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IN THE HIGH COURT OF JUDICATURE AT MADRAS
MR. MUNISHWAR NATH BHANDARI, PUSHPA SATHYANARAYANA, P.D.AUDIKESAVALU, JJ.
Meharaj - Petitioner
Vs.
The State, rep. by its Secretary to Government of Tamil Nadu Home Department, Fort St. George – Respondent
H.C.P. (MD) No.365 of 2018
Decided On : 20-01-2022
CONJUGAL RIGHTS - PRISONER - Tamil Nadu Suspension of Sentence Rules, 1982 - Rule 3, 6, 7, 20 to 25 - The court considered whether denial of conjugal rights to a convict prisoner would amount to denial of such a right to his/ her spouse and whether the State can be directed to favorably consider the request of a convict prisoner for emergency leave or ordinary leave for the purpose of having conjugal relationship with his/her spouse. The court analyzed the provisions of the 1982 Rules and the interpretation of Article 21 of the Constitution of India in relation to conjugal rights of a convict. It held that while denial of conjugal relationship for a specific purpose may amount to denial of the fundamental right guaranteed under Article 21, it should not be construed as a fundamental right for having conjugal relationship as a course. The State can be directed to consider the request of a convict for emergency leave or ordinary leave for the purpose given under the 1982 Rules, and the emergency leave or ordinary leave would be for the purpose given under the rules and cannot be claimed as a right for having conjugal relationship without an exceptional reason.
Fact of the Case:
The petitioner's husband, a convict serving life imprisonment, sought leave for conjugal relationship with his wife for infertility treatment. The Division Bench granted temporary leave, but the State sought review of the order. The matter was referred to a Larger Bench to consider the denial of conjugal rights to a convict and the State's obligation to consider requests for emergency or ordinary leave for conjugal relationship.
Finding of the Court:
The court found that denial of conjugal relationship for a specific purpose may amount to denial of the fundamental right guaranteed under Article 21, but it should not be construed as a fundamental right for having conjugal relationship as a course. The State can be directed to consider the request of a convict for emergency leave or ordinary leave for the purpose given under the 1982 Rules, and the emergency leave or ordinary leave would be for the purpose given under the rules and cannot be claimed as a right for having conjugal relationship without an exceptional reason.
Issues: The issues involved the denial of conjugal rights to a convict, the State's obligation to consider requests for emergency or ordinary leave for conjugal relationship, and the interpretation of Article 21 of the Constitution of India in relation to conjugal rights of a convict.
Ratio Decidendi: The denial of conjugal relationship for a specific purpose may amount to denial of the fundamental right guaranteed under Article 21, but it should not be construed as a fundamental right for having conjugal relationship as a course. The State can be directed to consider the request of a convict for emergency leave or ordinary leave for the purpose given under the 1982 Rules, and the emergency leave or ordinary leave would be for the purpose given under the rules and cannot be claimed as a right for having conjugal relationship without an exceptional reason.
Final Decision: The court answered the questions by holding that denial of conjugal relationship for a specific purpose may amount to denial of the fundamental right guaranteed under Article 21, but it should not be construed as a fundamental right for having conjugal relationship as a course. The State can be directed to consider the request of a convict for emergency leave or ordinary leave for the purpose given under the 1982 Rules, and the emergency leave or ordinary leave would be for the purpose given under the rules and cannot be claimed as a right for having conjugal relationship without an exceptional reason.
ORDER :
MUNISHWAR NATH BHANDARI, ACJ
A Division Bench passed an order on 25.2.2019 referring the following two questions for consideration by a Larger Bench:
(ii) Whether the State can be directed to favourably consider the request of a convict prisoner for emergency leave or ordinary leave for the purpose of having conjugal relationship with his/her spouse, though the Tamil Nadu Suspension of Sentence Rules, 1982 do not envisage this?
2. The reference of the questions has been in view of the order of Division Bench dated 11.1.2018 granting temporary leave for a period of two weeks to the convict. The said petition was preferred by Meharaj, wife of the detenu Siddhiqe Ali @ Sulthan, to grant leave to the convict for 30 days to have conjugal relationship, as they were not having child from the wedlock and the petitioner was advised to have infertility treatment along with her husband. The Division Bench in the said order gave general directions to the State to favourably consider the request of the prisoners to have conjugal relationship with their spouse. The prayer made in the habeas corpus petition was accepted granting temporary leave to the convict for a period of two weeks from 20.1.2018 to 3.2.2018. For the said period, the sentence was suspended and, accordingly, respondents 3 and 4 therein were directed to release the husband of the petitioner subject to certain conditions. Aggrieved by the said order dated 11.1.2018, the State filed Crl.M.P.(MD) No.832 of 2019 seeking review the said order.
3. While the application was pending, H.C.P. (MD) No.365 of 2018 was filed by the petitioner seeking six weeks leave to her husband by relying upon the order dated 11.1.2018. The Division Bench, vide the order of reference dated 25.2.2019, noticed that there is no provision in the Tamil Nadu Suspension of Sentence Rules, 1982 (for brevity, "the 1982 Rules") for grant of emergency or ordinary leave for a convict to have conjugal relationship with spouse. Under those circumstances, the matter was referred to the Larger Bench to answer the questions framed and quoted above.
4. Before answering the questions framed by the Division Bench, it would be appropriate to refer to the brief facts of this case. The petitioner's husband, Siddhiqe Ali @ Sulthan, was convicted to life imprisonment on commission of offences under Sections 148, 302, 201 and 120B of the Indian Penal Code. The order of the trial court was confirmed by the High Court in Criminal Appeal Nos.1736 and 1807 of 2003 and also by the Apex Court in Criminal Appeal Nos.2118 and 2119 of 2009.
5. The petitioner's husband and other persons are alleged to have committed murder and hence a case was registered bearing Crime No.59 of 1999. After getting bail in the above crime number, the petitioner's husband is stated to have been involved in the Coimbatore Bomb Blast case, apart from many other cases in Tamil Nadu and Kerala. The details of those cases have been given in the affidavit filed by the respondents and are quoted hereunder for ready reference:
| Sl.No. | S.C.No. | Offence | Sentence |
| 1 | S.C.No.140 of 2000 on the file of Fast Track Court, Thiruchirapalli | U/s 302 IPC
| Life Imprisonment
|
|
|
| U/s 120(B) IPC r/w section.3 of Explosive Substance Act 1908 | Convicted and sentenced to undergo R.I. for 8 years. |
|
|
| U/s.120(B) IPC r/w 4(a) of Explosive Substances Act 1908 | Convicted and sentenced to undergo R.I. for 6 years. |
| 2 | S.C.No.8 of 2003 on the file of District and Sessions Judge, Sessions Court for Exclusive Trial of Bomb Blast Cases, Chennai at Poonamallee. | U/s.120(B) IPC r/w 4(b) of Explosive Substances Act 1908 | |
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