19/07/2026
"Crime accused lactating mother and her Infant": What Does Honorable Supreme Court Say?
Author: Advocate Dinesh Chand Sagar, Former Special DGP, IPS
(Decorated with the Police Medal for Gallantry(PMG), its First Bar, and other National & State Honors)
Indian jurisprudence envisages that the sword of law should fall only upon the neck of the wrongdoer. However, due to an insensitive administrative system, whenever a warrant for judicial custody is handed to the lactating mother of a six-month-old Dudhmuha (infant), the State inadvertently shuts the iron gates behind that innocent newborn as well. That innocent child enters the prison cell not because he or she broke any law, but because separating the infant from the primary source of life and nutrition would violate the natural laws of existence.
This is where a profound constitutional contradiction arises within our democratic system. That six-month-old infant is a free citizen of India, holding an independent fundamental right to life, dignity, and security under Article 21 of the Constitution. Despite this, the child is subjected to an "Invisible Trial" and the punishment of a "caged childhood" for a crime with which the infant has absolutely nothing to do.
The Legal Shield: Section 480 of the Bharatiya Nagarik Suraksha Sanhita (BNSS)
The legislature recognized this tragedy while drafting the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the old Code of Criminal Procedure (CrPC). Without abandoning the merits of the old system, the legislative intent to protect the weak and the innocent has been made sharper in the new code.
Although Section 480(1) of the BNSS lists serious and non-bailable offenses where bail is generally restricted, its First Proviso grants courts a powerful and compassionate human shield. This proviso explicitly declares that:
"If the accused is a child, a woman, or sick and infirm, the court may exercise its full discretion to release her on bail."
Judicial Principles of the Supreme Court on "Invisible Custody"
When the police detain an accused mother, the innocent Dudhmuha child practically enters "Invisible Custody," despite not being legally arrested. This is a silent, undocumented imprisonment that finds no mention in state records, yet the suffering inflicted on the child is entirely real.
The Honorable Supreme Court has taken this anomaly very seriously in landmark rulings:
R.D. Upadhyay v. State of Andhra Pradesh (2007): The Court clearly established that a child forced to stay in jail with the mother is not a prisoner in the eyes of the law. The infant is merely an "innocent victim of circumstances" and cannot be given the invisible punishment of the mother's crime.
In Re: Inhuman Conditions in 1382 Prisons (2016) 3 SCC 700: The apex court re-emphasized that regardless of what jail manuals and rules state, such a child practically remains under the State's "informal and invisible custody." The Court directed the State not to treat the child as mere "baggage accompanying the mother," but to acknowledge its legal and parental responsibility (Parens Patriae) toward the infant.
No law book contains a provision to keep an innocent newborn in custody. Therefore, sending a lactating mother to jail and pushing the infant into this invisible detention is a direct violation of the civil liberty guaranteed under Article 21.
When the scales of justice balance a serious crime investigation on one side and the life of a six-month-old innocent on the other, legal principles cannot be applied mechanically or rigidly. Unless the accused woman poses an irreparable security threat to society, the social and developmental cost of wasting an infant's formative months behind bars far outweighs the necessity of pre-trial custody.
Further, Section 43(1) of the BNSS restrains the police from bypassing procedural decency; it mandates that a woman can only be arrested by a female police officer, and such an arrest is strictly prohibited after sunset and before sunrise without the prior permission of a Magistrate.
The Law of the Land: The Epoch-Making Mandate of R.D. Upadhyay
In extraordinary and rarest of cases—where denying the mother's bail becomes inevitable due to reasons like national security—the historic judgment of the Honorable Supreme Court stands as a shield against administrative whim or red-tape. In R.D. Upadhyay v. State of Andhra Pradesh & Ors. (AIR 2006 SC 1946), the apex court established a strict and mandatory policy framework for all prisons in the country:
Co-residence: To prevent a Dudhmuha child from being forcefully separated from the mother's breast, the child is permitted to stay with the mother in jail up to the age of six years.
No Prisoner Status: The Supreme Court explicitly directed that such a child must never be recorded as an undertrial or a convict, ensuring the child's innocence is not tarnished by social stigma in the future.
Health & Nutrition: The State bears the absolute duty to arrange for the child's complete health, a specialized diet approved by the National Institute of Nutrition, full immunization, and regular check-ups by a pediatrician within the jail.
Identity Protection: To free the child from a lifelong social stigma, the Court gave a revolutionary directive: If a child is born in prison, the birth certificate must strictly avoid mentioning the jail as the place of birth. Instead, a generic address of the local neighborhood must be recorded.
Developmental Spaces: To ensure the child's social and mental growth, the operation of creches and nursery schools outside the main gates of the prison is mandatory, allowing those innocent eyes to experience open air and the free sky every day.
Global Standards and the Call for Justice
This Indian jurisprudence is not limited to domestic borders; it aligns perfectly with international human rights standards. Rule 22 of the United Nations Bangkok Rules (Rules for the Treatment of Women Prisoners) and Article 3 of the UN Convention on the Rights of the Child (UNCRC) similarly mandate that the "Best Interests of the Child" must be the primary consideration in all legal actions by the State.
Drawing from my long career in police service and legal practice, I firmly believe that the State must not lose its human empathy while displaying its might in the fight against crime. By branding this phenomenon as an "invisible trial," the courts have held up a mirror to the executive.
Can a six-month-old Dudhmuha infant go to jail with the mother? Yes, our administrative systems permit this to protect the biological and natural bond between a lactating mother and her infant. However, the broader philosophy of Indian law, its glorious traditions, and the very soul of our Constitution dictate that the child should never have to.
Before signing a custody file sending a mother to prison, the magistracy must mandatorily record how the rights of the innocent infant sleeping in the cradle will be protected. The Lady of Justice may be blindfolded, but she cannot remain blind to an innocent, smiling infant in a cradle. The law must ensure at all costs that the State's punitive sword falls only upon the guilty, and that the temple of justice does not turn into a prison for an innocent child.
🇮🇳🙏जय हिंद।
