Conjugal rights for Indian prisoners

In recent times, with the rising number of human rights advocates, the idea of Reformative
theory of punishment is being highlighted. What this theory states is that the ultimate
objective of a penal system should be to reform the culprit, so that when he goes out into the
real world he is seen as an asset to the society. While the concept of the theory is laudable, its
implementation is a lot more complex. However, we live in a country where the institution of
family plays a very important role both in forming and reforming a person. Hence, going by
that logic, allowing conjugal visitation rights to the prisoners can be seen the solution.
While the national jurisdictions across the world have their own way of implementing these
rights, India is yet to have any law or regulation concerning conjugal rights. Due to which the
advocates in favour of these rights urge the Courts to interpret it under the broad array of
article 21. This article is an attempt to analyse of the problem, as well as to outline the boons
and bane it possesses. Finally, with references to the recent judgement such as of Madras
High Court, we have tried to form an analytical conclusion.
In the simplest terms, conjugal rights are rights of husband and wife arising out of marriage,
which include right to society and right to marital intercourse. In today’s time there is an
increasing need for the prisoners to also exercise these rights of conjugal visitations. Conjugal
visits are judicially ordered rights to a prisoner to have a meeting with their legal spouse
where they may get sexually involved. The time limit of which may extend to few hours or
certain days.
In the recent case of Jasvir Singh and Ors v. State of Punjab and Ors,1 where the petitioners,
a couple, who had been earlier sentenced to death by trail court, but now the wife whose
punishment was shifted to life imprisonment appealed the court for their conjugal rights to
procreate. The main issue here revolved around whether Article 21 which takes about right to
life, will also include conjugal visitation rights and right to procreate or not.
This case turned out to be a waking up call for Indian legislation and highlights the need for
reformative theory of punishment in reference with human rights.
Another landmark judgement would be Maharaj v. State of Tamil Nadu,2 where the suer is
the wife of an inmate who has been sentenced to life imprisonment, appealing for his leave so
that he can assist her in infertility treatment. Here, the court emphasized on the importance of
family bonds in India stating that, “Just because a person is a prisoner he cannot be deprived
of his right to dignity in a society”.
Hence inclusion of Conjugal rights under the purview of Article 21 has been backed up by
judicial judgements.
In Bhuvan Mohan Patnaik and Others v. State of Andhra Pradesh and Others, 3 the Supreme
Court ruled that “convicts are not completely stripped of their fundamental rights, even
though incarceration denies certain fundamental rights, such as the right to move freely,
engage in a profession of their choice,” and so on. Despite this, the convicted person retains
his or her right to other fundamental protections, such as Article 21.

1
Crl. Misc. No. M-19376 of 2020
2
SLP (Crl.) No.2270 of 2008
3
1975 SCC (3) 185, 1974
The prisoner's spouse should be able to address the question of whether or not conjugal visits
are desirable. Forbidding a spouse from having conjugal visits violates both their civil and
human rights.
In India, jail reforms and prisoners’ rehabilitation have never been a priority. As a result of
which, the convicts are clueless as to how to live a life outside prison.
Conjugal visitation would help in maintaining a heterosexual orientation for those who are
concerned about homosexuality.4it will not only reduce it but will also protect the family
bond. It will also be beneficial in problems relating to sexual assaults. Some prison guards
also point out that these visits would provide for a better discipline and an incentive for
inmates to do better.
However, as rightly stated that the sexual relationship must take place in the sanctity of the
house and not in a prison cubicle5also stands true. Allowing for these visits to take place
would require a financial and administrative effort. Indian prisons are understaffed with no
proper infrastructural requirements.
If we compare India with other, so in countries like US, so the convicts there are even
allowed to marry. For conjugal visits, the couple is granted an apartment to reside in.
Whereas, if we at France, spouses can see their convicts twice a week, while Sweden being
the most liberal country, allowing spouses to visit each other on one Sunday every month
even permitting home leaves. The rationale for granting inmates conjugal privileges there is,
to aid in rehabilitation and reduce stress.
Not allowing the prisoners to exercise their marital rights is throwing them the wrong
direction. For the sake of humanity and for the sake of these four concrete walls of prison to
be little more rehabilitative, conjugal visiting rights should be allowed. However, there will
more investigation needed before an appropriate environment for inmate sexual expression
can be made, but this is just the beginning. While there are both pros and cons of such rights,
but the cons are mostly concerned with either lack of administration or moral considerations
rather than facts or logic. Hence, there is a need for strategic implementation. Therefore,
considering all the facts we believe that issues like conjugal rights specifically for prisoners is
a need of the hour.

4
Norman Eliot Kent, Legal and Sociological Dimensions of Conjugal Visitation in Prisons, 2(47) NEW ENG. J.
PRISON. L, 58 (1975).
5
Joseph K. Balough, Conjugal Visitations in Prisons: A Sociological Perspective, 28 FED. PROBATION. J, 57
(1964).