Recently, the High Court of Karnataka directed the prison authorities to release a convict on parole for 30 days to fulfill wife’s conjugal right to have progeny.
Court grants murder convict 30-day parole over wife’s right to progeny
The court treated it as an extraordinary circumstance and gave liberty to the husband to seek an extension of general parole, which the prison authorities should consider looking at the convict’s conduct while he is out on parole.
About Parole
Parole is a conditional release of a prisoner who has served part of the period for which he was condemned to jail.
- The release is conditional, usually subject to behavior, and requires periodic reporting to the authorities for a set period of time. Parole is considered a reformative process.
- Parole may be denied to a prisoner even when he makes out a sufficient case, if the competent authority is satisfied that releasing the convict would not be in the interest of society.
- In Sunil Fulchand Shah v. Union of India (2000), the Supreme Court said explicitly that parole does not amount to suspension of sentence.
- In the Election Commission of India vs. Mukhtar Ansari (2017) case, the Delhi High Court declared that custody parole cannot be used as a substitute for bail and cannot be extended for long periods of time or for daily visits.
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What are Conjugal Rights?
Conjugal rights refer to the mutual rights and privileges between two individuals arising from the state of being married.
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- These rights include mutual rights of companionship, support, comfort, sexual relations, affection, joint property rights, and similar rights.
- Applicability: The law recognises these conjugal rights in personal laws dealing with marriage, divorce, etc, and in criminal law requiring payment of maintenance and alimony to a spouse.
- Recognition:
- Section 9 of the Hindu Marriage Act recognises one aspect of conjugal rights — the right to consortium and protects it by allowing a spouse to move to court to enforce the right.
- Right of the Consortium: It is a mutual right that is equally available to both husband and wife.
- Either a wife or husband can invoke this right, if one of them is deprived of the benefit of another spouse’s society (means companionship and all the relations related to a spouse through another spouse).
- Similar provisions exist in Muslim personal law and the Divorce Act, 1869, which governs Christian family law.
What are Conjugal Visits?
In the context of prisons, conjugal visits refer to the concept of allowing a prisoner to spend some time in privacy with his spouse within the precincts of a jail.
- Recognition: Prisoner rights are internationally recognised through the United Nations Standard Minimum Rules for the Treatment of Prisoners, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights etc.
- Through such instruments, prisoners are guaranteed the right to life and inherent dignity.
- The right to maintain family relations including conjugal visits are included in these treaties.
- Most prison Acts and Rules across the country accept the importance of maintenance of continuity in family and social relations.
- Need: It is often argued that conjugal visits can have positive impacts in the form of psychological health benefits for prisoners, preservation of marital ties and, reduction in the rates of homosexuality and sexual aggression within prisons.
- It is also argued that conjugal visits are a fundamental right of the spouses of the prisoners.
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Associated Judicial Views
- Sunil Batra vs Delhi Administration, 1979: This case clarified that prisoners retain the right to approach the Court if their fundamental rights are infringed upon, even after conviction.
- This case affirmed the judicial authority under Articles 32 and 226 of the Constitution to address cases where fundamental rights are violated.
- Jasvir Singh vs State of Punjab: The High Court of Punjab and Haryana held that this right to conjugality is available to prisoners under Article 21, subject to restrictions.
- In this case, a couple convicted of murder and on death row made a petition to the court to enforce their right to procreate. The primary question before the law was whether the right to conjugality and procreation is a part of the right to life.
- Case of Meharaj vs State, 2022: The Madras HC, while considering whether conjugal rights form part of the right to life and personal liberty guaranteed by Article 21, observed that there have to be differential standards in enforcing Article 21 for law-abiding and law violators.
- The Court observed that even though conjugal visits could not be held as a fundamental right, the prisoner would still be eligible to avail leave for conjugal visits if there are ‘extraordinary reasons’ such as ‘infertility treatments.’
Rukhmabai & Restitution of Conjugal Rights
Dr. Rukhmabai was an Indian physician and feminist and is best known for being one of the first practicing women doctors in colonial India.
- Case of Dadaji Bhikaji vs Rukhmabai, 1885: The concept of restitution of conjugal rights faced its first legal test in this case.
- Rukhmabai was married to Dadaji Bhikaji at the age of 11. However, she stayed at the house of her widowed mother after her marriage. In 1885, Bhikaji asked for “restitution of conjugal rights”.
- Judgment: Justice said that Rukhmabai was a young woman and was married off in helpless infancy and therefore cannot be forced.
- The Rukhmabai Case continued for 4 years until Dadaji was compensated in 1888, outside of court. The case was instrumental in the drafting of the Age of Consent Act in 1891.
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June 6, 2024
