A Prisoner Has No Fundamental Right To Conjugal Relationship However Exceptional Circumstances Like Infertility Treatment May Give Rise To Such Rights: Meharaj Vs The State Rep By Its Secretary & Ors

DATE OF JUDGMENT:

20th January 2022

JUDGES:

Justice Munishwar Nath Bhandari

Justice Pushpaa Satyanarayana

PARTIES:

Appellant/Petitioner: Meharaj

Respondent: State of Tamil Nadu

SUBJECT

In the present case, an habeas corpus petition under Article 226 was filed by the petitioner seeking direction to grant leave for six weeks to her husband, a convicted prisoner, to take the infertility treatment.

OVERVIEW

1. The facts of the matter are such that the petitioner’s husband was sentenced to life imprisonment on commission of offenses under Sections 148, 302, 201, and 120B of the Indian Penal Code (IPC). After the bail was granted, the petitioner’s husband took part in the Coimbatore Bomb Blast case, apart from multiple other cases in Tamil Nadu and Kerala. Therefore, he was deemed ineligible to remission under the 1982 Rules and the provisions of the Code of Criminal Procedure, 1973.
2. The petition in the present case was preferred by one Mehraj, wife of the detenu Siddhiqe Ali, for a leave of 30 days to practice conjugal rights as the petitioner and her husband (detenu) were not having children and therefore advised to seek infertility treatment.
3. Earlier, a leave of two weeks was granted by the order of the division bench of the same Court on 11.1.2018 for the aforementioned reason. Liberty was also given to the petitioner to seek an extension of the period by another two weeks. By the end of those two weeks, the petitioner instead of seeking an extension, filed a fresh petition praying for a grant of leave for another 30 days.
4. However, this time the Division Bench noted that Tamil Nadu Suspension of Sentence Rules, 1982 (hereinafter referred to as "the 1982 Rules") lacked sufficient provisions to grant an emergency leave or ordinary leave for a convict to have a conjugal relationship with the spouse. Therefore, the Court referred the issue to the larger bench.

LEGAL PROVISIONS

Constitution of India

Article 21- Right to life.

Tamil Nadu Suspension of Sentence Rules, 1982

Rule 20(vii)- Grounds for the grant of ordinary leave. - (vii) any other extraordinary reasons.

ISSUES

Whether the denial of conjugal rights to a convict would amount to a denial of rights guaranteed under Article 21 of the Constitution of India?

JUDGMENT

1. Explaining the principle of conjugal rights of a prisoner, the Court referred to the judgment in the case of Jasvir Singh v. State of Punjab, 2015 Cri LJ 2282 where the High Court of Haryana and Punjab held conjugal rights of the prisoner to be a fundamental right guaranteed under Article 21 of the Constitution of India. A similar stance was also taken by the High Court of Patna in the case of Rajeeta Patel v. State of Bihar and others, 2020 (4) PLJR 669.
2. While explaining the meaning of the term 'conjugal rights’ the Court held that it means the privilege to the husband and wife arising from the marriage, including mutual rights of companionship.
3. The Court also noted that the 1982 rules have been framed while keeping the spectrum of Article 21 in the mind as provisions of the 1982 Rules provide for the grant of emergency leave to the accused not only to attend to death or serious illness of father, mother, wife, husband, son, daughter, etc. but even for wedding of the prisoner’s relatives. The 1982 rules also provide for an ordinary leave for the prisoner to make arrangements for the livelihood of his family and settlement of life after release, apart from grant of leave to make arrangements for the admission of the children in school or college.
4. The Court further noted that the 1982 rules failed to mention any provision for conjugal rights in light of the facts that the prisoner may ask for the leave invariably on that ground and, that too, time and again. However, the Court noted that Rule 20(vii) of the 1982 Rules provides for the grant of leave for any other extraordinary reasons, which can be of the nature referred in this case, i.e., for undergoing infertility treatment. The word “extraordinary” must be read in conjunction with the word “reasons” to construe that the reasons should be beyond usual, regular and common.
5. The Court concluded that prayer of the petitioner to undergo infertility treatment in a circumstance when the convict has no child from the wedlock forms an extraordinary reason for grant of leave and the same falls under Rule 20(vii) of the 1982 Rules. However, the same can’t be invoked if the convict has a child or children from wedlock, as it won’t fall under the meaning of extraordinary circumstances. “A convict cannot enjoy all the liberties as are available to a common person, otherwise there would be no difference between a law-abiding citizen and a law-violating prisoner” noted by the Court. Hence, an emergency leave or an ordinary leave cannot be claimed as a right for having a conjugal relationship without an exceptional reason.
6. The Court, therefore, directed the registry to place the matter before the roster bench for disposal.

CONCLUSION

Conjugal Rights are a matter of great importance, especially in a deeply religious country like India where marriage is treated as one of the most sacred bonds. This casts a great duty on the Court to interpret conjugal rights in light of the societal conditions. The High Court in the present has struck a balance between such rights and rule of law.

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