"Right Of Convict To Have Conjugal Relations Isn't Absolute": Punjab & Haryana High Court Agrees With Madras HC's Recent Ruling

In a significant ruling, the Punjab and Haryana High Court has observed that the right of a convict to have conjugal relations is not an absolute one and is subject to 'reasonable restrictions', 'social order', 'security concerns', 'good behavior' in the jail, etc.

Significantly, the Bench of Justice Augustine George Masih and Justice Jasjit Singh Bedi expressed its agreement with Madras High Court's recent ruling wherein it was ruled that the right of a convict to have conjugal relations is not an absolute right and what is available to a convict is his right to obtain infertility treatment.

Further, the Court had also added that a convicted person cannot enjoy the same rights those available to a common man because there must be a distinction drawn between a law-abiding citizen and a law-violating prisoner.

Click here to read more about the case and court's observations: Prisoner Has No Fundamental Right To Conjugal Relationship As A Course; May Seek For 'Specific Purpose' Like Infertility Treatment: Madras HC

The case in brief

The Court was hearing a plea filed by one Neha, seeking grant of parole to her murder-convict husband, sentenced to life imprisonment, to enable them to have conjugal relations for procreation with an alternative prayer to allow them to procreate/maintain conjugal relation within the jail premises.

The petitioner got married to the convicted husband on April 17, 2016, and on August 10, 2016, her husband was arrested and had been in custody ever since.

Thereafter, she moved an application for parole for the consummation of the matrimonial relationship on November 19, 2020, and the same was rejected by Jail Superintendent, District Jail, Gurugram on the ground that he is a hardcore criminal category and therefore, was not entitled to grant of parole in terms of The Haryana Good Conduct Prisoners (Temporary Release) Amendment Act, 2013, r/w The Haryana Good Conduct Prisoners (Temporary Release) Amended Rules, 2015.

Challenging the same, the petitioner challenged the aforementioned order by way of filing the instant petition.

State's arguments 

The State of Haryana submitted that in terms of the judgment of the Court in "Jasvir Singh & Anr. Vs. State of Punjab & others, 2015 (1) RCR (Criminal) 509", the right available for the conjugal visit of a married and eligible convict was subject to those conditions as prescribed under the Statute.

The State also argued that in terms of the directions issued in Jasvir Singh's case, the State of Haryana had constituted a Jail Reforms Committee on September 27, 2021, and thus, the husband of the petitioner could avail parole for the purpose sought in terms of Para 93 subject to the conditions of 2013 Act or he could await the instructions to be issued by the Jail Reforms Committee and could thereafter apply, if so eligible.

Court's order

At the outset, the Court noted that the State of Haryana has constituted the Jail Reforms Committee and as such, the Committee would make its recommendation within one year after visiting the major jail premises.

Further, analyzing the facts and observations of the High Court in the case of Jasvir Singh case, the Court said that HC has already made it clear that it is apparent that the right of a convict to have conjugal relations is subject to all those conditions as prescribed under the Statute.

Against this backdrop, the Court observed and directed thus:

"...the right of convict to avail parole would be governed by Para 93 of the Judgment in Jasvir Singh's case (supra) uptil the time the Jail Reforms Committee does not formulate a scheme for creation of an environment for conjugal and family visit for jail inmates in the light of the instructions dated 28.09.2021."

The Court also added that the Jail Reforms Committee may consider the judgment of the Madras High Court while making its recommendations.

The Court has also directed Ankur Mittal, Additional Advocate General, Haryana to provide the copy of the judgment of the Hon'ble Madras High Court to the Jail Reforms Committee as also to the Additional Chief Secretary to Government of Haryana, Jails Department, Haryana Civil Secretariat, Chandigarh for necessary action.

Case title - Neha v. State of Haryana & another
Case citation: 2022 LiveLaw (PH) 21

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