Supreme Court Refuses To Interfere With Order Granting Parole To Life Convict To Beget A Child

The Supreme Court on Monday(August 1) refused to interfere with the Rajasthan High Court's order of granting parole to a life convict to perform conjugal relationship with his wife to beget a child, as the parole period of 15 days was already over.

However, the Court observed that it has "reservations" on some observations made by the High Court's order passed on April 5, 2022.

The bench of Justices Sanjiv Khanna and Bela M Trivedi although refused to interfere with the SLP preferred by the State but clarified that the State could raise all the pleas before the High Court.

It also asked that the plea of any third person who applies for parole/furlough to perform conjugal relationship would be examined on merits.

"While we have reservations on some of the observations made in the impugned order, we are not inclined to interfere with the direction which would have been implemented. However, it is clarified that it will be open to the petitioners to raise all pleas and contentions before the High Court. In case any third person applies for parole/furlough giving the same/similar reason, such plea and contention would be examined on merits. Recording the aforesaid, the petition for special leave to appeal is dismissed. Pending application(s), if any, shall stand disposed of," the bench said in its order.

On April 5, 2022, a 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. 

High Court's observation on religious philosophy

The High Court had also referred to Hindu philosophy while granting relief.

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 repeated prayers for progeny and prosperity are solemnized.

The court noted that in Judaism, Christianity, and some other Abrahamic religions, the cultural mandate is the divine injunction found in Genesis 1:28, in which God, after having created the world and all in it, ascribes to humankind the tasks of filling, subduing, and ruling over the earth. The cultural mandate, which was given to Adam and Eve, includes the sentence "Be fruitful and multiply and fill the Earth.", added the court.

Further, the court stated that the preservation of lineage is also greatly emphasized by the Islamic Shariah and the Cairo declaration of human rights in Islam also supported the protection of lineage in Islam. All the articles of CDHRI covered the five basic human rights mentioned in Maqasid I Shariah, added the court. The court also noted that the first main objective of Maqasid I Shariah is the completion of human's necessity; in which protection of progeny (nasl) is the foremost purpose.

It was also stated by the court that when a convict is suffering to live in prison, he/she is deprived to perform three of the four purusharths, i.e. Dharma, Artha and Moksha are to be performed alone, however, in order to perform/exercise/pursue the fourth Purushartha, i. e. Kama, the convict is dependent on his/her spouse in case he/she is married.

In addition to this, the court observed,

"At the same time, the innocent spouse of the convict is also deprived to pursue the same. In a case where the innocent spouse is a woman and she desires to become a mother, the responsibility of the State is more important as for a married woman, completion of womanhood requires giving birth to a child. Her womanhood gets magnified on her becoming a mother, her image gets glorified and becomes more respectful in the family as well in the society. She should not be deprived to live in a condition wherein she has to suffer living without her husband and then without having any children from her husband for no fault of her."

State's challenge

According to the state government, the order was in violation of the Rajasthan Prisoners Release on Parole Rules, 2021 (2021 rules).

It was also stated in the plea that murder convict had not even followed procedure while making the application for parole, which in the first instance had to go to the jail superintendent. However, she straightaway approached the District Collector and that the High Court despite the procedural lapses, in contravention of the Rajasthan Prisoners Release on Parole Rules, 2021, allowed the writ petition and ordered the respondent's release on parole for fifteen days.

"Also, grant of parole in emergent cases, is restricted to the grounds mentioned in Section 11. When the law has been clearly laid down, the High Court could not have arbitrarily added a ground based on extraneous considerations," the appeal stated.

Case Title: State of Rajasthan vs Nand Lal

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