'Denial To Prisoner To Perform Conjugal Relation For Progeny Would Adversely Affect Rights of His Wife', Rajasthan HC Grants 15 Days Parole To Life Convict

In a significant judgment, the division bench of Rajasthan High Court, Jodhpur observed that denial to the convict-prisoner to perform conjugal relationship with his wife more particularly for the purpose of progeny would adversely affect the rights of his wife. In this regard, the court granted 15 days parole to the life convict. The bench opined that Hindu philosophy also advocates the importance of pitra – rin, i.e. parental debt. Our lives are the consequence of the fact that ancestors have been carrying and forwarding the said pitra rin, it is because of this, life came to us and in order to maintain the continuity of life, we must pay off this debt, added the court. Justice Sandeep Mehta and Farjand Ali, while allowing the petition, observed, "As an upshot of the observations made herein above, we are of the considered view that though there is no express provision in the Rajasthan Prisoners Release On Parole Rules, 2021 for releasing the prisoner on parole on the ground of his wife to have progeny; yet considering the religious philosophies, cultural, sociological and humanitarian aspects, coupled with the fundamental right guaranted by the Constitution of India and while exercising extra ordinary power vested in it, this Court deem it just and proper to allow the instant writ petition." Essentially, the convict prisoner Nand Lal is lodged at the Central Jail, Ajmer Till date, he has undergone imprisonment of around six years out of sentence of life imprisonment awarded to him including remission. His wife, Smt. Rekha, has moved an application addressing to the District Parole Committee, Ajmer averring therein that conduct of his husband had been exceedingly well in the jail premises and he was earlier granted first parole for 20 days, which he availed satisfactorily and surrendered back to the prison on due date. She averred that she has not begotten any issue from their wedlock and thus, for want of progeny, she craves for 15 days emergent parole. As no order has been passed therein till date by the Committee, the convict-prisoner , thus, preferred the instant writ petition through his wife. It was observed by the court that the right of progeny can be performed by conjugal association, the same has an effect of normalizing the convict and also helps to alter the behaviour of the convict prisoner. The court opined that the purpose of parole is to let the convict re-enter into the mainstream of the society peacefully after his release. The wife of the prisoner has been deprived of her right to have progeny whilst she has not committed any offence and is not under any punishment, added the court.Reliance was placed by the court on D. Bhuvan Mohan Patnaik and Others v. State of Andhra Pradesh & Ors [AIR 1974 SC 2092], wherein Apex Court declared that convicts cannot be denied the protection of fundamental rights which they otherwise possess, merely because of their conviction. Further reliance was placed on Jasvir Singh and Another v. State of Punjab [2015 Cri LJ 2282], wherein Apex Court held that the "right to procreation survives during incarceration" and "is traceable and squarely falls within the ambit of Article 21 of our Constitution". It had then directed the Punjab government to constitute a Jail Reforms Committee, to be headed by a former high court judge. Among other things, this committee was to "formulate a scheme for creation of an environment for conjugal and family visits for jail inmates and identify the categories of inmates entitled to such visits, keeping in mind the beneficial nature and reformatory goals of such facilities". Moreover, the division bench also ruled, "In view of the fact that the spouse of the prisoner is innocent and her sexual and emotional needs associated with marital lives are effected and in order to protect the same, the prisoner ought to have been awarded cohabitation period with his spouse. Thus, viewing from any angle, it can safely be concluded that the right or wish to have progeny is available to a prisoner as well subject to the peculiar facts and circumstances of each case. Simultaneously, it is also found apposite to hold that the spouse of the convict-prisoner cannot be deprived of his or her right to get progeny." The court ordered that the convict-petitioner be released on emergent parole for 15 days days from the date of his release provided he furnishes a personal bond in the sum of Rs.50,000/- along with two surety bonds of Rs.25,000/- each to the satisfaction of the Superintendent, Central Jail, Ajmer on usual terms and conditions. Religious & Sociological Aspect of Progeny The court opined that as per Hindu philosophy, Garbhadhan, i.e. attaining the wealth of the womb is the first of the 16 sacraments. The court added that scholars trace Garbhadhana rite to Vedic hymns, such as those in sections 8.35.10 through 8.35.12 of the Rigveda, where...

'Denial To Prisoner To Perform Conjugal Relation For Progeny Would Adversely Affect Rights of His Wife', Rajasthan HC Grants 15 Days Parole To Life Convict

ANIRUDH VIJAY

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