IN a recent ruling, the Madras High Court dismissed a petition by the wife of a life convict seeking 21 days’ leave for her husband so the couple could undergo fertility treatment. A child born to a life convict, the court reasoned, would grow up bearing the stigma of the parent’s crime and the psychological harm society inflicts.
The judgment is striking less for what it decides than for what it reveals. A constitutional court has acknowledged, with unusual candour, the lifelong stigma borne by children of imprisoned parents, and then invoked that stigma to deny a child the chance to be born. The asymmetry is stark: the welfare of an imagined child is reason enough to refuse a parent’s claim, while thousands of real children already living with the consequences of incarceration remain at the margins of every child-protection framework.
The Juvenile Justice Act, 2015 defines a child in need of care and protection to include one whose parents are unable to provide adequate care. Incarceration is, by any reasonable reading, such an incapacitation. The law recognises part of this: a child may stay with an imprisoned mother until age six, but must leave after. Children older than six when a parent is arrested are affected just as deeply. Yet child-protection authorities show little sign of tracking these children, assessing their needs, or stepping in.
Children with mothers in prison
This omission is not for want of instruction. Over 20 years ago, in RD Upadhyay vs State of AP, the Supreme Court issued detailed directions: nutritious food, crèches, medical care and education for children inside prison, and a clear policy for those who must leave at six. In 2019, the Ministry of Women and Child Development studied mothers in custody and made 22 recommendations on crèches, in-prison education and structured contact with children outside.
Not one indicator from these efforts appears in any national data system today. Prison Statistics India, 2024, records 1,397 children living inside the country’s prisons, the sum of what the state has chosen to know about them. There is no breakdown by age, no record of how many were born inside, no measure of how long any child has lived there and nothing on what becomes of them at six.
On crèches, the response is haphazard. Across four years of prison statistics data, nine out of 35 states and union territories, namely Andhra Pradesh, Assam, Delhi, Bihar, Gujarat, Karnataka, Maharashtra, Punjab, Tamil Nadu, report some facility for children: a one-off creche run by an NGO, anganwadis, basic education and vaccination.
RTI replies tell a starker story: in Odisha, just two of 20 prisons had crèches, though 49 children lived in the rest; Kerala extends the facility only to convicted mothers, leaving undertrials’ children out; in Assam, infants are housed in sub-jails unfit even for adults. What is missing is not policy but accountability, a binding national baseline, mandatory disaggregated reporting, independent inspection, adequate living conditions.
The executive’s record is no better. The same ministry that runs the child-protection machinery and commissioned the study on women in prisons has admitted, in answer after answer to parliamentary questions, that it maintains no data on children of prisoners or their welfare entitlements. The body built to protect these children does not know how many there are.
Raised in prison till six —what after that?
The law is unambiguous that no child may remain in prison beyond six. Yet RTI responses from Maharashtra, Rajasthan, Bihar and Kerala reveal administrative silence: child welfare committees and district child protection units either held no records of such children or said no case had ever come before them, impossible to reconcile with the women and children living in prisons across these very states. Whether a child’s need is identified at all depends on the awareness of a local committee and individual goodwill.
In Delhi, protection is extended only when both parents, or the sole surviving parent, are imprisoned; the presence of any adult relative outside can render a child ineligible. This is a poor proxy. In one case, a father’s incarceration left his wife and three young children without income. The mother, forced into daily-wage work, left the children unattended for long stretches, the eldest assuming care far beyond her years, schooling and nutrition lost. These are precisely the circumstances child-welfare bodies are meant to assess, but they miss it.
What little support exists is financial, and not available everywhere. Of the 11 states reviewed, only Delhi, Odisha and Kerala have schemes specific to children of incarcerated parents. Even these restrict more than they support. Delhi’s 2014 scheme caps support at two children: Rs 3,500 a month for one, Rs 6,500 for two or more. Kerala’s educational assistance of Rs 300 to Rs 1,000 a month has not changed since 2017 and reaches only children of below-poverty-line prisoners. Maharashtra’s Bal Sangopan Yojana, the most generous at Rs 2,250 a month, demands a thicket of residence proofs, Aadhaar, income and incarceration records, which fails the very households it is meant to reach, where wives and mothers with limited mobility and literacy, are left to manage alone.
Read against this backdrop, the Madras judgment looks less like a defence of an unborn child than a confession: we will not let you bring this child into the world because we are not prepared to face the stigma that will follow her. The stigma is real. But the systems that should absorb it, that should ensure that a child of an incarcerated parent is not abandoned to society’s verdict on her parents, do not exist. The judgment is unwittingly honest. Rather than protecting, the state has simply forgotten them. And instead of demanding accountability, the court has settled on a tidier solution: fewer children to forget.
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