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  • Kamlesh

Creation of Progeny as a Fundamental Right to the Prisoner: An Evolving Jurisprudence


Conjugal right is an acknowledged intrinsic right of a married couple in society and contains within itself the right of a couple to associate together, construct a house together and enjoy all the pleasures of an interpersonal connection together including the right to have ‘sex’ and ‘procreation’. In India, the law on the notion of marital rights is still in its infancy. There is no statutory legislation that addresses or gives conjugal rights to inmates. In the absence of such, Article 21 of the Constitution mandates that inmates knock on the doors of the courts.

In the recent case of the Rajasthan High Court, the Court took a progressive approach and released the prisoner on parole based on religious, philosophical, cultural, sociological, and humanitarian considerations as coupled with the fundamental right, despite there being no express provision in the Rajasthan Prisoners Release on Parole Rules, 2021.

Interpretation by the Courts and Constitutional Framework

All prisoners shall enjoy the human rights and fundamental freedoms outlined in the Universal Declaration of Human Rights, the International Covenant on Economic, Social, and Cultural Rights, and the International Covenant on Civil and Political Rights which the state concerned is a party. However, those freedoms will be subject to the restrictions that are required by the fact of confinement. India has signed both the Covenants and the Universal Declaration of Human Rights. These rights are protected by the fundamental rights and the Directive Principles of State Policy of government that are established in our Constitution.

According to Article 21 of the Constitution, no one may be deprived of their life or personal freedom without doing so in accordance with a legal process. The inmates are also included in its scope. In the case of D. Bhuvan Mohan Patnaik and Others v. State of Andhra Pradesh & Ors, the Supreme Court ruled that convictions cannot prevent a person from exercising basic rights that they would otherwise be entitled to.

Important legal issues involving the inmates’ conjugal rights were raised in the 2015 case of Jasvir Singh and Others v. State of Punjab. The right to procreate “survives throughout detention,” according to the court, and “is traceable and fits within the purview of Article 21 of our Constitution.” The Punjab government was then told to organise a Jail Reforms Committee, under the leadership of a former high court judge. This group was tasked with, among other things, “developing a plan for establishing a setting for conjugal and family visits for detainees and identifying the types of detainees eligible for such visits, bearing in mind the positive nature and reformatory purposes of such facilities.”

Contemplating the Right of Progeny Through the Interpretive Lens of Religious and Social Aspect

Through a unique and creative interpretation, the Hon’ble Rajasthan High Court made a fundamental shift while delving into these aspects. The Court noted that having descendants for the sake of maintaining a lineage has been acknowledged by numerous legal rulings, Indian culture, and religious philosophies. The goal of parole is to allow the criminal to peacefully reintegrate into society following their release. Even though the wife of the prisoner hasn’t broken any laws and isn’t facing any penalty, she has been denied the opportunity to have children. Therefore, denying the convict-prisoner the ability to have a conjugal relationship with his wife, especially for the goal of procreation, would be detrimental to her rights.

Acquiring the wealth of the womb is the first of the 16 sacraments, to the Hindu philosophy of Garbhadhan. The phrase “Be fruitful and multiply and fill the Earth” is part of the cultural commandment in Judaism, Christianity, and various other Abrahamic faiths. Adam and Eve were given a cultural mission. Islamic Shariah places a strong emphasis on the maintenance of lineage, and the Cairo Declaration on Human Rights in Islam endorsed this position.

The Hon’ble Court examined the idea of human Purusharth, objectives of human pursuit that refer to four appropriate purposes or ends of human existence while taking into account the social aspect. Dharma (righteousness, moral values), Artha (prosperity, economic values), Kama (pleasure, love, psychological values), and Moksha are the four Purushuarths (liberation, spiritual values, self-actualization). When a prisoner is forced to endure life behind bars, he or she is denied the opportunity to practise the aforementioned Purusharths. Of these, three—Dharma, Artha, and Moksha—are to be practised alone; however, the fourth Purushartha, Kama, requires the prisoner to rely on his or her spouse, if they are married. Additionally, the innocent spouse of the convicted person is prevented to pursue the same. The State has a greater obligation when the innocent spouse is a woman who wants to have a child for the completion of womanhood.

Reasons Supporting or Opposing Conjugal Rights of Inmates

“Homosexuality” is one of the main issues the prison system faces. Some writers support the idea that if inmates have access to more personal relationships, the issue and stress around homosexuality may be greatly diminished. However, there are two main arguments made against this point of view. Firstly, that prison homosexuality is not related to heterosexual deprivation but rather is an expression of people’s urge for mastery when they are placed in a position of powerlessness. Secondly, the frequency of heterosexual activity is so low that it will have only a minor or insignificant impact.

The fact that conjugal association aids in altering and shaping the prisoner’s conduct is another argument in its favour. There is a normalising impact from forging relationships with the family. This behavioural shift will lessen the likelihood of violence in jail and will help the prisoner get ready for a successful re-entry into society after his release. Despite the Court’s recent proclivity, it is often noted that society has no moral duty to offer prisoners the right to sexual licence, and it is a clear consequence of imprisonment that a prisoner should not be allowed to engage in conjugal relations or have children.

Enabling conjugal visits would also result in a one-parent household for some time before the prisoner is let out. This is another societal concern brought up in opposition to permitting convicts to form a conjugal association. When both partners are serving time in prison and conjugal association is permitted, this question is made even more difficult. The crucial concern in these situations is what is in the “best interest of the unborn child.”


Conjugal rights are a relatively new notion in Indian law, which is constantly developing. Our constitutional courts have often observed that the general atmosphere and current infrastructure do not sustain emerging measures. However, with the times changing and society becoming more aware of human rights, it is necessary to modify how we see prisoners as well. In this light, the trend of giving parole to convicts for the conjugal association is welcoming, because ultimately the wife of the prisoner has to be deprived of her right to have progeny whilst she has not committed any offence and is not under any punishment.

The idea of permitting conjugal visits in prisoners has to be thoroughly researched. The High Court of Punjab and Haryana acknowledged that policymakers should develop an efficient implementation method for matters like permitting conjugal visits in prisons since these concerns fundamentally come within their purview. It is high time for all the stakeholders of prison administration, the legislature and the judiciary to discuss and formulise the policy for the conjugal rights of prisoners.


This article has been authored by Kamlesh, a fifth-year student at National Law University, Jodhpur (NLUJ). This blog is a part of RSRR’s Rolling Blog Series.


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