Recognising that “Conjugal visits of the spouse of the prisoners is also the right of the prisoner”, the Madras High Court has allowed a 40-year-old lifer detained at Palayamkottai Central prison to proceed on a leave for two weeks for assisting his wife in infertility treatment.
Quoting from a 1978 Supreme Court judgement which said “Whether inside prison or outside, a person shall not be deprived of his guaranteed freedom save by methods, right, just and fair”, a bench of Justices S Vimala and T Krishnavalli allowed the man to go on leave after his wife, 32, moved a writ of Habeas Corpus requesting leave for his husband as the doctors had assured her that it is possible for her to beget a child with the fertility treatment.
The bench was of the view that “even though the wife is not under incarceration, but a suffering person outside the prison on account of the marital relationship with the prisoner and her legitimate expectation to have a child cannot be declined”.
Allowing his release for two weeks, the court made it clear that if the preliminary investigation by the doctors reveals that there is a possibility of getting a child and further treatment is necessary, then it will consider the extension of time by another two weeks.
The court also called on the government to constitute a committee to consider the possibility of providing conjugal visits and analyse the merits and demerits of permitting conjugal visits and to provide facility for the same to eligible prisoners.
The court quoted Nelson Mandela saying “No one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones”
In the instant case, the Deputy Inspector General of Prisons had declined leave to Siddhiqe Ali, who is serving 18-year jail term.
The woman had last year also moved court requesting that her husband be granted leave for 60 days for the said treatment. The court had then asked the State and the prison authorities to consider her plea and decide the same within a week.
In September, 2017, her request was declined as the probation officer did not recommend the leave and the authorities said his personal life would be in danger.
This forced her to move court again.
The Additional Public Prosecutor appearing for the State opposed her application on the ground that security of the detenu is in danger, which is evident from the report of the Probation Officer.
After perusing the report of the probation officer, the court said, “The main objection raised by the Probation Officer is on the ground that the security of the prisoner himself is in danger and therefore, he cannot be sent on leave. This objection has no logical basis. It is stated in the report that the whereabouts of the family of the deceased is not known. If at all there is any danger and life threat to the prisoner, it could be mainly expected from the family of the deceased and since the whereabouts of the family of the deceased is not known to the Probation Officer, then the issue regarding threat to life of the detenu is very remote and even if there is any life threat, prisoner should be saved by the Police”.
The second objection was that there is no provision under the Jail manual for the grant of leave for infertility treatment.
At this, the court said, Rule 20 of the Tamil Nadu Suspension of Sentence Rules, 1982, prescribes eight grounds, under which, the 7th ground is 'any other extraordinary reason'...In the absence of any other rule, providing for release of prisoner for the purpose of procreation of a child with the available law, it must be interpreted that the request is covered under extraordinary reasons. Even assuming that this reason is not extraordinary, Article 21 of the Constitution of India would very much available for this Court to consider the claim made by the wife”.
The court noted that “The wife / petitioner is aged 32. The prisoner is undergoing imprisonment (life) and he is in custody for a period of 18 years. The fact remains that they are not blessed with a child, may be because the husband is not at all living with his wife. The Doctor has given assurance to the wife that with the help of infertility treatment, it is possible to beget a child”.
Conjugal relationships and reformative approach
“Man is a social animal. He needs a family as well as a society to live in. The man needs both to share his emotions and feelings. Being human beings, prisoners also would like to share their problems with their life partner as well as with the society. Just because, they are termed as prisoners, their right to dignity cannot be deprived,” said Justice Vimala.
Stressing on reformative approach, the bench said, “The psychologists and psychiatrists believe that the frustration, tension, the ill feelings and the heart burnings can be reduced and a human being can be better constructed if they are allowed conjugal relationship even rarely. Therefore, while considering the merits and demerits of allowing conjugal visits or permitting leave for the purpose of artificial insemination, the advantages are more than the disadvantages.
“Conjugal visit leads to strong family bonds and keep the family functional rather than the family becoming dysfuctional due to prolonged isolation and lack of sexual contact,”’ it observed.
Right time for govt. to provide conjugal visits
The bench delved into the reports of innumerable cases of HIV / AIDS in jails because of sexual intercourse in between the same gender.
“This evil is happening because of deprivation of conjugal relationship for a prisoner. Therefore, it is a right time that the Government should constitute a committee to consider the possibility of providing conjugal visit and analyze the merits and demerits of permitting conjugal visits and to provide the facility for conjugal visits to eligible prisoners subject to the precautions / safety measures to be taken,” it opined.
“Conjugal visits of the spouse of the prisoners is also the right of the prisoner. This right is recognized at least in few countries of the world. When the prisons are overcrowded providing place for conjugal visits may be a problem, but the Government has to find out a solution. Today, conjugal visits are called extended family visits (or, alternately, family reunion visits). The official reason for these extended family visits is three-fold: to maintain the relationship between the prisoner and the members of his family, to reduce recidivism, and to motivate or to provide an incentive for the good behaviour”.
The bench took note of the fact that in 2015, Government of India had passed legislation stating that conjugal visits are a right and therefore, it is not a privilege for married inmates. These inmates are also entitled, if they wish, to give their sperm to their spouse for artificial insemination.
The court directed that Ali be permitted to go on temporary leave initially for a period of two weeks, (From January 20) ending February 3.
Till such time, his sentence will remain suspended.