Right time for Government to explore possibility of Conjugal Visits for Prisoners: Madras HC

In an order passed recently, the Madurai Bench of the Madras High Court made some pertinent observations regarding the need to implement a scheme for conjugal visits in prisons..A Division Bench of Justices S Vimala and T Krishnavalli urged the Government to take up the issue, while disposing of a Habeas Corpus Petition..Factual Background.A lady had approached the High Court praying that her husband, a life convict, be granted leave for 30 days to assist her in infertility treatment to be undergone by her..Following the Court’s direction to consider a similar representation made earlier, the Prison authorities had declined to grant leave on grounds that the personal life of the detenue will be put to danger. This, it was argued, was evident from the report of the Probation Officer. Neither the Probation Officer, nor the Police Inspector had recommended the leave. On an examination of the facts at hand, the Court found no logical basis for these apprehensions..Another objection made by the State was that there was no provision in the Jail Manual for the grant of leave on the ground stated by the petitioner i.e. assistance in fertility treatment..The Court, however, noted that the seventh ground for suspension of a sentence under Rule 20 of the Tamil Nadu suspension of Sentence Rules, 1982 is ‘any other extraordinary reason’. The Court held that the present case fell within the scope of this ground. The Court further opined that in any case, Article 21 would be available to the Court to consider the claim made by the wife-petitioner..“In the absence of any other rule, providing for release of prisoner for the purpose of procreation of a child with the available law, it must be interpreted that the request is covered under extraordinary reasons. Even assuming that this reason is not extraordinary, Article 21 of the Constitution of India would very much available for this Court to consider the claim made by the wife.“.The Court also noted that, the wife, not being under incarceration, is a “suffering person outside the prison on account of the marital relationship with the prisoner and her legitimate expectation to have a child cannot be declined.”.The Court, therefore, allowed the suspension of sentence of the detenue for the required period, as per the State rules prevailing in this regard. The Court also stated that further leave may be granted depending on whether further time is required for the petitioner’s fertility treatment..Government should explore possibility of providing facilities for conjugal visits.While passing the order, the Court also deliberated on the importance of allowing conjugal visits for prisoners, in following the reformatory theory of punishment. In this context, the Court made several observations endorsing the allowance of conjugal visits for prisoners..“…psychologists and psychiatrists believe that the frustration, tension, the ill feelings and heart burnings can be reduced and a human being can be better constructed if they are allowed conjugal relationship even rarely….…while considering the merits and demerits of allowing conjugal visits or permitting leave for the purpose of artificial insemination, the advantages are more than the disadvantages..Conjugal visit leads to strong family bonds and keep the family functional rather than the family becoming dysfunctional due to prolonged isolation and lack of sexual contact.”.Notably, the Court also alluded to the deprivation of conjugal rights as a reason for sexual intercourse between the same gender leading to HIV/AIDS..“It is also reported that there are innumerable cases of HIV / AIDS in jails, because of sexual intercourse in between the same gender. This evil is happening because of deprivation of conjugal relationship for a prisoner.”.In these circumstances, the Court opined that the Government should look into the viability of providing facilities for conjugal visits in prisons, after due deliberation. In this regard, the order states,.“Therefore, it is a right time that the Government should constitute a committee to consider the possibility of providing conjugal visit and analyze the merits and demerits of permitting conjugal visits and to provide the facility for conjugal visits to eligible prisoners subject to the precautions/safety measures to be taken.”.Read Order below.