By: Kranti Vibhute Date: 2009-06-21 Place:Mumbai
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.
Mother Reshma Khan of two-month-old baby Zoya said the family was
called for an inquiry to Nehru Nagar police station. She sat there
with the baby in her arms for 10 hours without reprieve, from 1 pm
till 10 pm. She even had to feed her baby in front of the police and
visitors
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.
Shakila lodged a complaint against Zoya's father and her divorced
spouse Shamsuddin Khan at the Nehru Nagar police station and named the
entire family in her letter, including Zoya, her biological mother
(Shamsuddin's second wife), a neighbour and four relatives. Shakila
accused them of harassing and demanding dowry of Rs one lakh and
torturing her, the police said.
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!'
Ram Jethmalani, senior criminal lawyer
'This is hilarious and unheard of.'
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."
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