SC to examine appeal against Rajasthan HC parole to life convict to start family

The Supreme Court on Monday agreed to examine a plea by Rajasthan government challenging a high court order, which granted 15 days parole to a life convict to have a conjugal relationship with his wife, for progeny.

Counsel, representing the state government, contended before a bench headed by Chief Justice N.V. Ramana that this order by the Rajasthan High Court has opened the floodgates. “Many convicts are coming and applying for parole,” the counsel added, urging the court to hear the matter.

After hearing brief submissions, the top court agreed to examine the plea next week.

The high court had allowed the application filed by life convict Nand Lal through his wife. He contended that his wife has been deprived of her right to have progeny, even though she has not committed any offence and is not under any punishment.

The high court, in an order passed on April 5 this year, noted that in view of the fact that the spouse of the prisoner is innocent and her sexual and emotional needs associated with marital lives are affected and in order to protect the same, the prisoner ought to have been awarded cohabitation period with his spouse.

“Thus, viewing from any angle, it can safely be concluded that the right or wish to have progeny is available to a prisoner as well subject to the peculiar facts and circumstances of each case,” added the high court.

The high court said 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,” said the high court.

It added that Hindu philosophy also advocates the importance of pitra – rin, i.e. parental debt and “our lives are the consequence of the fact that ancestors have been carrying and forwarding the said pitra rin, it is because of this, life came to us and in order to maintain the continuity of life, we must pay off this debt”.

Giving relief to Nand Lal, the high court said: “We are of the considered view that though there is no express provision in the Rajasthan Prisoners Release On Parole Rules, 2021 for releasing the prisoner on parole on the ground of his wife to have progeny; yet considering the religious philosophies, cultural, sociological and humanitarian aspects, coupled with the fundamental right guaranteed by the Constitution of India and while exercising extraordinary power vested in it, this Court deem it just and proper to allow the instant writ petition.”

The high court also cited Jasvir Singh and Another v. State of Punjab 2015, where the case involved important rights with regard to the conjugal rights of prisoners. “The court had ruled that the ‘right to procreation survives during incarceration’ and ‘is traceable and squarely falls within the ambit of Article 21 of our Constitution’.

It had then directed the Punjab government to constitute a Jail Reforms Committee, to be headed by a former high court judge. Among other things, this committee was to formulate a scheme for creation of an environment for conjugal and family visits for jail inmates and identify the categories of inmates entitled to such visits, keeping in mind the beneficial nature and reformatory goals of such facilities”, noted the high court.

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