Madras High Court
Mrs.Meharaj vs The State Represented By Its on 7 March, 2022
W.P.(MD) No.4007 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
W.P(MD)No.4007 of 2022
Mrs.Meharaj ... Petitioner
.Vs.
1.The State represented by its
Secretary to Government of Tamil Nadu,
Home Department,
For 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. ... Respondents 1 to 4
5.The Union of India,
Through the Secretary to the Government of India,
1/6
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W.P.(MD) No.4007 of 2022
Ministry of Home Affairs,
North Block,
New Delhi-110 001. ...Respondents No.5
PRAYER: Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Habeas Corpus, directing the respondents to grant leave for 6
weeks to the petitioner's husband and consequently, allow the petitioner's
husband to take treatment, the detenue, Siddhiqe Ali @ Sulthan, S/o.Dheen,
convict No.7368, aged about 40 years detained at Palayamkottai Central
Prison.
For Petitioner : Mr.R.Narayanan
For Respondents : Mr.A.Thiruvadikumar
Addl. Public Prosecutor.
ORDER
R.SUBRAMANIAN, J.
AND
N.SATHISH KUMAR, J.
The petitioner seeks ordinary leave for the purpose of taking
treatment for infertility. The petitioner was granted ordinary leave earlier,
the treatment was not successful.
2.The learned counsel for the petitioner would rely upon the Doctor's
opinion which states that if both the husband and wife are treated for 30
days, there is a chance of wife conceiving.
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W.P.(MD) No.4007 of 2022
3.The very question whether the conjugal rights is a fundamental or
not, was answered by the Full Bench of this Court in H.C.P(MD)No.365 of
2018, which has been now converted into a writ petition in W.P(MD)No.
4007 of 2022, on our direction. The Hon'ble Full Bench has observed as
follows:
“(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 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
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W.P.(MD) No.4007 of 2022
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.”
4.In view of the above categorical findings of the Full Bench, this
Writ Petition is disposed of with a direction to the authorities to consider the
request of the petitioner for grant of ordinary leave for the purpose of
infertility treatment, in the light of the directions issued in the judgment
extracted above. While disposing of the petitioner's request, the State shall
have regard to the observations of this Court made in H.C.P(MD)No.1837
of 2017. No costs.
(R.S.M., J.) (N.S.K., J.)
07.03.2022
Index : Yes / No
Internet : Yes / No
Ns
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.4007 of 2022
To
1.The Secretary to Government of Tamil Nadu,
Home Department,
For 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 Union of India,
Through the Secretary to the Government of India,
Ministry of Home Affairs,
North Block,
New Delhi-110 001.
6.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.4007 of 2022
R.SUBRAMANIAN, J.
AND
N.SATHISH KUMAR, J.
Ns
W.P.(MD) No.4007 of 2022
07.03.2022
https://www.mhc.tn.gov.in/judis
