Convicts do not have fundamental right to conjugal relationship though such right is available for specific purposes like fertility treatment: Madras HC

Convicts do not have fundamental right to conjugal relationship though such right is available for specific purposes like fertility treatment: Madras HC

The Madras High Court ruled that Convicts do not have fundamental right to conjugal relationship though such right is available for specific purposes like fertility treatment.

The petition was preferred by Meharaj, wife of the detenu Siddhiqe Ali @ Sulthan, to grant leave to the convict for 30 days to have conjugal relationship, as they were not having child from the wedlock and the petitioner was advised to have infertility treatment along with her husband.

The Division Bench in its order gave general directions to the State to favourably consider the request of the prisoners to have conjugal relationship with their spouse. The prayer made in the habeas corpus petition was accepted granting temporary leave to the convict for a period of two weeks.

For the said period, the sentence was suspended and, accordingly, respondents therein were directed to release the husband of the petitioner subject to certain conditions.

The three judge bench of Acting Chief Justice Munishwar Nath Bhandari, Justice Pushpa Sathyanarayana and Justice P.D.Audikesavalu stated that a conjugal right in common parlance is for maintaining marital status by husband and wife. 

The court said that the leave for a specific purpose which may be for undergoing infertility treatment, as such, may not be considered for having conjugal relationship in common parlance, but for extraordinary reason, thus it can safely hold that the Tamil Nadu Suspension of Sentence Rules, 1982 Rules itself protect the rights of the prisoner guaranteed under Article 21 of the Constitution of India to the extent it is required.   

The court added that the denial of conjugal relationship of the convict for specific purpose may amount to denial of the fundamental right guaranteed under Article 21 of the Constitution of India. The specific purpose may be infertility treatment or some similar reason, but it should not be construed to be a fundamental right for having conjugal relationship as a course.

This would make a difference between the law abider and violator in regard to rights guaranteed under Article 21 of the Constitution of India.

The court stated that the emergency leave or ordinary leave would be for the purpose given under the 1982 Rules and if any extraordinary reason exists, then the State need to consider the aforesaid as and when a request is made by the convict or his relative for grant of ordinary leave for extraordinary reasons.

The emergency leave or ordinary leave cannot be claimed as a right for having a conjugal relationship without an exceptional reason.

Case title: Meharaj v/s The State and Ors.

Citation: H.C.P. (MD) No.365 of 2018

Click here to read the Order/Judgment

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