Kerala High Court Allows Parole For Life Convict To Undergo IVF Treatment, Says He Has Every Right To A Decent Life

The Kerala High Court has granted leave to a life convict undergoing incarceration at Central Prison & Correctional Home, Viyyur for undergoing IVF/ICSI treatment. 

The convict's wife had approached the Court seeking parole for her husband who had been undergoing imprisonment for the past 7 years, so that he could complete the treatment procedure to have a child, via IVF/ICSI (In Vitro Fertilization / Intracytoplasmic Sperm Injection) Procedure.

Wondering how the Court could turn a blind eye to such genuine requests merely on technicalities, the Single Judge Bench of Justice P.V. Kunhikrishnan observed,

"...when a wife comes before this Court with a request that she wants a child in the relationship with her husband who is undergoing imprisonment in Central Jail, this Court cannot ignore the same on technicalities. Conviction and sentence in criminal cases is mainly to reform and rehabilitate the offenders. The state and society want to see the convict coming out of jail after rejuvenation as a reformed man/woman who will be part of our society. A person who has undergone a sentence in a criminal case need not be treated as a different person when he comes out. He has every right to lead a decent life just like any other citizen". 

The petitioner averred that it had been the dream of the couple to have a child, and that they had been undergoing treatment under different branches of medicine, but nothing was fruitful until now. The petitioner submitted that they thus started treatment under Allopathy when her husband got ordinary leave from prison. She also presented a letter from the Hospital the couple was undergoing treatment at, to show that her husband’s presence for 3 months was necessary. 

It was added that when the petitioner had approached the State authorities requesting to invoke Section 73 of the Kerala Prisons and Correctional Services (Management) Act, 2010, for the grant of parole to her husband for a period of 3 months for the continuation of treatment, no positive response was obtained from the said authorities in this regard.

The counsel for the petitioner thus submitted that the right of procreation of the couple is their fundamental right, and the petitioner's husband as thus entitled to leave for the purpose of undergoing IVF/ICSI procedure. 

The Public Prosecutor however opposed the plea, and argued that the convict was not eligible for leave at present. 

The Court ascertained the genuineness of the petitioner's request from the certificate issued by the Hospital that was produced by her before the Court. 

As regards the question whether the Court could issue directions to the Director General of Prisons and Correctional Services to grant leave to the petitioner’s husband for undergoing the IVF/ICSI treatment, the Court perused the decisions of the Rajasthan High Court which granted 15 days parole to the life convict on a similar request.

Thus, the Court said petitioner’s husband ought to be granted at least 15 days' leave for continuing the IVF/ICSI procedure.

The Director General of Prisons and Correctional Services was thereby directed to grant leave to the petitioner's husband in accordance with law, within two weeks. The Court however cautioned that the present case ought not to be taken as a precedent in all cases, and that each case would have to be considered on its merits. 

"The genuineness of the claim is important. The convicts cannot make use of this to get out of jail. Each case has to be considered based on the genuineness of the claim," the Court added, while disposing the plea. 

Counsel for the Petitioner: Advocates Ajeesh K. Sasi, P.M. Rafiq, M. Revikrishnan, Sruthy N. Bhat, Sruthy K.K., Nikita J. Mendez, and Rahul Sunil

Counsel for the Respondents: Public Prosecutor Hritwick C.S. 

Citation: 2023 LiveLaw (Ker) 539