Conjugal Rights of Prisoners

Introduction

Conjugal rights are the prisoners’ rights to be allowed to see their partner and relatives. The society is torn between the boons and the prohibitions of granting the prisoners such rights. Some justify complementing the right to life, while others point out the difficulty of granting such a benefit.

Background

The Jail is humanity’s oldest recognized correctional facility. Every country’s Penal Laws offer punishment for commission of any act classified as a crime in that country. Through person enjoys those privileges by the goodness of his being i.e. Droits of man. In India every citizen is granted an extension of these human rights in the form of Fundamental Rights.

Punishment means suffering someone for wrongdoing; for that reason, they may be jailed either because they have been found guilty of committing a crime or because they are waiting to be tried for a crime.

A conjugal visit is a scheduled period during which a prison or prison inmate is allowed to spend several hours or days in private with a visitor, usually their legal spouse. The generally accepted basis for allowing such visits in modern times is to maintain family relationships and improve the chances of a prisoner’s subsequent return to life after being released from prison. In addition, they act as an opportunity to encourage inmates to abide with the various day-to-day prison laws and regulations and to prevent any violation that could disqualify them from getting a conjugal visit.

According to the Reformative Punishment Theory, an offender commits a crime when there is a conflict between his character and his motive. One may indulge in the commission of a crime either because the temptation of motive becomes better or because the restriction imposed by personality becomes relatively weak. When that human being is compelled, he takes the law into his arms and commits a crime.

Such basic rights are given to all residents (some rights even to non-citizens) including the inmates. In the case of Charles Sobraj v. Superintendent, Central Jail[1], Tihar, Justice Krishna Aiyer stated that “Imprisonment does not say goodbye to fundamental rights although, through a realistic re-evaluation, the courts will refuse to recognize the full scope of Part III enjoyed by a free citizen.” It is therefore that the prisoners will only be denied rights that are ancillary to the punishment, such as the right to move etc., and are free to enjoy all the other fundamental rights.

All residents (some rights even to non-citizens) are granted such basic rights, including the inmates. In the case of Charles Sobraj v. Superintendent, Central Jail, Tihar[2], Justice Krishna Aiyer stated that “Imprisonment does not say goodbye to fundamental rights although, through a realistic reassessment, the courts will refuse to recognize the full scope of Part III enjoyed by a free citizen.” Thus, it is that the prisoners will only be denied rights that are ancillary to the punishment.

In G. Bhargava, Chair M / s. Gareeb v. State of Andhra Pradesh[3], the Andhra Pradesh High Court denied any such right to prisoners on the ground that such a provision was not provided for in the 1979 AP Prison Rules and that it would be unfavourable to confer such benefit on one prisoner on the other. Two years down the line, however, the Punjab and Haryana High Court held that the ‘right to procreate’ falls within the purview of the right to life and personal freedom enshrined in Article 21 of the Constitution, thus recognizing the ‘right to a conjugal visit’ or the ‘right to procreate’ as a fragment of the prisoners’ ‘right to life.’

Inmate Conjugal Rights: An evolution through cases

In the case of Francis Coralie Mulin v. the Governor, Delhi[4], the Court held that inmates are entitled to the enjoyment of all the basic rights applicable to any free citizen, aside from those excluded by the imprisonment cause. Whether the conjugal rights of prisoners are a right available to prisoners has been a matter brought before the Court. Over the years the response to this question has evolved through a few cases.

G. Chairman Bhargava m / s. Guide Gareeb (voluntary organisation) v. Andhra Pradesh State[5]

In this case , the petitioner filed a Public Interest Litigation ( PIL) before the Andhra Pradesh High Court seeking immediate action to allow conjugal visits to the prisoner’s spouses in the state wide jails. However, in the negative holding, the Court replied to the PIL that if certain conjugal rights are granted to other prisoners, then it will be unfair to the other prisoners to whom that right is not applied. The Court further stated that the issue of the conferral of conjugal rights is a political decision within the domain of the State and not within the jurisdiction of the Court to do so.

In Jasvir Singh and anr v. Punjab State, and others[6], the petitioners in this case were a couple, accused of raping and killing a sixteen-year-old for ransom. Trial Court awarded the pair a death penalty and their further challenge to the Supreme Court was rejected. The Supreme Court however commuted the wife’s sentence to life imprisonment. The petitioners prayed for their conjugal rights to be enforced and for their right to procreate during the incarceration. They also petitioned for the Court to direct the prison authorities to allow them to stay together for the sake of procreation. As an alternative they also asked for artificial insemination.

The main issue in this case is whether the prisoners’ ‘right to life’ includes the ‘right to conjugal visits’ and the ‘right to procreate.’ The Punjab and Haryana High Court contended that prisoners also had the right to procreation. That right can be traced to fall within the scope of reading with the UDHR under Article 21 of the Constitution. The Court stated that prisoners will not have access to only the rights that are ancillary to incarceration and, since there is no link between conjugal rights and incarceration, the prisoners are entitled to enjoy such rights, subject to reasonable restrictions.

The Court finally established that the right to conjugal visits or artificial insemination (alternative) includes Article 21 which is available to prisoners. The Court also held that the exercise of these rights is in keeping with the procedure established by the State.

Meharaj v. Tamil Nadu state, and others[7], In this case, the Petitioner (the convict’s wife) filed a petition before the Madras High Court seeking leave for her husband who is a life sentenced person. The leave is being sought for the purpose of assisting the petitioner in her undergoing infertility treatment. In this case, the Court emphasized the importance of family bonds and the relationship with the spouse in a prisoner’s reformation and held that, just because a person is a prisoner, he cannot be deprived of his right to dignity in a society. The Court affirmed that marital rights are a very important aspect of the right of a man to life.The court upheld that the right to a conjugal visit is within the scope of prisoners’ right to life and consequently prisoners are entitled to the same.

Conjugal Rights in other countries

USA-

There are only four states in the U.S. that offer marriage rights to prisoners — California, Connecticut, New York, and Washington. The privileges are not explicitly set down by statute, but the procedure has been recognized by all prisons. Prisoners get to meet their spouses twice a week. Most of the time, many prisoners are placed in the very same cabin, and the supervised visits take place under overcrowded conditions. In New York, extended family visits are only allowed to those prisoners who have been in their best conduct and whose punishment is only one year. For conjugal visitations, an apartment is given for the couple to stay and spend time in. The rationale behind providing for conjugal rights to prisoners is that it helps them in rehabilitation and relieving stress and frustration. Here, the laws on punishment are valued more than the institution of marriage. 

Canada-

The idea of conjugal visits started as a pilot project in the year 1980 and has since been adopted as a daily practice by the country since it has played a significant role in rehabilitating the prisoners. The outcomes of granting such a right were good, and it is necessary to make this process a success, because it is a measure of welfare for the prisoners.

Europe-

Conjugal rights in Europe are reliant on the European Convention on Human Rights which guarantees the right to marriage and privacy. Most European countries regard the right to marry as a fearful obligation and have children. In these countries the conjugal rights are more liberal and promising. For example, France allows twice a week for conjugal visitation and New Zealand allows spouses to visit their inmates for an hour each week. Sweden is considered to be the most liberal country granting spouses visitation rights on a Sunday of each month without supervision. It also allows for leaves from home and private visits.

India has taken the lead from the laws of those countries where citizens’ rights are given top priority. Given that India is an active signatory to most of the human rights treaties, it is hoped that it will soon provide the prisoners with these rights and thus uphold the fundamental constitutional principles.

Conclusion

In India, we have adopted a reformatory penal system in which the system incorporates practices conducive to reformation and recognizes rights that provide prisoners with a decent standard of living. Psychologists say family and spouse contact is an important aspect of a man’s life and it helps him feel stress-relieved and happy. The family institution is deeply rooted in the Indian sense. One of the most fundamental arguments put forward by supportive exponents is that the family ties do not fade away and remain strong by providing for conjugal rights.

In order to uphold a fair system of incarceration, it is important to provide conjoint rights to prisoners because it helps to reform and rehabilitate prisoners in tandem with the nature of the penal code of India. The Judiciary played an exemplary role in the recognition of prisoners’ conjugal rights. Jasvir Singh v State of Punjab’s[8] landmark judgment has introduced a new dimension of the right to procreate and the right to conjugal visits to life. The judgment has taken a step forward in the recognition of the prisoners’ rights.

Taking a lesson from prisoners ‘rights in foreign countries, the Indian Courts are increasingly working towards improving prisoners’ living conditions.There is no provision in the current legal framework governing the prisoners to confer conjugal rights on the prisoner and so such a drawback must be addressed immediately. We conclude that such rights are a desideratum by evaluating the boons and banes of vesting conjugal rights for prisoners.

Questions-

  1. What do you mean by Conjugal rights?
  2. Who are prisoners?
  3. What is the status of conjugal rights in other countries?
  4. State some case laws on conjugal rights?

[1] 1978 AIR 1514

[2] Supra 1

[3] PIL No.251 of 2012 decided on 16 July 2012

[4] 1981 AIR 746

[5] Supra 3

[6] LPA No. 156 of 2019 (O&M)

[7] W.P.No.27499 of 2018

[8] Supra 6

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