Madras High Court
Meharaj vs The State on 3 September, 2021
H.C.P. (MD) No.365 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 14.12.2021
DELIVERED ON : 20.01.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI,
ACTING CHIEF JUSTICE,
THE HON'BLE MRS.JUSTICE PUSHPA SATHYANARAYANA
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
H.C.P. (MD) No.365 of 2018
Meharaj .. Petitioner
vs
1. The State, rep. by its
Secretary to Government of Tamil Nadu
Home Department, Fort St. George
Chennai - 600 009.
2. The Additional Director General of Prison
C.M.D.A. Towers
Egmore, Chennai - 600 008.
3. The Deputy Inspector General of Prisons
Madurai Zone, Madurai - 625 016.
4. The Superintendent
Central Prison, Palayamkottai.
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5. The Union of India, through
the Secretary to the Government of India
Ministry of Home Affairs, North Block
New Delhi - 110 001. .. Respondents
(Impleaded vide order dated
3.9.2021)
Prayer: Petition filed under Article 226 of the Constitution of India
praying for a writ of habeas corpus directing the respondents to
grant leave for six weeks to her husband, and consequently allow
her husband to take the treatment, the detenue, Siddhiqe Ali @
Sulthan, S/o.Dheen, Convict No.7369, aged about 40 years,
detained at Palayamkottai Central Prison.
For the Petitioner : Mr.R.Narayanan
For the Respondents : Mr.Shunmugasundaram
Advocate General
assisted by
Mr.A.Damodaran
Addl. Public Prosecutor
for 1st respondent
: Mr.Hasan Mohamed Jinnah
State Public Prosecutor
assisted by
Mr.S.Santhosh
Government Advocate
(Criminal Side)
for respondents 2 to 4
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H.C.P. (MD) No.365 of 2018
: Mr.Avinash Krishnan, CGSC
for 5th respondent
: Mr.N.Dilip Kumar
Amicus Curiae
ORDER
MUNISHWAR NATH BHANDARI, ACJ
A Division Bench passed an order on 25.2.2019 referring the
following two questions for consideration by a Larger Bench:
(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? and
(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?
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2. The reference of the questions has been in view of the
order of Division Bench dated 11.1.2018 granting temporary leave
for a period of two weeks to the convict. The said 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 the said 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 from 20.1.2018 to 3.2.2018.
For the said period, the sentence was suspended and, accordingly,
respondents 3 and 4 therein were directed to release the husband
of the petitioner subject to certain conditions. Aggrieved by the
said order dated 11.1.2018, the State filed Crl.M.P.(MD) No.832 of
2019 seeking review the said order.
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3. While the application was pending, H.C.P. (MD) No.365 of
2018 was filed by the petitioner seeking six weeks leave to her
husband by relying upon the order dated 11.1.2018. The Division
Bench, vide the order of reference dated 25.2.2019, noticed that
there is no provision in the Tamil Nadu Suspension of Sentence
Rules, 1982 (for brevity, "the 1982 Rules") for grant of emergency
or ordinary leave for a convict to have conjugal relationship with
spouse. Under those circumstances, the matter was referred to the
Larger Bench to answer the questions framed and quoted above.
4. Before answering the questions framed by the Division
Bench, it would be appropriate to refer to the brief facts of this
case. The petitioner's husband, Siddhiqe Ali @ Sulthan, was
convicted to life imprisonment on commission of offences under
Sections 148, 302, 201 and 120B of the Indian Penal Code. The
order of the trial court was confirmed by the High Court in Criminal
Appeal Nos.1736 and 1807 of 2003 and also by the Apex Court in
Criminal Appeal Nos.2118 and 2119 of 2009.
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5. The petitioner's husband and other persons are alleged to
have committed murder and hence a case was registered bearing
Crime No.59 of 1999. After getting bail in the above crime number,
the petitioner's husband is stated to have been involved in the
Coimbatore Bomb Blast case, apart from many other cases in Tamil
Nadu and Kerala. The details of those cases have been given in the
affidavit filed by the respondents and are quoted hereunder for
ready reference:
Sl.No. S.C.No. Offence Sentence
2000 on the file of
Fast Track Court,
Thiruchirapalli
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Sl.No. S.C.No. Offence Sentence
U/s 120(B) IPC r/w Convicted and
section.3 of Explosive sentenced to undergo
Substance Act 1908 R.I. for 8 years.
U/s.120(B) IPC r/w 4(a) Convicted and
of Explosive Substances sentenced to undergo
Act 1908 R.I. for 6 years.
S.C.No.8 of 2003
on the file of U/s.120(B) IPC r/w 4(b) Convicted and
District and of Explosive Substances sentenced to undergo
Sessions Judge, Act 1908 R.I. for 6 years.
Sessions Court for U/s.120(B) IPC r/w 5 r/w Convicted and
2 Exclusive Trial of Sec.6 of Explosive sentenced to undergo
Bomb Blast Cases, Substances Act 1908 R.I. for 5 years.
Chennai at
Poonamallee. U/s.120(B) IPC r/w 307 Convicted and
IPC sentenced to undergo
R.I. for 8 years
U/s.120(B) IPC r/w Sec. Convicted and
4 of TNPPL (L&D) Act sentenced to undergo
1992 R.I. for 3 years.
U/s.120(B) IPC r/w Sec. Convicted and
9-B(1)(b) Explosive sentenced to undergo
Substances Act r/w 141 R.I. for 2 years against
of Explosive Substances the 1st charge.
Act Rules 1983
U/s 4(b) of Explosive Convicted and
Substances Act 1908 sentenced to undergo
R.I. for 6 years against
the 2nd charge.
U/s 4(1)(a) of Explosive Convicted and
Substances Act 1908 sentenced to undergo
R.I. for 6 years against
the 4th charge.
U/s.307 IPC Convicted and
sentenced to undergo
R.I. for 8 years against
the 5th charge.
U/s.4(a) r/w 6 of Convicted and
Explosive Substances Act sentenced to undergo
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Sl.No. S.C.No. Offence Sentence
U/s.4(a), 3r/w 6 of Convicted and
Explosive Substances Act sentenced to undergo
R.I. for 6 years against
the 7th charge.
3 S.C.No.2 of 2000 U/s.307 IPC He was sentenced to
on the file of suffer rigorous
Sessions Judge of imprisonment for 7
Bomb Blast Court, years.
Coimbatore
6. In view of the involvement of the petitioner's husband in
the Bomb Blast Case and other offences, he was held not entitled to
remission under the 1982 Rules and even under the provisions of
the Code of Criminal Procedure, 1973. The petitioner's husband is
also said to have committed prison offence and sustained
punishment for it. It is also averred that the further appeals filed
by private party against the judgment in the Coimbatore Bomb
Blast cases are pending consideration before the Apex Court.
7. The factual matrix aforesaid has been taken into
consideration by the respondents to deny leave. It is, however, a
fact that this court vide order dated 11.1.2018 made in H.C.P.(MD)
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No.1837 of 2017 granted leave to the petitioner's husband for a
period of two weeks with liberty to approach the court or the jail
authorities seeking extension of time by another two weeks in case
further treatment is required based on the advise of the doctor. A
fresh writ petition was filed by the petitioner to seek six weeks'
leave to her husband on the same ground as was urged earlier
while pursuing the first writ petition. The petitioner did not file an
application for extension of the period of leave despite liberty given
by this court in its order dated 11.1.2018. The Division Bench,
while hearing the fresh writ petition, referred the aforesaid two
questions for consideration by the Larger Bench.
8. To address the questions framed by the Division Bench, we
need to first refer to the relevant provisions of the 1982 Rules.
Rules 3, 6, 7, 20 to 25 of the 1982 Rules are quoted hereunder for
ready reference:
"3. Leave is not a right.- Leave cannot be claimed
as a matter of right. It is a concession granted to
the prisoner.
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6. Grounds for the grant of emergency leave.-
Emergency leave may be granted for attending death
or serious illness of father, mother, wife, husband,
son, daughter, full brother or full sister, as the case
may be, or the wedding of the prisoner or son,
daughter, full brother or full sister of the prisoner, as
the case may be, and for having delivery outside the
prison in the case of female pregnant prisoners.
7. Eligibility for emergency leave.- No emergency
leave shall be granted to a prisoner unless,-
(i) he has been sentenced by a Court in this State to
imprisonment for a term or imprisonment for life for
an offence against any law other than a law relating
to a matter to which the executive power of the
Union Government extends;
(ii) his conduct in prison has been satisfactory;
(iii) female pregnant prisoner for having delivery
outside the prison provided who are not constituting
high security risks or of cases of equivalent grade
descriptions.
20. Grounds for the grant of ordinary leave.-
The grounds for the grant of ordinary leave to a
prisoner shall be-
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(i) to make arrangements for the livelihood of his
family and for the settlement of life after release;
(ii) To make arrangements for the admission of the
children in the school or college;
(iii) construction or repairing the homestead;
(iv) to make arrangements or to participate in the
marriage of the prisoner, sons, daughters, full
brother or full sisters, as the case may be, of the
prisoner;
(v) settling family disputes like partition, etc;
(vi) agricultural operations like sowing, harvesting,
etc;
(vii) any other extraordinary reasons; and
(viii) in case of female pregnant prisoners, for having
delivery outside the prison.
21. Non-eligibility for ordinary leave.- The
following categories of prisoners shall not be eligible
for ordinary leave :
(a) Offenders classified as habituals;
(b) Prisoners sentenced under sections 392 to 402 of
the Indian Penal Code (Central Act 45 of 1860);
(c) Prisoners where presence is considered
dangerous or prejudicial to public peace and
tranquility;
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(d) Prisoners who are considered dangerous or who
are involved in the following prison offences:-
(1) assault;
(2) outbreak;
(3) riot ;
(4) mutiny;
(5) escape;
(6) instigation to serious violations of prison
rules;
(7) strike;
(e) Prisoners committed to prisons in default of
furnishing security to keep the peace or be of good
behaviour ;
(f) Prisoners suffering from unsoundness of mind or
contagious diseases. In such cases the eligibility shall
be decided in accordance with the opinion of the
Medical Officer;
(g) female pregnant prisoners, for having delivery
outside the prison, constituting high security risk or
cases of equivalent grave descriptions.
22. Eligibility for ordinary leave.-
(1) No prisoner shall be granted ordinary leave
unless he has been sentenced by a Court in this
State to imprisonment for a term or imprisonment
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for life for an offence against any law other than a
law relating to a matter to which the executive power
of the Union Government extends and he has
completed three years of imprisonment from the
date of initial imprisonment.
(2) The period of ordinary leave shall not exceed one
month at a time unless it is extended by
Government.
(3) The prisoner shall be granted the second spell of
leave not exceeding one month after the completion
of two years of imprisonment from the date on which
he returns from the last ordinary leave.
(4) In cases of prisoners who have got a balance of
three years to serve ordinary leave not exceeding
one month for each of three years, the year being
calculated from the date of his return to prison from
last leave, shall be granted so as to enable them to
make arrangements for settling the family life after
release.
23. Petition ordinary leave.-
(1) The petition for ordinary leave shall be submitted
by the prisoner or by a relative of said prisoner to
the Deputy Inspector-General of Prisons concerned
direct or sent through the Superintendent Prison
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where the prisoner to whom leave is to be granted is
confined.
(2) Each petition for ordinary leave shall be
accompanied with a statement of the names of two
sureties who are willing to execute the bond for the
prisoner's release on leave and take care of the
prisoner during the period of leave. In the petition, it
shall be stated, among other things, the names and
addresses of the prisoner's relatives with whom he
wishes to stay during his leave period.
In case of female pregnant prisoner, for having
delivery outside the prison, the petition for ordinary
leave shall be submitted along with Medical
Certificate or report of the Prison Medical Officer or
Assistant Surgeon in respect of probable date of
delivery.
24. Process of petition.- All petitions for the grant
of ordinary leave submitted to the Deputy Inspector
General of Prisons or to the Superintendent of Prison
shall be referred to Probation Officer concerned for
reports on the advisability of the ordinary leave of
the prisoner in question. The Probation Officer shall
personally enquire into and send his report to the
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Deputy Inspector General of Prisons or to the
Superintendent in Form I. If the Probation Officer
feels that the release on leave of a prisoner is likely
to involve the local Sub-Inspector of Police, solely
with a view to avoid any breach of peace and record
the views of the Sub-Inspector of Police in the said
Form. In respect of other cases where there is no
likelihood of breach of peace, the Probation Officer
shall send his report direct to the Deputy Inspector
General of Prisons or to the Superintendent of
Prisons without consulting the local Sub-Inspector of
Police. Where the petition has been submitted to the
Superintendent of Prisons, he shall forward the
petition along with the records such as the Normal
Role of the prisoner, check memorandum in Form II,
statement showing the details of leave availed by the
prisoner from the date of his conviction, a statement
showing the offences committed by the prisoner and
punishment awarded and the probation officer's
report expeditiously to the Deputy Inspector-General
of Prisons. The Deputy Inspector General of Prisons
may, on consideration of the petition and reports,
pass such orders as he deems fit.
25. General conditions governing for grant of
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emergency and ordinary leave.- The following
conditions shall, invariably, be laid down while
granting leave in addition to such other conditions, if
any, specified by the Government, Inspector-General
of Prisons or the Deputy Inspector-General of Prisons
or the Superintendent of Prisons, as the case may
be, as may be deemed necessary:-
(i) that the prisoner shall execute a surety bond in
Form II for rupees five hundred with two sureties for
a like sum each;
(ii) that he shall report at the Police station daily
once;
(iii) that the prisoner shall reside at the place
specified by the Superintendent of Prisons or the
Deputy Inspector-General of Prisons or the
Government, as the case may be, and shall not go
beyond the limits of that place;
(iv) that the prisoner shall be of good behaviour and
shall not commit any offence during his leave;
(v) that the prisoner shall not associate with bad
characters or lead a dissolute life;
(vi) that the prisoner shall be liable to be recalled
immediately to prison in case he violates any of the
conditions;
(vii) that the prisoner shall surrender himself to the
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Superintendent of the Prison on expiry of leave
granted or on recall; and
(viii) that in case of female pregnant prisoners, for
having delivery outside the prison, she shall reside at
the place of delivery proposed by her."
9. As per Rule 3 of the 1982 Rules, leave cannot be claimed as
a matter of right, while Rule 6 of the 1982 Rules permits emergency
leave for attending death or serious illness of the family members
referred to therein or even for the wedding of the prisoner or family
members stated therein. Rule 7 of the 1982 Rules refers to the
eligibility for emergency leave, while Rule 20 of the 1982 Rules
refers to the grant of ordinary leave. Rule 21 of the 1982 Rules
stipulates the categories of prisoners not eligible for ordinary leave,
while Rule 22 of the 1982 Rules prescribes the eligibility for grant of
ordinary leave.
10. In the framework of the 1982 Rules, referred to above, we
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need to answer the moot question referred to the Larger Bench,
namely, whether the denial of conjugal rights to a convict would
amount to denial of rights guaranteed under Article 21 of the
Constitution of India. Article 21 of the Constitution of India is
quoted herein under for ready reference:
"21. Protection of life and personal liberty.- No
person shall be deprived of his life or personal liberty
except according to procedure established by law."
Article 21 of the Constitution of India guarantees protection of life
and personal liberty.
11. The question for our consideration is as to whether a
convict, after the trial in the criminal case, can seek liberty for
having conjugal relationship in reference to Article 21 of the
Constitution of India. It is no doubt true that Article 21 of the
Constitution of India guarantees protection of life and personal
liberty, except according to law. In the instant case, the petitioner's
husband was tried in a criminal case and has been convicted for life
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imprisonment. The habeas corpus petition was filed by the wife
seeking grant of leave to her husband for a period of thirty days for
having conjugal relationship. It is in view of the fact that no child
was born from their wedlock and as per the opinion of the doctors,
the convict and the petitioner have to undergo infertility treatment.
12. The facts of this case show that earlier the petitioner's
husband was granted leave for a period of two weeks for the
purpose of undergoing infertility treatment. The petitioner's
husband availed such leave. Thereafter, the present writ petition
was filed seeking leave again for six weeks to the petitioner's
husband for undergoing infertility treatment. The aforesaid aspect
has to be considered by the Division Bench as we are answering the
questions referred to us.
13. The issue of conjugal rights of the convict in reference to
Article 21 of the Constitution of India was considered threadbare by
the Punjab and Haryana High Court in the case of Jasvir Singh v.
State of Punjab, 2015 Cri LJ 2282. In the said case, a Single
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Bench of the Punjab and Haryana High Court had made a reference
to the provisions of the Prisons Act, 1894 and the judgment of the
Apex Court in the case of Sunil Batra v. Delhi Administration,
(1978) 4 SCC 494. A consideration was also made in reference to
the international perspective and the view of the foreign courts' on
conjugal visits in prisons and artificial insemination. The writ
petition was decided holding conjugal rights of the prisoner to be a
fundamental right guaranteed under Article 21 of the Constitution of
India. A similar view was expressed by the Patna High Court in the
case of Rajeeta Patel v. State of Bihar and others, 2020 (4)
PLJR 669.
14. Before further addressing the issue, it would be relevant
to analyze the meaning of the words "conjugal rights". Conjugal
rights means the privilege to the husband and wife arising from the
marriage, including mutual rights of companionship. The words
aforesaid are commonly used when one of the partner denies the
companionship to the other. In such circumstances, conjugal rights
are sought to be enforced by the partner who had been denied such
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companionship. The enforcement of conjugal rights is invariably
made by invoking the provisions of the Hindu Marriage Act, 1955.
The words aforesaid have been imported even for the prisoner to
have conjugal relationship with the spouse.
15. A convict has certain restrictions of visit, though taking
into consideration the wide spectrum of Article 21 of the
Constitution of India, the 1982 Rules have already been framed for
suspension of sentence. The provisions of the 1982 Rules provide
for grant of emergency leave to the accused not only to attend
death or serious illness of father, mother, wife, husband, son,
daughter, full brother or full sister, as the case may be, but even for
wedding of the prisoner or son, daughter, full brother or full sister,
and even for having delivery outside the prison in the case of
female pregnant prisoners. Apart from the aforesaid, a provision for
grant of ordinary leave also exists for a prisoner to make
arrangements for the livelihood of his family and for settlement of
life after release, apart from grant of leave to make arrangements
for the admission of the children in school or college; construction
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or repairing the homestead; agricultural operations like sowing,
harvesting, etc. In view of the above, we find Rules 6 and 20 of
the 1982 Rules in consonance with Article 21 of the Constitution of
India.
16. It is true that the 1982 Rules do not provide leave for
having conjugal relationship with spouse. It is for the reason that if
a provision for leave to have conjugal relationship is provided, the
prisoner may ask for the leave invariably on that ground and, that
too, time and again. It cannot, however, mean that under all
circumstances except those specified in Rule 20(i) to (vi) and Rule
20(viii) of the 1982 Rules leave can be denied, rather Rule 20(vii) of
the 1982 Rules provides for grant of leave for any other
extraordinary reasons, which can be of the nature referred in this
case, i.e., for undergoing infertility treatment. However, we need
to take note of the fact that the leave on that ground cannot be
sought time and again because the reference of the two questions
to the Larger Bench is only for the reason that even after grant of
leave on one occasion for undergoing infertility treatment, the
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second petition for leave on the same ground has been submitted.
The liberty sought by the petitioner to beget the child by granting
leave to her husband for undergoing infertility treatment was
allowed by this court on an earlier occasion and, accordingly, we
have to analyze the issue not only in reference to Article 21 of the
Constitution of India, but by referring to the 1982 Rules and the
judgments on the issue.
17. Rule 20(vii) of the 1982 Rules allows grant of ordinary
leave to a prisoner on extraordinary reasons. The word
"extraordinary" needs to be given meaning. It would be available
to the convict to seek leave on extraordinary reasons. The meaning
of the word "extraordinary" has not been given in the 1982 Rules.
Thus, we are referring to the meaning of the word "extraordinary"
from the Black's Law Dictionary, Tenth Edition, which is as under:
"Extraordinary, adj. (15c)
1. Beyond what is usual, customary, regular, or
common <extraordinary measures>.
2. Of, relating to, or involving a degree of care,
diligence, caution, or prudence that would be
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exercised by highly fastidious and thoughtful people,
though falling short of any superhuman effort
<extraordinary care>.
3. Of, relating to, or involving legal proceeding or
procedure not normally required or resorted to <an
extraordinary sitting of the court>.
4. Of, relating to, or involving an occurrence, esp. an
incident or accident, that would not have been
foreseeable to someone of normal prudence <an
extraordinary deluge>.
5. Surpassing the common degree, measure or
allotment <extraordinary acuity>.
6. Employed for an exceptional purpose or for a
special occasion <envoy extraordinary>. In sense
6, extraordinary frequently functions as a
postpositive adjective (as in the bracketed
illustration).
7. Of, relating to, or involving a course of study or
one or more lectures not considered part of the core
curriculum but instead of secondary importance <an
extraordinary elective>."
[emphasis supplied]
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18. As per the Oxford English Dictionary, Second Edition,
Volume V, the word "extraordinary" means as under:
"out of the usual or regular course or order;
often in expressed opposition to ordinary.
Of a kind not usually met with; exceptional;
unusual; singular. Now with emotional sense,
expressing astonishment, strong admiration or
the contrary.
Exceeding what is usual in amount, degree,
extent, or size."
[emphasis supplied]
19. The word "extraordinary" read in conjunction with the
word "reasons" makes it ample clear that the reasons should be
beyond what is usual, regular or common. In other words, the
reasons should be different from ordinary reasons and can be of
exceptional nature.
20. The question for consideration would be as to whether the
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wife of the convict can seek leave to enable her and the convict
husband undergo infertility treatment to beget a child and whether
it would fall under the category of extraordinary reasons.
21. In the case on hand, it is evident from the facts narrated
in the Division Bench order dated 11.1.2018 that leave was sought
referring to extraordinary reasons and the Division Bench dealt with
the issue in reference to the beliefs of psychologists and
psychiatrists that, at times, denial of conjugal relationship may lead
to frustration and tension, apart from ill-feelings and heart
burnings. While concluding the order, the objection regarding the
maintainability of the habeas corpus petition has also been dealt
with.
22. We find that the prayer of the petitioner to undergo
infertility treatment in a circumstance when the convict has no child
from the wedlock forms an extraordinary reason for grant of leave.
In view of the above, we find that the case of the petitioner was
falling under Rule 20(vii) of the 1982 Rules. It is, however,
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necessary to clarify that the Rule aforesaid cannot be invoked in all
situations. It can be granted to undergo infertility treatment, that
too, for a convict having no child from the wedlock. If the convict
has child or children from the wedlock, then to seek leave for
infertility treatment or on similar ground would not fall in the
definition of "extraordinary reasons". It is also that leave cannot
be sought repeatedly on one and the same ground under the
category of extraordinary reasons. If leave for having conjugal
relationship is recognized to be a right under Article 21 of the
Constitution of India, the prayer of similar nature can be made by
the accused or his/her spouse time and again to have conjugal
relationship. The observation aforesaid has been made in reference
to the provisions of the Code of Criminal Procedure as well as the
Prisons Act, 1894. A convict cannot enjoy all the liberties as are
available to a common person, otherwise there would no difference
between a law-abiding citizen and a law-violating prisoner. The
aforesaid would not mean that prisoners do not have any right or
liberty, rather we had recorded our finding that the 1982 Rules take
care of Article 21 of the Constitution of India. A word of caution in
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regard to conjugal rights has been put so that the liberty, if any,
may not be misused by the convict or the spouse, rather it is used
for the purpose it is meant or required.
23. At this stage, we need to clarify that judgment of the Full
Bench in The State v. Yesu, (2011) 2 LW (Crl.) 257 referred to
by the Division Bench in its order dated 11.1.2018 is in reference to
grant of parole, for which only an administrative instruction under
Article 162 has been issued by the State of Tamil Nadu and,
accordingly, it was held that neither the government nor any other
statutory authority has power to grant parole in the absence of the
rules or a statute. In our opinion, the finding recorded by the Full
Bench in the case of Yesu (supra) does not in any manner affect
the authorities to grant leave to the convict under the 1982 Rules
by suspending the sentence for the period of leave. The Full Bench
decision in the case of Yesu (supra), referred by the Division Bench
in the order dated 11.1.2018 does not deal with the issue referred
herein.
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24. In view of the above, we need to answer the questions
framed by the Division Bench. A conjugal right in common parlance
is for maintaining marital status by husband and wife. 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
we can safely hold that the 1982 Rules itself protect the rights of
the prisoner guaranteed under Article 21 of the Constitution of India
to the extent it is required.
25. If we hold that deprivation of conjugal right to a convict
offends Article 21 of the Constitution of India, it would mean to give
right to a convict for conjugal right, which in common parlance is for
maintaining the marital relationship of husband and wife in
continuity with companionship. The same cannot be permitted for a
convict, as a difference has to be made between the law abider and
violator. If the case in hand is also taken note of, the petitioner's
first petition was allowed with grant of leave for two weeks for
undergoing infertility treatment and immediately after availing it,
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the second petition was filed in continuity. The facts aforesaid
cannot be ignored by the court because after the judgment by the
court holding conjugal right to be a fundamental right, the convict
would come out with an application to secure his fundamental rights
guaranteed under Article 21 of the Constitution of India without any
restraint and, therefore, we need to take a cautious decision so that
the ratio propounded by us is used for the purpose and,
accordingly, we answer the questions in the following terms:
(i) 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.
(ii) The State can be directed to consider the request
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of convict for emergency leave or ordinary leave for
the purpose given while answering the question No.
(i). The emergency leave or ordinary leave would be
for the purpose given under the 1982 Rules and if
any extraordinary reason exist, 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 conjugal relationship without an
exceptional reason. This demarcation is necessary as
the curtailment of some rights of a prisoner on
account of his conviction to the extent indicated
above does not offend Article 21 of the Constitution
of India.
26. The Registry is directed to place the papers before the
roster Bench for disposal.
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27. The Committee constituted pursuant to the orders of this
Court may continue its study and submit a detailed report to the
respondent authorities for consideration in an appropriate manner in
a deserving case and also for the legislature to consider if any
amendment is necessary in the 1982 Rules in this regard.
28. Before parting with this Judgment, we like to place on
record our appreciation for the excellent assistance rendered by
learned counsel on either side and Amicus Curiae, Mr.N.Dilip Kumar.
(M.N.B., ACJ.) (P.S.N., J.) (P.D.A., J.)
20.01.2022
Index : Yes/No
sasi
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To:
1. The Secretary to Government of Tamil Nadu
Home Department, Fort St. George
Chennai - 600 009.
2. The Additional Director General of Prison
C.M.D.A. Towers
Egmore, Chennai - 600 008.
3. The Deputy Inspector General of Prisons
Madurai Zone, Madurai - 625 016.
4. The Superintendent
Central Prison, Palayamkottai.
5. The Secretary to the Government of India
Ministry of Home Affairs, North Block
New Delhi - 110 001.
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H.C.P. (MD) No.365 of 2018
M.N.BHANDARI, ACJ.
PUSHPA SATHYANARAYANA,J.
AND
P.D.AUDIKESAVALU,J.
(sasi)
H.C.P. (MD) No.365 of 2018
20.01.2022
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