• Legis Scriptor

Children Living with Mother in Jail

Authored By- Mahee Chouksey

Keywords- Provision, Penitentiary, Women Prisoners, Legal Assistance, Incarcerate


The influence of their mother's imprisonment on the children encompasses every aspect of their existence and not just the relationship with their mother. It is similar to bereavement, but with further stigma and frequently less assistance, from the new career teachers and others. Not surprisingly it always leads the children into contentious and anti-social behaviour. The impact on the children will, of course, vary according to their age and the encircling family and social response.


Nobody is a born criminal, situations and circumstances drag them to do the crime. Women convicts are always the sole or dominant pursuit for little children. So detention of the mother cannot be supposed in isolation. Commonly in many countries, babies and young children are taken into prison with their mothers. It may be preferable to segregate them. However, this creates many impediments for such children to secure their own creative space for development-physical, mental, and emotional including their interaction with children of their own age. Where extraordinary mother and baby units are equipped, these are often extremely uncommon in numbers and so may not be accessible in practice. As per the Indian Jail Manual age of the child is up to six years, can stay with her mother in prison, but several other country practices in this area vary extensively (from a few months to 6 years even within Europe), this has problematic issues pertaining to the mother's capacity and fittingness, the duration of her verdict, and the nature of her crime, in accumulation to the necessities of the child. Yet this circumstance evolves aggravating when a child completes his/her six years age, and times for detachment appear it has an extremely antagonistic concussion on both mother and child. Attending prison can be a daunting and frustrating event for adults. Touring an extended distance joining a grim building, being scanned by an unusual adult to expend a quick time with a mother that one cannot even touch may be unnerving in the extreme to a child. This may make the child's custodian less tending to embrace. Children of Imprisoned women are at a considerably massive risk of nurturing criminal behaviour in maturity that other children comparable background.

According To Indian Jail Manual

Women prisoners shall be permitted to be with their children in jail till they attain the age of six years. Children in jail shall be provided with such apparel as the administrator may be specified by the inscribed order.

Supervision of Children - In every penitentiary, trained nurse shall be assigned to keep and look after such children in Jail as are old enough to be detached from their mothers.

Complications faced by Children

1. No facility of any private or special unit for mothers and their children- Although, immunization facilities are accessible, it is not normal and abundant for child development. In any jail there are is not any recreational facilities for children except Lucknow jail, where Balwadi and crèche and playthings are available for children.

2. Inadequate education facilities in jail for children- In Lucknow jail, preschool is accessible for them not only these but children also go school out of jail with proper school accessories like lunchbox and school uniform.

3. In many jails there is not any pediatric doctor visit in jail- Although a hospital is accessible in Lucknow jail it is not sufficient for children's elementary health care.

4. Inadequate access to nutrition- Offsprings get milk, ghee, eggs, and seasonal fruits but this percentage is different in every jail for child advancement there are not adequate.

5. Lack of funds- Handful funds should especially be dedicated to the welfare of women prisoner in the outset of the year and utilized for the intention, just if young children are not residing in jail and funds are not for the financial year. That funds may be put aside as an emergency fund. That may be utilized for the welfare of children of women prisoners at the necessities of the hour.

In, R.D. Upadhyay v. the State of A.P.[1], the Supreme Court has emphasised the supporting of fundamental rights and formulated protocols contemplating pregnancy, child-birth, antenatal and post-natal care, and childcare in prisons. The Apex court has clearly declared the following, particularly with regard to childcare:

1. Women prisoners shall be permitted to keep their children with them in jail until they achieve the age of six years.

2. At the end of the sixth year, the child shall be handed over to an adequate surrogate as per the desires of the female prisoner.

3. Expenditures of food, clothing, medical care, and shelter shall be carried by the respective state.

4. Proper crèche and a nursery should be assembled to the prison for women where the children of women prisoners will be looked after. The prison administrations shall willingly run the said crèche and nursery outside the prison premises.

5. A dietary plate instructed by the National Institute of Nutrition, Council of Medical Research, Hyderabad, furnishes guidelines for a proportional diet for newborns and children up to the age of six.

6. In this case, the state legal assistance authorities were instructed to periodically inspect and see that the directions heeding mothers and children in jail were being pursued. The court also authorized that the central government, state governments, and union territories file affidavits with admiration to the judgment's enactment, within four months. Courts, nevertheless, do not have autonomous machinery to crosscheck execution. Only the time will tell whether this judgment has had any true impact on the condition of the children of women prisoners who are in jail with their mothers.

7. Prison manual and/or other applicable rules, regulations, instructions, etc. existed to be modified within three months of these directives in order to acknowledge the above recommendations.

Human and fundamental rights for children with their mother in prison

Some rights safeguard the individual and permit them the freedom to live the life which they have been granted by God. These rights are accessible to all and also venture to protect children of incarcerated parents.

1. Article 45- Provision for prematurely childhood maintenance and education to children

It enacts that the State shall endeavour to provide early childhood care and education for all children until they obtain the age of six years. Unfortunately, the goal embedded in this Article persists to prevail very far from the ground realities. In 1993, the tribunal read this article into Article 21 and in consequence renovated into a Fundamental Right.

This Article also enacts that a State must "endeavour to furnish, within a period of ten years from the conception of this Constitution, for unrestricted and mandatory education for all children until they turn fourteen”. Still, there is very slight formative action or apparent instruction on how children can still retain such essential human right.

2. Article 14- Right to equality

In this Article the Constitution guarantees proportional opportunities for the betterment of all children during the period of growth should be our intention, for this would serve our larger objective of curtailing unevenness and social justice.


Although all discharged prisoners face problems surrounding their efforts to reintegrate into society, for women these may be merged by the need to mediate with children who may have changed(as well as a grown-up) during their dearth even a short prison term may lead to the mother relinquishing the rented accommodation and housing in which she had been living, and it is extensive for a mother to be powerless to recoup custody of her children if she does not have anywhere to live or a proper place to settle.

Several countries have a mother and baby units, with outstanding facilities to endorse the mother and the child's development in other babies live in the prison without their existence being registered or overseen by the state and/or without any specific provision prevailing for them.

In the penitentiary, facilities to guarantee to safeguards, health, and development of a child are always lacking or the incapable whilst a number of countries have 'open' prison for mothers with young children, in maximum cases children in prison are unqualified to interact regularly with the outside community and other family members.

Minorities living in prison almost always live in more restrictive and vulnerable circumstances than they did outside, even they are not the actual prisoners and should not be treated as such in particular. They come in lesser contact with the society outside prison (especially with family members) and the steady scarce opportunities and openings for development can be hurting to children, both during and often their time in prison. It is consequently crucial when agreeing on whether or not a child should live in prison to weigh up the inclined benefits of conserving the mother-child relationship against the pessimistic effects a prison domain.

[1] W.P. (Civil) No. 559 Of 1994