two-month-old baby be blindly considered in this manner?" asked Tiwari. Consumer activist Mohammed Afzal said the case highlighted the need for proper judicial guidelines. "I can't believe my ears, it's absolutely bizarre," he said.

Others chalked it up to the lack of awareness. "It's really a laughing matter, but it highlights the ignorance that exists amongst the police and judicial force. It's amazing that such an order could be passed for a baby," said Dr Girija Vyas, chairperson, National Commission for Women.

"The commission will look into this particular case to give us insights into the issues of child jurisprudence, which we are currently examining," said Dr Shanta Sinha, chairperson, National Commission for Protection of Child Rights (NCPCR).

Sociologist Nandini Sardesai said that the move was probably an attempt on the victim's part to get her case noticed.

"To begin with, it's strange that dowry is an issue in a Muslim family, but it reflects the pernicious carryover of a Hindu custom to other communities for their own benefit. Cases of dowry harassment often go unnoticed and this inclusion of the baby was probably to gain some attention and to sensationalise her case.

As for the police, it's no surprise that they often don't know the legalities since they're either apathetic or ignorant."

The case so far
Police have filed a case against Shamshuddin Khan (divorced husband of Shakila), his second wife, daughter, mother, brother, two sisters and one neighbour for dowry harassment (section 498), criminal breach of trust (section 406) and acts done by several persons in furtherance of common intention (section 34). Shamsuddin's bail application was rejected and he was arrested by the Nehru Nagar police station on Saturday.

Children faultless until seven
"The child is presumed to be innocent until the age of seven and it's presumed that until then the child does not understand the difference between good or bad, crime or no crime and there is no Mensrea (intention to commit an offence is absent). Thus the child cannot be punished nor can any case be registered against it. Once the child is seven or above, he is a juvenile and can be tried under the Juvenile Offenders Act by the juvenile courts. In this case since the baby in question is only two months, there is no need for seeking anticipatory bail, nor for the court to grant such bail," explains ex-mayor of Mumbai and advocate Nirmala Samant Prabhavalkar.

For nearly nine hours, Zoya was in her mother's arms while police officials made inquires on Friday. "It was embarrassing to feed my baby in front of the police and while other visitors moved around us. While my statement was being recorded, Zoya continuously cried. That irritated the policemen, but they didn't understand how hard it was for me to take care of my two-month-baby and answer their questions," said Reshma.

When Prakash Kale, senior police inspector of Nehru Nagar station, was asked why the baby was dragged into the matter, he rubbished the claim, saying, "No complaint has been filed against the baby, but since her name was mentioned by the complainant (Shakila) in her letter, the entire family applied for anticipatory bail."