It is humbly submitted before the Hon’ble Supreme Court of Zendia that granting conjugal rights
to prisoners is a humane and pragmatic approach that aligns with the principles of justice and
rehabilitation. Incarceration, while serving as a punitive measure, should not strip individuals of
their fundamental human rights, including the right to maintain family bonds. Allowing conjugal
visits acknowledges the importance of familial connections in the rehabilitation process. Studies
suggest that maintaining family ties during imprisonment can significantly contribute to a
prisoner's mental well-being and reduce the likelihood of reoffending upon release. By providing
a space for conjugal relationships to persist, we promote a more constructive environment within
correctional facilities. This approach recognizes the inherent dignity of prisoners and emphasizes
their potential for transformation. Additionally, conjugal rights foster a sense of responsibility,
encouraging prisoners to maintain stability in their personal lives and providing them with a
tangible incentive to adhere to rules and regulations within the prison system.
For example:
An inmate at a central prison in Tamil Nadu’s Tirunelveli district was recently granted a two-
week conjugal visit for the “purpose of procreation”. The Madras High Court granted leave to
the convict who is serving a life term by invoking laws in several countries that allow such a
visit, as well as a resolution by the Centre that conjugal visits are a right and not a privilege1.
A conjugal visit is a scheduled visit where an inmate is allowed to spend time with their legal
spouse. The duration of the visit may stretch from several hours to several days wherein the
meeting parties may engage sexually.2
A division bench of the high court presided by Justices S Vimala Devi and T Krishna Valli
awarded the temporary leave to Siddique Ali, 40, an inmate of Palayamkottai Central Jail after
he had submitted a habeas corpus petition along with his wife.3
Conjugal visit is a modern-day concept adopted by countries like Canada, Germany, Russia,
Spain, Belgium, Spain, Saudi Arabia, and Denmark and, to some extent, the US. Brazil and
Israel even allow same-sex conjugal visits.
The idea is being slowly but progressively adopted by countries worldwide on the widely agreed
grounds that conjugal visits are an important factor in preserving family bonds and reducing
tendencies in prisoners to commit break prison rules and regulations. Psychologists,
psychiatrists, prison reforms and academics that endorse a correctional and rehabilitation model
for inmates, have for years agreed that conjugal visits also help an inmate to return to normal life
after being released from prison.
1
Indian Express, https://indianexpress.com/article/what-is/what-is-the-state-of-conjugal-rights-for-indian-inmates-
5038969/ (Last Visited 9th Jan, 2024)
2
Ibid
3
Ibid
Indian Perspective
Currently, there are no laws in India that expressly allow conjugal visits to inmates. However, in
2015, Punjab and Haryana High Court, while hearing a case, allowed conjugal visits and
artificial insemination for inmates. The court had ruled that it will be the sole prerogative of the
state to regulate a legally established procedure for the same. Justice Surya Kant had held in
2015 that unless reasonably classified, inmates were entitled to the right to procreate while
incarcerated and that it was a fundamental right.4
“Such a right, however, is to be regulated as per the policy established by the state which may
deny the same to a class or category of convicts as the aforesaid right is not an absolute right and
is subject to the penological interests of the state,” Justice Surya Kant had said. 5
In the present case, the authorities had argued before the court that the jail manuals did not allow
granting of leave for such requests. The court had, however, noted that as per Rule 20 of Tamil
Nadu suspension of Sentence Rules, 1982, the seventh ground for suspension is mentioned as
“any other extraordinary reason.” It held that the case fell within that scope since there was no
law or regulation laid down for such cases, adding that even devoid of the provision, the court
will have available Article 21 to consider the plea of the wife-petitioner. It noted that since the
wife was not incarcerated and was a suffering person outside the prison, she cannot be denied her
legitimate expectation to have a child.6
“The right of prisoners for conjugal visits has been recognised in a few countries. If prisons are
overcrowded the government should find solution for such problems. Conjugal visits help
prisoners maintain relationship with families, reduce recidivism and motivate and an incentive to
good prisoners. Reforming the prisoners is part of the correctional mechanism provided in the
criminal justice,”7
4
Ibid
5
Live law, https://www.livelaw.in/news-updates/right-convict-conjugal-relations-isnt-absolute-punjab-and-
haryana-high-court-agrees-madras-hc-recent-ruling-191428https://www.livelaw.in/news-updates/right-convict-
conjugal-relations-isnt-absolute-punjab-and-haryana-high-court-agrees-madras-hc-recent-ruling-191428 (Last
visited 15th Jan, 2024)
6
Economic Time, https://economictimes.indiatimes.com/news/politics-and-nation/conjugal-rights-for-prisoners-to-
be-a-reality-in-jails/articleshow/45789723.cms?from=mdr (Last visited 6th Jan, 2024)
7
Ibid
Several committees have been set up over the decades on prison reforms but any structural
change has been negligible. The Justice Mulla-chaired All India Committee on Jail Reforms
submitted a report with as many as 658 recommendations. The government is yet to enforce the
structural and policy changes that were recommended in the report, which is considered the most
comprehensive prison reforms report till date.8
Indian prisons, while taking away some personal freedoms as part of the prison life, do not
necessarily take away fundamental rights of inmates. However, the current framework hardly
offers any prolonged contact between an inmate and families.
The present mulaqat system is the standard protocol of allowing families to visit inmates at
prisons. The quick meetings, which do not stretch beyond 20 minutes, are held in noisy and
crowded rooms which reduce chances of any emotional gains9.
In contrast, the colonial era laws allowed kacchi mulaqat and pakki mulaqat to prisoners wherein
the latter allows the convict one-on-one meetings with their spouse
In contrast, open-air prisons or prisons without bars are a more lenient. Sanganer open camp in
Rajasthan allows selected convicts to reside with their families so that it enhances integration,
and instil self-discipline and family responsibility.
Health risks are also a factor that is often alluded to while conjugal rights are brought up.
Depriving conjugal rights was seen by the Madras High Court as a cause for concern in the
context of rising cases of HIV/AIDS in prisons.10
For Instance:
The State of Punjab has furthered the cause of right to life and personal liberty of prisoners by
allowing conjugal visits for inmates. It is expected that this initiative will lead to strengthening of
matrimonial bonds and also ensure good conduct of prisoners.
Prisoner rights are internationally recognised through the United Nations Standard Minimum
Rules for the Treatment of Prisoners, the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights etc. Through such instruments, prisoners are
guaranteed the right to life and inherent dignity. The right to maintain family relations including
conjugal visits are included in these treaties.11
8
Ibid
9
Ibid
10
11
Wire, https://thewire.in/law/rajasthan-open-prison, (Last visited 11th Jan, 2024)
Countries like Canada, Germany, Russia, Spain, Belgium, and Saudi Arabia have allowed
conjugal visits, and the US, Brazil, and Israel even allow same-sex conjugal visits. With the
worldwide recognition of prisoner’s rights and framing of international rules like the Nelson
Mandela rules, convention against torture, etc., that vouch for certain basic rights and amenities
in terms of the right to life and the inherent dignity in every person, rights against torture, right to
have basic health services, etc. Family relations and visitation rights have also joined this list, as
many are claiming it to be a fundamental right12.
In India, the Sunil Batra vs Delhi Administration13 case was held by Justice Iyer that “Visit
to prisoners by family and friends are solace in isolation: and only a dehumanized system can
derive vicarious delight in depriving prison inmates of this humane amenity. Subject, of course,
to search and discipline and other security criteria, the right to society of fellow men, parents,
and other family members cannot be denied in the light of Article 19 of the Constitution of
India and its sweep.,”
In the Jasvir Singh v. State of Punjab14 case, the couple was convicted of murder and was
awarded the death sentence. The couple petitioned the court seeking enforcement of their
conjugal rights for procreation. The primary question, in this case, was whether or not the
right to conjugality and procreation is a part of the right to life. The Punjab and Haryana high
court held that this right to conjugality is available to prisoners also under Article 21, subject to
restrictions.
It held that only those rights ancillary to incarceration will not be available to prisoners and the
right to conjugality (for procreation) has no relation to incarceration. A Jails Reforms Committee
was ordered to be formed for suggesting methods to implement it.
Recently the Madras HC dealt with the question of whether the conjugal rights of prisoners are a
fundamental right. In this case, the petitioner sought temporary leave for having conjugal
relations with his wife for procreation. The court granted a two-week leave for it. Again, the
petitioner sought a 6-week leave and it was rejected by the court15.
The case was referred to a larger bench that dealt with the question of whether such leave can be
granted under Tamil Nadu Suspension of Sentence Rules, 1982 though it didn’t expressly
provide for it. The court held that the emergency leave cannot be claimed as a right for
conjugality without an exceptional reason. This demarcation is necessary as the curtailment of
some rights of a prisoner on account of his conviction to the extent indicated above does not
offend Article 21 of the Constitution of India16.
12
Know Law, https://knowlaw.in/index.php/2022/08/20/right-of-prisoners-to-have-conjugal-relations-and-family ,
(Last visited 11thJan, 2024)
13
Sunil Batra vs Delhi Administration 1978 AIR 1975
14
Jasvir Singh v. State of Punjab (2019) 01 P&H CK 0058
15
Know Law, https://knowlaw.in/index.php/2022/08/20/right-of-prisoners-to-have-conjugal-relations-and-family/,
(Last visited 17th Jan, 2024)
16
Ibid
In the case of Maharaja vs State of Tamil Nadu and Ors17., the wife of a life convict petitioned
the High Court of Madras under the above rules citing extraordinary circumstances to grant
temporary leave for her husband to assist her in the infertility treatment. The court held that the
right to conjugal visit is within the ambit of the right to life of prisoners and granted the leave.
But the reason must be an important one.
One cannot ask for conjugal rights for its own sake, there have to be valid reasons like
procreation, etc. In the currently followed Mulaqat system, inmates and their families meet for
20 minutes in noisy and crowded rooms, reducing the possibility of any emotional gain.
Visitation purely for purposes of conjugal society is not found anywhere in India. With the new
trend of allowing conjugal visitation to prisons in several foreign countries, the trend is emerging
in India too with a few in favor of it.18
International Perspective
In the US, it is not only based on sexual unions as many conjugal visits involve children and
other loved ones due to which these visits are officially called Extended Family Visits or, in New
York, the Family Reunion Program. Similarly, Canada has an extensive correctional system that
allows inmates to spend up to 72 hours every two months with their families under the Private
Family Visits (PFVs) program. The goal of this system is to go beyond punishments and help
them realize that they have a family and a bright future.19
Saudi Arabia allows a once-a-month visit; but if one has multiple wives, he gets once per month
per wife and the travel expenses are borne by the state itself which is not the case in the above
countries. According to a 1982 study of New York’s prison population, prisoners
who had extended family visits were almost 70% less likely than other prisoners to wind up back
in prison within three years. Thus, the prevention of recidivism is one of the main reasons for
advocating this right.20
In Canada, an interesting case of a prisoner Lee Chapelle who spent 15 years of his life in prison,
with the help of the correctional system was able to marry and procreate a child while serving his
prison sentence itself. The system helped him to exhibit good behavior and get ahead in life. He
now runs a Prison Consulting service company.21
There are increasing instances of homosexuality and related crimes due to a lack of sexual
satisfaction among inmates. In a study conducted by S.P. Srivastava in the Central Jail Bareilly,
17
Maharaja vs State of Tamil Nadu and Ors SLP (Crl.) No. 2270 of 2008
18
Know Law, https://knowlaw.in/index.php/2022/08/20/right-of-prisoners-to-have-conjugal-relations-and-family/,
(Last Visited 13th Jan)
19
Know Law, https://knowlaw.in/index.php/2022/08/20/right-of-prisoners-to-have-conjugal-relations-and-family/
(Last visited 10th Jan, 2024)
20
UNHRC, https://www.ohchr.org/en/instruments-mechanisms/instruments/international-convention-protection-
rights-all-migrant-workers, (Last Visited 18th Jan, 2024)
21
https://knowlaw.in/index.php/2022/08/20/right-of-prisoners-to-have-conjugal-relations-and-family/#:~:text=In
%20Canada%2C%20an%20interesting%20case,and%20get%20ahead%20in%20life.
UP, it was found that nearly 10 to 15 percent of inmates are situational or habitual homosexuals.
When confronted, many cited the absence of conjugality as the reason for such deviation. It was
also found that the prisoners in order to satisfy their desires, often approached the younger
inmates who are highly vulnerable to seduction. Such unprotected homosexual activities lead to
an increase in HIV-AIDS cases creating a health and sanitation crisis in prisons.22
Previously, it was believed that a person cannot be reformed, or the only way to do it is through
harsh punishment. Recently, there are several instances where reformation through lighter
measures that approach to solve the issues that motivated the individual to commit the offense
combined with rehabilitators aspects have been successful. Frequent family or conjugal visitation
can act as a catalyst in this process helping inmates to realize their responsibilities and hope for a
happy life23.
Apart from these judgments, denial of these rights to the prisoners is an egregious breach of
fundamental human rights as expressed in important international documents, demonstrating a
serious contempt for the principles enshrined in the Universal Declaration of Human Rights
(UDHR) and the International Covenant on Civil and Political Rights (ICCPR). These
international principles emphasise the inviolable nature of human dignity and individual rights,
emphasising that such rights transcend legal status or detention. As a signatory to these crucial
accords, India has pledged to maintain these universal norms24.
Another landmark judgement of Sunil Batra V Delhi Administartn 1980, 3 SCC 488 said “
Prisons are built with rocks of law” and said that prisoners were indeed individuals and not
animals and the court must hold accountable those prison officials who, via their actions,
undermine the dignity of individuals who are incarcerated. Prisons are an important aspect of the
Indian environment, and jail officials are subject to examination under the Indian Constitution 25.
In Jasvir Singh and anr v. Punjab State, and others26, the petitioners in this case were a couple,
accused of raping and killing a sixteen-year-old for ransom. Trial Court awarded the pair a death
penalty and their further challenge to the Supreme Court was rejected. The Supreme Court
however commuted the wife’s sentence to life imprisonment. The petitioners prayed for their
conjugal rights to be enforced and for their right to procreate during the incarceration. They also
petitioned for the Court to direct the prison authorities to allow them to stay together for the sake
of procreation. As an alternative they also asked for artificial insemination.
The main issue in this case is whether the prisoners’ ‘right to life’ includes the ‘right to conjugal
visits’ and the ‘right to procreate.’ The Punjab and Haryana High Court contended that prisoners
also had the right to procreation. That right can be traced to fall within the scope of reading with
22
Ibid
23
Ibid
24
The Hind, https://www.thehindu.com/news/states/explained-the-debate-around-conjugal-visits-for-prisoners/
article66236287.ece, (Last Visited 11th Jan, 2024)
25
The Daily Guardian https://thedailyguardian.com/conjugal-visit-a-desideratum/,(Last Visited 15th Jan, 2024)
26
Jasvir Singh and anr v. Punjab State, and others 2021 Latest Caselaw 4518 P&H
the UDHR under Article 21 of the Constitution. The Court stated that prisoners will not have
access to only the rights that are ancillary to incarceration and, since there is no link between
conjugal rights and incarceration, the prisoners are entitled to enjoy such rights, subject to
reasonable restrictions27.
The Court finally established that the right to conjugal visits or artificial insemination
(alternative) includes Article 21 which is available to prisoners. The Court also held that the
exercise of these rights is in keeping with the procedure established by the State28.
Meharaj v. Tamil Nadu state, and others29, In this case, the Petitioner (the convict’s wife) filed a
petition before the Madras High Court seeking leave for her husband who is a life sentenced
person. The leave is being sought for the purpose of assisting the petitioner in her undergoing
infertility treatment. In this case, the Court emphasized the importance of family bonds and the
relationship with the spouse in a prisoner’s reformation and held that, just because a person is a
prisoner, he cannot be deprived of his right to dignity in a society. The Court affirmed that
marital rights are a very important aspect of the right of a man to life.The court upheld that the
right to a conjugal visit is within the scope of prisoners’ right to life and consequently prisoners
are entitled to the same.30
In the case of Charles Sobraj v. Superintendent, Central Jail], Tihar, Justice Krishna Aiyer
stated that “Imprisonment does not say goodbye to fundamental rights although, through a
realistic re-evaluation, the courts will refuse to recognize the full scope of Part III enjoyed by a
free citizen.” It is therefore that the prisoners will only be denied rights that are ancillary to the
punishment, such as the right to move etc., and are free to enjoy all the other fundamental
rights31.
In the case of Charles Sobraj v. Superintendent, Central Jail, Tihar32, Justice Krishna Aiyer
stated that “Imprisonment does not say goodbye to fundamental rights although, through a
realistic reassessment, the courts will refuse to recognize the full scope of Part III enjoyed by a
free citizen.” Thus, it is that the prisoners will only be denied rights that are ancillary to the
punishment.
In G. Bhargava, Chair M / s. Gareeb v. State of Andhra Pradesh33, the Andhra Pradesh High
Court denied any such right to prisoners on the ground that such a provision was not provided for
in the 1979 AP Prison Rules and that it would be unfavorable to confer such benefit on one
prisoner on the other. Two years down the line, however, the Punjab and Haryana High Court
held that the ‘right to procreate’ falls within the purview of the right to life and personal freedom
27
Indian Law Portal, https://indianlawportal.co.in/conjugal-rights-of-prisoners/ , (Last Visited 16th Jan, 2024)
28
Ibid
29
Meharaj v. Tamil Nadu state, and others W.P.No.27499 of 2018
30
W.P.No.27499 of 2018
31
Charles Sobraj v. Superintendent, Central Jail, Tihar 1978 AIR 1514
32
Ibid
33
M / s. Gareeb v. State of Andhra Pradesh
enshrined in Article 21 of the Constitution, thus recognizing the ‘right to a conjugal visit’ or the
‘right to procreate’ as a fragment of the prisoners’ ‘right to life.
In G. Bhargava, Chair M / s. Gareeb v. State of Andhra Pradesh34 , the Andhra Pradesh High
Court denied any such right to prisoners on the ground that such a provision was not provided for
in the 1979 AP Prison Rules and that it would be unfavorable to confer such benefit on one
prisoner on the other. Two years down the line, however, the Punjab and Haryana High Court
held that the ‘right to procreate’ falls within the purview of the right to life and personal freedom
enshrined in Article 21 of the Constitution, thus recognizing the ‘right to a conjugal visit’ or the
‘right to procreate’ as a fragment of the prisoners’ ‘right to life35.
In Jasvir Singh and anr v. Punjab State, and others36, the petitioners in this case were a couple,
accused of raping and killing a sixteen-year-old for ransom. Trial Court awarded the pair a death
penalty and their further challenge to the Supreme Court was rejected. The Supreme Court
however commuted the wife’s sentence to life imprisonment. The petitioners prayed for their
conjugal rights to be enforced and for their right to procreate during the incarceration. They also
petitioned for the Court to direct the prison authorities to allow them to stay together for the sake
of procreation. As an alternative they also asked for artificial insemination.
The main issue in this case is whether the prisoners’ ‘right to life’ includes the ‘right to conjugal
visits’ and the ‘right to procreate.’ The Punjab and Haryana High Court contended that prisoners
also had the right to procreation. That right can be traced to fall within the scope of reading with
the UDHR under Article 21 of the Constitution. The Court stated that prisoners will not have
access to only the rights that are ancillary to incarceration and, since there is no link between
conjugal rights and incarceration, the prisoners are entitled to enjoy such rights, subject to
reasonable restrictions.37
The Court finally established that the right to conjugal visits or artificial insemination
(alternative) includes Article 21 which is available to prisoners. The Court also held that the
exercise of these rights is in keeping with the procedure established by the State38
34
Ibid
35
PIL No.251 of 2012 decided on 16 July 2012
36
Jasvir Singh and anr v. Punjab State, and others LPA No. 156 of 2019 (O&M)
37
https://economictimes.indiatimes.com/news/politics-and-nation/conjugal-rights-for-prisoners-to-be-a-reality-in-
jails/articleshow/45789723.cms?from=mdr , (Last Visited 10th Jan, 2024)
38
LPA No. 156 of 2019 (O&M)
