Madras High Court permits conjugal relationship to prisoner, only in extraordinary circumstances

The Madras High Court has observed that prisoners do not have fundamental right to conjugal relationship under Article 21, but the same is available for ‘extraordinary purposes’ like fertility treatment.

A three-Judge Division Bench comprising  Acting Chief Justice Munishwar Nath Bhandari, Justice Pushpa Sathyanarayana and Justice PD Audikesavalu held that 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.

It said the specific purpose 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, the Bench noted.

Two questions were before the Bench for consideration:

i) Whether the denial of conjugal rights to a convict prisoner would amount to denial of such a right to his/ her spouse and thereby, violative of Article 21 of the Constitution of India.

ii) Whether the State can be directed to favourably consider the request of a convict prisoner for emergency leave or ordinary leave for the purpose of having conjugal relationship with his/her spouse, though the Tamil Nadu Suspension of Sentence Rules, 1982 do not envisage this.

The Division Bench passed the order on a petition filed by the wife of a detenu, seeking temporary leave for the convict with the aim of having a conjugal relationship, since the couple did not have a child and were advised infertility treatment.

This plea was accepted and the convict was granted two weeks of temporary leave. However, when the petitioner approached the Court again seeking an extension of six weeks, the matter was referred to a larger Bench.

The Bench opined that the facts of the present case formed an extraordinary reason for grant of leave. However, the Rule could not be invoked in all situations or time and again.

Advocate R Narayanan appeared for the petitioner, while the respondents were represented by Advocate General R Shunmugasundaram, Additional Public Prosecutor A Damodaran, State Public Prosecutor Hasan Mohamed Jinnah, Government Advocate S Santhosh and Central Government Standing Counsel Avinash Krishnan.

Advocate N Dilip Kumar served as the Amicus Curiae.

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