Raj HC reiterated “Right to Procreation survives during incarceration” and “is traceable and squarely falls within the ambit of Article 21 of our Constitution; Parole granted

Rajasthan High Court: The Division Bench of Farjand Ali and Sandeep Mehta, JJ. allowed the petition and granted parole after considering the religious philosophies, cultural, sociological and humanitarian aspects, coupled with the fundamental right guaranteed by the Constitution of India.

The facts of the case are such that the convict prisoner Nand Lal is serving the sentence awarded to him and has undergone imprisonment of around six years out of sentence of life imprisonment awarded to him including remission. Smt. Rekha, wife of the petitioner filed an application averring therein that conduct of his husband  had been exceedingly well in the jail premises and he was granted first parole by this Court for the period of 20 days which he availed satisfactorily and surrendered back to the prison on due date. It is averred in the application that she has not begotten any issue from their wedlock and thus, for want of progeny, she craves for 15 days emergent parole. The said application is pending consideration before the District Collector-cum-Chairman, District Parole Committee, Ajmer, however, no order has been passed therein till date. The instant writ petition has been preferred by convict prisoner Nand Lal through his wife Smt. Rekha seeking emergent parole under Rule 11 (1) (iii) of the Rajasthan Prisoners Release On Parole Rules, 2021 (hereinafter for short ‘the Rules of 2021’) on the ground of want of progeny.

The Court, however, instructed the police officials concerned to make an inquiry regarding family status of the convict-prisoner and place the report on record. The report stated that Smt. Rekha is legally wedded wife of the petitioner and she is residing at her matrimonial home along with her in-laws

The Court observed that having progeny for the purpose of preservation of lineage has been recognized through religious philosophies, the Indian culture and various judicial pronouncements. As mentioned above, the right of progeny can be performed by conjugal association; the same has an effect of normalizing the convict and also helps to alter the behavior of the convict prisoner. The purpose of parole is to let the convict to re-enter into the mainstream of the society peacefully after his release. The wife of the prisoner has been deprived of her right to have progeny whilst she has not committed any offence and is not under any punishment. Thus, denial to the convict-prisoner to perform conjugal relationship with his wife more particularly for the purpose of progeny would adversely affect the rights of his wife.

Right of Progeny 

  1. Religious Aspect:

As per Hindu philosophy, Garbhadhan, i.e. attaining the wealth of the womb is the first of the 16 sacraments. In Judaism, Christianity, and some other Abrahamic religions the cultural mandate includes the sentence “Be fruitful and multiply and fill the Earth.” The cultural mandate was given to Adam and Eve. The preservation of lineage is also greatly emphasized by the Islamic Shariah and the Cairo declaration of human rights in Islam also supported the protection of lineage in Islam.

  1. Social Aspect

There are four Purusharths, object of human pursuit which refer to four proper goals or aims of a human life. The four purushuarths are Dharma (righteousness, moral values) Artha (prosperity, economic values), Kama (pleasure, love, psychological values) and Moksha (liberation, spiritual values, self-actualization). When a convict is suffering to live in prison, he/she is deprived to perform the abovementioned purusharths, among them, 3 of four purusharths, i.e. Dharma, Artha and Moksha are to be performed alone, however, in order to perform/exercise/pursue the fourth Purushartha, i. e. Kama, the convict is dependent on his/her spouse in case he/she is married. At the same time, the innocent spouse of the convict is also deprived to pursue the same. 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. Hindu philosophy also advocates the importance of pitra – rin, i.e. parental debt. 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.

  1. Legal Aspect

The Court relied on judgment Jasvir Singh v. State of Punjab, 2015, Cri LJ 2282 and observed that Article 21 of the Constitution guarantees that no person shall be deprived of his life and personal liberty except according to procedure established by law. It includes within its ambit the prisoners also.

The Court thus observed that the spouse of the prisoner is innocent and her sexual and emotional needs associated with marital lives are effected and in order to protect the same, the prisoner ought to have been awarded cohabitation period with his spouse.

The Court thus held “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 guaranted by the Constitution of India and while exercising extra ordinary power vested in it, this Court deem it just and proper to allow the instant writ petition.”[Nand Lal v. State, 2022 SCC OnLine Raj 678, decided on 05-04-2022]


Appearances:

For Petitioner(s) : Mr. K.R. Bhati

For Respondent(s) : Mr. Anil Joshi


Arunima Bose, Editorial Assistant has reported this brief.

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