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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Augustine George Masih, Jasjit Singh Bedi, JJ.
Neha - Appellant
Versus
State Of Haryana - Respondent
CRWP-2526-2021
Decided On : 27-01-2022
Parole - Conjugal Relations - The Haryana Good Conduct Prisoners (Temporary Release) Amendment Act, 2013, The Haryana Good Conduct Prisoners (Temporary Release) Amended Rules, 2015 - Jasvir Singh's case (supra) - Section 302, 307, 34 of IPC, Section 25 of the Arms Act, Section 392/34/120-B IPC, Section 25 of Arms Act - Article 21 of the Constitution of India
Fact of the Case:
The petitioner sought parole for her convict husband to enable conjugal relations for procreation. The husband was convicted under various sections of IPC and Arms Act and was in custody. The parole application was rejected based on the husband's status as a hardcore criminal.
Finding of the Court:
The court found that the right to procreation survives incarceration and falls within the ambit of Article 21 of the Constitution of India. The court also noted that the right to maintain conjugal relations by a convict is not an absolute right and is subject to reasonable restrictions, social order, and security concerns.
Issues: The issues included whether the right to procreation survives incarceration, whether penological interest permits creation of facilities for the exercise of right to procreation during incarceration, and whether the right to life and personal liberty includes the right of convicts to have conjugal visits or artificial insemination.
Ratio Decidendi: The court held that the right to procreation survives incarceration and falls within the ambit of Article 21 of the Constitution of India. It also emphasized that the right to maintain conjugal relations by a convict is subject to reasonable restrictions, social order, and security concerns.
Final Decision: The petition was dismissed, and the petitioner was directed to apply for parole in accordance with the provisions contained in Section 3(1)(d) of the 1962 Act, subject to the conditions prescribed under the Statute. The petitioner was also allowed to await the formulation of a Policy by the Jail Reforms Committee and apply thereafter.
JUDGMENT
ORDER
Jasjit Singh Bedi, J. - The prayer in the present petition filed by Neha W/o Gaurav @ Sonu Kataria is for the grant of parole to her convict husband to enable them to have conjugal relations for procreation with an alternative prayer to allow them to procreate/maintain conjugal relation within the jail premises.
2. The brief facts of the case are that the husband of the petitioner namely Gaurav @ Sonu Kataria was convicted in FIR No.298 dated 27.07.2016 registered under Sections 302, 307, 34 of IPC and Section 25 of the Arms Act at Police Station Rajendra Park, Gurugram vide judgment dated 31.05.2018 and sentenced to life imprisonment.
3. The said Gaurav @ Sonu Kataria was also convicted in FIR No.642 dated 16.07.2016 registered under Sections 392/34/120-B IPC and 25 of Arms Act, at Police Station City Gurugram, District Gurugram vide judgment dated 22.01.2020 and sentenced to life imprisonment till the remainder of his life without remission.
4. The petitioner got married to the said Gaurav @ Sonu Kataria on 17.04.2016 and on 10.08.2016, the husband of the petitioner was arrested and has been in custody ever since.
5. The application was moved for parole for consummation of the matrimonial relationship on 19.11.2020 and the same was rejected by respondent No.2 i.e. Jail Superintendent, District Jail, Gurugram vide order dated 09.12.2020 (Annexure P-2). As per the impugned order, the husband of the petitioner came under the hardcore criminal category and therefore was not entitled to grant of parole in terms of The Haryana Good Conduct Prisoners (Temporary Release) Amendment Act, 2013, keeping in view The Haryana Good Conduct Prisoners (Temporary Release) Amended Rules, 2015.
6. The petitioner has challenged the aforementioned order dated 09.12.2020 (Annexure P-2) by way of filing of the present petition.
7. The primary contention of the petitioner's counsel was that in terms of the judgment of this Court in "Jasvir Singh & Anr. Vs. State of Punjab & others, 2015 (1) RCR (Criminal) 509" a question was framed as to whether penalogical interest of the State permits or ought to permit creation of facilities for the exercise of right to procreation during incarceration and whether the said right is termed as 'right to life' and 'personal liberty' guaranteed under Article 21 of the Constitution of India. The prima facie, opinion of this Court at the time of preliminary hearing on 17.03.2021 was that the right to life and liberty under Article 21 extended to the right of the petitioner to procreate through conjugal relations with her convict husband. Therefore, notice of motion was issued on 17.03.2021, recording these reasons.
8. The matter was taken up from time to time and ultimately, a reply was submitted by the Additional Chief Secretary to Government of Haryana, Jails Department on 30.09.2021. The contention of the State was that the husband of the petitioner being a hardcore prisoner with multiple convictions and pending FIRs was not entitled to the relief as prayed for. The State further contended that in terms of Para 93 of the judgment in Jasvir Singh's case (supra), the right available for conjugal visit of a married and eligible convict was subject to those conditions as prescribed under the Statute and that in terms of the directions issued in Jasvir Singh's case (supra), the State of Haryana had constituted a Jail Reforms Committee on 27.09.2021. Thus, it was contended that the husband of the petitioner could avail parole for the purpose sought in terms of Para 93 subject to the conditions of The Haryana Good Conduct Prisoners (Temporary Release) Amendment Act, 2013 or he could await the instructions to be issued by the Jail Reforms Committee and could thereafter apply, if so eligible, as per the Scheme to be formulated by the Jail Reforms Committee. Thus, the State contended that the right to maintain conjugal relations by a convict was not an absolute right.
9. Before we proceed in the matter, it would be releva
The right to procreation survives incarceration and falls within the ambit of Article 21 of the Constitution of India, but the right to maintain conjugal relations by a convict is subject to reasonab....
The main legal point established in the judgment is that the right to procreate is a fundamental right of a convict in certain circumstances, and the convict is entitled to parole for medically-assis....
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 conj....
The conviction for a serious or heinous crime by itself cannot operate as an absolute bar for denying parole to the prisoner who has otherwise acquired eligibility for release on parole.
Parole cannot be denied solely based on the nature of the crime if the convict exhibits good conduct and a tendency to reform, ensuring the maintenance of family ties is critical.
Parole cannot be denied solely based on objections from the victim's family; solid evidence is required to substantiate claims of danger or public disorder.
The court established that maintaining family ties is a significant ground for granting parole, even for life convicts, and criticized the outdated nature of existing parole rules.
The main legal point established in the judgment is the importance of enabling prisoners, particularly TADA convicts, to maintain family and social ties, and the criticism of mechanical rejection of ....
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