Conjugal Rights Of Prisoners & Spouses: PIL In Delhi HC Seeks Inmates Be Allowed Conjugal Visits

Conjugal visits in prison are private meetings between a male or a female inmate with their spouse or partner, during which the couple may share intimacy or engage in whatever legal activity they desire.

In 2015, the Punjab and Haryana High Court held that the right to procreation survives incarceration and falls within the ambit of Article 21 of our Constitution read with the Universal Declaration of Human Rights.

In a recent order, the Madras High Court had read down prison rules to hold that interactions between a prisoner and spouse should not be monitored.

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 and it also cuts down criminal behaviour inside jails.

On Thursday, advocate and activist Amit Sahni moved the Delhi High Court praying that inmates in Delhi prisons be allowed conjugal visits, which is their fundamental as well as a human right.

The PIL seeks setting aside of Rule 608 of Delhi Prison Rule, 2018 which provides that interview of a prisoner with her or his spouse and family will take place in the presence of a Prison Officer.

"In Delhi prisons, inmates suffer insulation from their families as their contact with the outside world remains limited to phones, letters and meetings – colloquially called 'Mulakat' which is hardly private and can be called off by the prison officials at any moment," says Sahni.

Conversations Between A Prisoner And Spouse Should Be Unmonitored; Madras HC Reads Down Prison Rules [Read Judgment]

Conjugal visits can cut down sex crimes, HIV in prisons

To drive home his point, Sahni says most of the prisoners in Delhi jails fall under sexually active age group i.e. 21-50 years but are denied conjugal rights which is one of the reasons for increasing sex crimes, homosexuality, violence and spread of HIV in jails.

As on February 28, 2019, the 16 jails in Delhi Prisons had a population of 15733 with 15163 male and 570 female inmates. The figure includes 3105 convicts, 12136 undertrials, 13 detenues besides others. Of the entire prison population, 7921 are in the age group of 21 to 30 years, 5809 in the age group of 30 to 50 and 101 in the age group of 50 to 65 years. As per terms of imprisonment, 1361 convicts are serving life term while 756 are serving imprisonment ranging from five to ten years.

Of these, only the convicts have a chance at availing parole or furlough which can allow them time with their families.

In January, 2010, while hearing a public interest litigation on treatment facilities for HIV positive inmates, the Bombay High Court had directed the Maharashtra government to examine the possibility of allowing jail inmates to engage sexually with their wives in privacy within the jail premises as a preventive step instead of spending crores of Rupees to curb AIDS menace in prisons.

It is to be noted that the Punjab and Haryana High Court in 'Jasvir Singh & Anr Vs State of Punjab' had held that "the right to procreation survives incarceration. Such a right is traceable and squarely falls within the ambit of Article 21 of our Constitution read with the Universal Declaration of Human Rights"

It had directed the State to constitute the Jail Reforms Committee comprising a former Judge of the High Court, a Social Scientist, an Expert in Jail Reformation and Prison Management to formulate a scheme for creating an environment for conjugal and family visits for a certain categories of jail inmates keeping in mind the beneficial nature and reformatory goals of such facilities.

Conjugal right of spouse of prisoner

Sahni also argues that denial of conjugal rights is a violation of fundamental rights of not just the inmates but also of their spouses who suffer without any wrong.

The Madras High Court had in Meharaj vs State & Ors, held that "Conjugal visits of the spouse of the prisoners is also the right of the prisoner…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".

Sahni also cites various examples from international jurisprudence where conjugal visits were allowed as early as in 1955.

Some Western and non-Western countries, among which are Denmark, Brazil, Philippines, Kenya, Israel, and five states in the United States (California, Mississippi, New Mexico, New York, and Washington), offer conjugal visitation programs within their prisons.

Mexico even allows the same-sex conjugal visit.