The High Court has held that convicts do not have fundamental right to conjugal relationship as a matter of course though such right is available for specific purposes like fertility treatment.

A Court held that denial of conjugal relationship of the convict for specific purpose may amount to denial of the fundamental right guaranteed under Article 21 of the Constitution.

"The specific purpose may be infertility treatment or some similar reason, but it should not be construed to be a fundamental right for having conjugal relationship as a course. This would make a difference between the law abider and violator in regard to rights guaranteed under Article 21 of the Constitution of India," the Court held.

Thus, found that undergoing infertility treatment to beget a child fell under the category of “extraordinary reasons” for grant of leave.

Two questions were before the Bench for consideration:

i) Whether the denial of conjugal rights to a convict prisoner would amount to denial of such a right to his/ her spouse and thereby, violative of Article 21 of the Constitution of India? and

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?

The Division Bench was faced with the issue when the wife of a detenu moved the Court seeking temporary leave for the convict with the aim of having a conjugal relationship since the couple did not have a child and were advised infertility treatment.

This plea was accepted and the convict was granted two weeks of temporary leave. However, when the petitioner approached the Court again seeking an extension of six weeks, the matter was referred to a larger Bench.

While discussing the inclusion of the right under the ambit of Right to Life under Article 21, the Court discussed a judgment of the Punjab & Haryana High Court in Jasvir Singh v. State of Punjab where it was held that conjugal rights of a prisoner fell under the fundamental right guaranteed under Article 21.

Further, it was noted that a similar view was expressed by the Patna High Court in Rajeeta Patel v. State of Bihar.

With this, the Bench noted that the denial of conjugal relationship sought for a specific purpose may amount to denial of a fundamental right under Article 21.

However, the same cannot be a construed as right to having conjugal relationship as a course.

“If leave for having conjugal relationship is recognized to be a right under Article 21 of the Constitution of India, the prayer of similar nature can be made by the accused or his/her spouse time and again to have conjugal relationship,” the Court said.

This observation came on the Bench’s concern that if the right is recognised as a fundamental right, convicts would make frequent applications without restraint.

To determine the second issue, the Tamil Nadu Suspension of Sentence Rules were examined. The Bench opined that the facts of the present case formed an extraordinary reason for grant of leave. However, the Rule could not be invoked in all situations or time and again.

“A convict cannot enjoy all the liberties as are available to a common person, otherwise there would no difference between a law-abiding citizen and a law-violating prisoner,” said the Bench.

With this, the registry was directed to place the papers before the roster Bench for disposal of this case.