The right to have progeny during incarceration is available to a prisoner, and the court may consider religious, cultural, sociological, and humanitarian aspects, as well as the fundamental rights guaranteed by the Constitution of India, in allowing emergent parole for this purpose.

ORDER

1. The instant writ petition is filed by convict-prisoner Rahul through his wife Smt. Brijesh Devi seeking emergent parole on ground of want of progeny under Rule 11 of the Rajasthan Prisons (Release On Parole) Rules, 2021 read with Article 14 and 21 of the Constitution of India. Petitioner was convicted for the offence under Sections 363, 366 and 376 (3) of IPC and 3/4(2) of POCSO Act and sentenced to 20 years imprisonment vide order dated 13.06.2022 in Sessions Case No. 29/2021.

2. It is submitted that the petitioner has served more than two years of imprisonment with remission. The petition has been filed through petitioner’s wife for releasing him on emergent parole, for want of progeny and conceiving child for the purpose of preservation of lineage, as per religious and cultural philosophies and for humanitarian aspects. The conduct of the petitioner is satisfactory and if not allowed to be released or parole, his rights under Article 14 and 21 of the Constitution of India, will be affected. Learned counsel has relied upon the Division Bench judgment of Nand Lal Vs. State & Ors.: DB. Cri. Writ Petition No. 10/2022, which has been upheld by the Hon’ble Apex Court, wherein the Division Bench of this Court observed that:-

"The court had ruled that the ’right to procreation survives during incarceration’ and ’is traceable and squarely falls within the ambit of Article 21 of our Constitution’. It had then directed the Punjab government to constitute a Jail Reforms Committee, to be headed by a former high court judge. Among other things, this committee was to ’formulate a scheme for creation of an environment for conjugal and family visits for jail inmates and identify the categories of inmates entitled to such visits, keeping in mind the beneficial nature and reformatory goals of such facilities’.

In view of the fact 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. Thus, viewing from any angle, it can safely be concluded that the right or wish to have progeny is available to a prisoner as well subject to the peculiar facts and circumstances of each case. Simultaneously, it is also found apposite to hold that the spouse of the convict-prisoner cannot be deprived of his or her right to get progeny.

As an upshot of the observations made herein above, we are of the considered view that 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."

3. Per contra, counsel for the State has opposed the present petition and submitted that the present petitioner was convicted under POCSO Act for offences that are grievous in nature. Learned counsel contends that if the petitioner is released on parole, it would adversely affect the society and there is a possibility of conflict/quarrel between the petitioner and the complainant. Learned counsel further submitted that in Rajasthan Prisons (Release On Parole) Rules, 2021, there is no provision for releasing the petitioner on emergent parole on the ground of want of progeny.

4. Heard the arguments advanced by both the sides and scanned the record of the writ petition.

5. The Division Bench of this court, in Nand Lal (supra), has already dealt with the issue involved in the present petition and held that right or wish to have progeny is available to a prisoner. In the case in hand, considering the peculiar fact that petition is filed by the young wife of the convict, who is issueless and is desirous of retaining/