Beyond Bars and Bail: The Hidden Victims of Women's Imprisonment

Author: Sakshi Yadav , 4^thYear Law Student, University of Allahabad

The Indian Criminal Justice System is an agency designed to protectvictims and punish the wrongdoers, to maintain peace and harmony in society. The system remains heavily occupied with the procedural machinery of arrests, custody and bail.World Prison Brief, India country profileprisonstudies.orgThisnarrow focus on arrests and bail often overshadows people beyond these processes.Behind the bars and bails lies a victim who’s often hidden and unnoticed by the justice system.

Those hidden victims are the children of prisoners, especially a woman who is arrested, charged, remanded and sometimes years later convicted. On paper, the woman serves her sentence in prison,but in reality, her children and family are pulled into a long, unscripted sentence of their own.They suffer beyond those bars even without being a part of the crime and are crushed like a wheat weevil caught in the grain.

This piece argues that those children and families are “hidden victims”of the criminal justice systemand that any serious conversation on criminal law reform and prison justice has to begin to treat them as such.

The Demography of Women in Prisons

Globally, the population of women prisoners still constitutesa small proportionwhen compared to the overall prison population, roughly 6-7per cent.World Prison Brief, Women in Prison (global, share and totals)My WordPressYet, the number of women prisoners hassurged far faster than the men’s population over the last two decades. More than 730,000 women and girls have been incarcerated worldwide in the recent decade. ICPR, World Female Imprisonment List (latest edition page) Patna High Court.Many of them are in prison for low-level, often poverty-linked offences and a very large share of mothers. The collateral population is much larger.Recent global estimate suggests that around 1.45 million children have mothers in prison and roughly 19,000 children are actually living inside prisons with them.UNICEF, Reimagine Justice Technical Brief 3: Primary caregivers deprived of liberty (PDF)UNICEF

In India, as per the report of the National Crime Records Bureau (NCRB),women make up about 4.1per cent of prisoners, roughly 22-23,000 in recent years.The majority of them are on undertrials. The recent data 2023 suggests that around 74 per cent of the total women prisoners are undertrials, which is the highest over a decade and as of 2021, over 1,600 children were living with about 1,650 mothers in Indian prisons and most of those mothers were undertrial prisoners, not convicts.World Prison Brief, India country profile (female prisoners and share)prisonstudies.org

These figures conceal something very important. Every woman who enters prison is at the centre of an invisible constellation of dependents whose lives reorient around an institution they never chose for themselves or fortheirdependents.

Secondary Victims of Criminal Process

The Criminal Law believes that a victim is a person directly harmed by the offence. The state appears as a neutral party “representing society”, while the accused and, occasionally, the primary victim are the only human figures the law recognises. Victimology challenges this view, asserting that the criminal process also produces secondary victims who are often hidden, unnoticed and deserve recognition. Children of incarcerated women and families of undertrial prisoners fit perfectly in the category of secondary victims.Their emotional, social and economic losses stem directly from the criminal process, including arrest, remand, trial delays and imprisonment, not from the underlying crime. Those secondary victimshave no voice in decisions that determine the shape and length of that harm. Calling them “secondary victims” is not a rhetorical flourish but a precise description of their position in the justice system.

Among those secondary victims, the children of an incarcerated mother experience a profound psychological distress and are often forced into a life marked by instability, stigma and hindered growth with limited opportunity.UNICEF Technical Brief 3 (PDF)UNICEF. In India,children below the age of six are allowed to stay with their mothers inside the prison,which makes the situation of children outside the prison entirely different from that of those living inside. Though both children living inside or outside the prison of an incarcerated mother experience circumstances that an ordinary child in the country never experiences.UChicago JournalsChicago JournalsThey do not experience a normal childhood, nor do they grow up in a healthy environment. They are deprived of everyday facilities, routines and comfort that every other child in a family normally receives.

Those children and families of an incarcerated woman are not only affected by the criminal process, but are structurally exposed to systematic delays and defects,especially because three out of four women are on undertrials, as indicated by the recent NCRB report.Victimology believes that this is not an accidental overspill but a designed feature of system that values case disposal statistics over the lived cost of waiting.Chicago Journals

Legal Gaps and Way Forward:

1. Narrow victim definitions: Victim compensation laws and procedural laws in many jurisdictionsrecognise“victims” as those directly harmed by the offence.The result of which is that harm created by imprisonment, remand and bail practices disappearsinto a conceptual gap, making children and families vanish from records andhave no formal voice in bail, sentencing, parole or transfer decisions.

Way Forward: Courts must include secondary harms in defined cases by expanding procedural recognition and must consider dependent impact in custody, parole and transfer orders.UNGA A/RES/40/34 (Victims Declaration)United Nations Documentation

2.Bail and remand that ignores caregiving: Magistrates are not systematically required to record caregiving status before ordering custody. In practice, arguments that woman is a primary caregiver are treated as pleas for mercy rather than as triggers for a different legal analysis grounded in children’s rights. The result of which is that the economic and emotional interests of children and families disappear from bail and remand orders.

Way Forward: Making caregiving inquiry mandatory at first production and creating a rebuttable presumption for non-custodial measures for primary caregivers in non-violent offences. The court must enforcereviewable limits on undertrial detention where minor childrenareaffected. Bangkok Rules (UNODC PDF)UNODCUNICEF Technical Brief 3 (PDF) section on non custodial alternatives and best interests assessmentUNICEF

3. Prison rules that treat children as appendages:Prison manuals and guidelines often address children in terms of admission procedures, food scales and age limits. They do not treat children living inside the prison as independent right holders entitled to education, play, health care and a healthy environment.NCPCR report (PDF)NCPCRDisciplinary regimes, searchprotocols and visiting arrangements are usually designed around adults and not children inside prisons.

Way Forward: The Prisons in India must adopt child rights standards inside women’s prisons, requiringchild-friendly spaces and trained staff and ensuring affordable child-friendly contact with mothers and mandate periodic oversight by child welfare bodies with power to intervene.Penal Reform International summary of Bangkok Rules child safeguardsPenal Reform International

4. Fragmented welfare responses: Child welfare committees, women and child development departments, legal services authorities and prison departments operate in parallel lanes. There is no single institutional anchor responsible for tracking a child’s journey from the mother’s arrest through her remand, trial, possible conviction and release. That fragmentation in itself is a form of secondary victimisation.

Way Forward: The court must assign a single case lead, hold a multi-agency plan at custody entry for care and schooling continuity and include children in reintegration support on release. Using privacy-minded data to make them visible for services, not stigma will make a significant change.Patna High Court

The Indian criminal justice system is built to punish wrongdoing and protect victims, but its everyday functioning narrows into an obsession with arrest, custody and bail, ignoring a crucial set of people: the children and families of incarcerated women. On paper, the law records a woman’ssentence as her own but in reality, it also pulled her dependents into a parallel punishment marked by stigma, instability, economic shock and prolonged uncertainty.The criminal justice system of India must expand its victim definition to acknowledge harm suffered by secondary victims in a criminal process. Any serious conversation on criminal law reform and prison justice begins here: by making these hidden victims visible, heard and protected, so the system stops multiplying punishments beyond the person it claims to judge.

References:

World Prison Brief, India Country Profile, Institute for Crime & Justice Policy Research (ICPR), University of London.https://www.prisonstudies.org/country/india

World Female Imprisonment List (6th Edition), Institute for Crime & Justice Policy Research (ICPR), University of London, 2022.https://www.prisonstudies.org/news/world-female-imprisonment-list-sixth-edition

UNICEF, Reimagine Justice: Technical Brief 3 — Primary Caregivers Deprived of Liberty, 2023.https://www.unicef.org/media/171566/file/Reimagine%20Justice%20-%20Technical%20Brief%203%20-%20Primary%20Caregivers.pdf.pdf

Penal Reform International, Children of Imprisoned Parents: Key Facts & International Standards, 2022.https://www.penalreform.org/issues/children/what-were-doing/children-incarcerated-parents/

The Guardian, “Why Prison is a Feminist Issue: Jailing Marginalised Women Ruins Lives and Futures”, The Guardian, December 2025.https://www.theguardian.com/global-development/2025/dec/03/prison-feminist-issue-jailing-marginalised-women-ruins-lives-children

Commonwealth Human Rights Initiative (CHRI), Analysis of Prison Statistics India 2021. https://www.indiaspend.com/h-library/chri-psi-2021finaldocx.pdf

National Commission for Protection of Child Rights (NCPCR), Report on Education Status of Children of Women Prisoners in India, 2022.https://www.ncpcr.gov.in/uploads/165650534962bc440598ece_report-on-education-status-of-children-of-women-prisoners-in-india-1133-kb.pdf

N. Sukhramani, “Children of Incarcerated Parents” (2020) 57(3) Indian Pediatrics 199–203.https://indianpediatrics.net/mar2020/mar-199-203.htm

Note - The information contained in this blog is for general information purposes only. We endeavour to keep all the information up to date and try our level best to avoid any misinformation or any kind of objectionable content. If you found any misinformation or objectionable contents in this website please report us at editors.ilw@gmail.com