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Conjugal visits helped reduce recidivism, motivated prisoners to be good and helped maintain relations with family, the Madras HC observed.

Sex with spouse reproduction are prisoners rights Madras HC grants man 2-week leaveMadras High Court. Photo by Milei.vencel/Wiki Commons
news Court Thursday, January 25, 2018 - 17:43

A man serving life term at Palayamkottai Central prison in Tamil Nadu’s Tirunelveli was granted a two-week leave by the Madras High Court for the “purpose of procreation”.

Siddique Ali, a 40-year-old man, was given a fortnight off by a division bench of Justices S Vimala Devi and T Krishna Valli after a Habeas Corpus petition was filed by his wife, who is 32.

The woman had approached the court in 2017 requesting that Siddique be given leave for 60 days so that he could help out with the infertility treatment. However, her request was declined in September after the probation officer deemed Siddique’s life to be in danger and did not recommend the leave.

This compelled Siddique’s wife to move court once again.

Granting leave to Siddique now, the court said, “The convict's wife's legitimate expectation to have a child cannot be declined.” It added that prisoners could be given leave for “extraordinary reasons”.

“Providing for release of prisoner for the purpose of procreation of child with available law can be done. It can be interpreted as a request covered under extraordinary reason,” the bench said.

“The wife / petitioner is aged 32. The prisoner is undergoing imprisonment (life) and he is in custody for a period of 18 years. The fact remains that they are not blessed with a child, may be because the husband is not at all living with his wife. The doctor has given assurance to the wife that with the help of infertility treatment, it is possible to beget a child,” the court said.

The judges also pointed out that the Centre had passed a resolution which deemed conjugal visits a prisoner’s right, not privilege. These visits, they noted, helped reduce recidivism, motivated them to be good prisoners and also helped maintain relations with family members.

They quoted a Supreme Court judgment from 1978. It said, “Whether inside prison or outside, a person shall not be deprived of his guaranteed freedom save by methods, right, just and fair.”

The bench stressed on a reformative approach and also asked for the government to set up a committee which could consider allowing for conjugal visits and analysing their merits and demerits so that the same could be facilitated for eligible prisoners.

“The psychologists and psychiatrists believe that the frustration, tension, the ill feelings and the heart burnings can be reduced and a human being can be better constructed if they are allowed conjugal relationship even rarely. Therefore, 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,” observed the court.

While heeding Siddique’s wife’s plea and allowing him two weeks leave, the court also said that if a preliminary medical investigation showed that it was possible for them to get a child after further treatment, it could consider extending his leave by two more weeks.

Here are some excerpts from the court order.

“The wife / petitioner is aged 32. The prisoner is undergoing imprisonment (life) and he is in custody for a period of 18 years. The fact remains that they are not blessed with a child, may be because the husband is not at all living with his wife. The Doctor has given assurance to the wife that with the help of infertility treatment, it is possible to beget a child.”

“The concept of reformative theory is best, as it says that the human being to be reformed would become the productive member of the society. If that is to be done, prisons have to be transformed as homes for the purpose of giving training morally as well as intellectually, so that the prisoners are denuded of the qualities of a criminal. The psychologists and psychiatrists believe that the frustration, tension, the ill feelings and the heart burnings can be reduced and a human being can be better constructed if they are allowed conjugal relationship even rarely. Therefore, 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.”

“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.”

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