INTRODUCTION
Human Rights are considered as Basic and Indisputable assurances, which describe certain values and principles of human behaviour, and they are regularly protected as Legal Rights in Municipal and International Laws. Human Rights are natural and inherent to all human beings, irrespective to the nationality, colour, religion, language, status etc. Also Human Rights are Fundamental in nature.
In context to India, as per to Article 21 of the Indian Constitution. Everyone has the Right to Live with Liberty and Dignity. This right is constituted as a very basic and most important Right. This right can be practised by anyone, and there is no place for discrimination. Even the Prisoners have access to this Right. Though, Prisoners are guaranteed Fundamental Rights, but there are some limitation also imposed on the same.
In Charles_Sobbraj v. Superintendent, Central[1], the extent of Judicial Interference was analysed, and the prisoners are entitled to the protection of Fundamental Rights against any arbitrary and discriminatory treatment by the prison authorities. Court has affirmed that Imprisonment does not mean to spell Farewell to Fundamental Rights. Although the courts may refuse to allow in full the fundamental rights enjoyed by a free citizen.
In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi[2], the Hon’ble Supreme Court observed, that as per to Article 24 and Article 21of the Constitution, it is to be considered reasonable and fair that prisoners or detenue are entitled to meet their family members or friends because it is considered a part of Personal Liberty. Therefore, Prisoners are entitle to meet their family members and friends, but can they exercise their Conjugal Right.
CONJUGAL RIGHTS
Conjugal Right means ‘Right to Stay Together’. The Conjugal Rights are the Sexual Rights, and which are also exercisable in law, by each partner in the marriage. As a result, Conjugal Rights refer to mutual rights and privileges, between two individuals, which arise because of Marriage. Section 9 of Hindu Marriage Act, 1955, states that in case. If either the husband or wife, without reasonable excuses, withdraw from the society of the other; the aggrieved party can directly, approach the court. As in for the Restitution of Conjugal Rights. The main purpose of Section 9 is to ‘Save the Marriage’.
WHY THERE IS NEED OF CONJUGAL RIGHTS FOR PRISONERS
No country tolerate the criminal act. Because it is consider as harmful and it impose bad impact on society in large. The penal laws of the country are design to offer punishment to those individuals; who were involve in the commission of the crime. Though the criminal act committed by individuals is not a respectable conduct. But despite of the fact that every human enjoys certain rights; which are called as Human Rights.
In the case of India, the Human Rights = Fundamental Rights, and they are provided to all citizens.
In society, we come across a lot of things as well as of emotions. The basic requirements of a man is ‘Food’, ‘Shelter’, ‘Clothes’ etc, in order to survive. The prisoners are serving their punishment in the jail, for an allotted specific period of time. For the unlawful act committed by them, but one cannot deprive them of the basic necessities of life. In basic necessities, Family also prevail, so that he can experience and share his joy and sorrows with them.
As India monitors the Reformative Theory of Penology, and prison punishment is the most common form of punishment. In order to reform their well being and behaviour; it is believed that visits by family can help the prisoner to reform and rehabilitate. As this would definitely give a sense of moral and social support. Judiciary in India has contributed and played an extensive role; in highlighting the importance of providing decent living condition to prisoners. As well as for recognising and protecting their necessary Fundamental Rights, as for reformative purposes.
Marriage is an agreement between Man and Women, to live as Husband and Wife. This institution requires both to share their physical as well as emotional feelings with each other. Marital Right is for everyone, and this is applicable for prisoners as well. Therefore, the concept of Conjugal Rights to prisoners stresses on the marital relationship between the prisoner and his/her spouse. The main ideology behind this concept is to not let any situation or circumstance to hamper or obstruct the family life of a prisoner. Because it has been observe that spending quality time and sharing of emotions with family and with your life partner, helps the inmate psychologically and also provide s a sense of security, affection and care, and this can bring stability in his behaviour.
Conjugal Rights are exercise as by visiting prisoners. Generally, Conjugal Visit is a schedule period, during which the inmate is permit to and can spend several hours or days in private with the visitor, mostly his or her legal spouse, during that period, both the parties may or can engage in sexual intercourse. The main intention behind, permitting the exercise of Conjugal rights is to preserve the Family Bonds, maintain the relationship between the husband and wife and most importantly, the chances of improving prisoners act or behaviour and eventually returning to their normal well being.
Judgement Supporting the Right of Conjugal Rights
In Meharaj v State of Tamil Nadu and others, the petition was file by the wife of the convict, as seeking grant of leave for her husband, who is a life convict. The purpose of the leave is to assist the petitioner in the infertility treatment, which need to be undergone by her. Court held that Conjugal rights are the important aspect of an individual’s Right To Life, and the right of conjugal rights will be grant, as this right cannot be detain, just because he is a prisoner.
In Jasvir Singh and Anr v. State of Punjab and others[3], the major issue was Whether Right to Life, which is available to prisoners, also includes Rights to Conjugal Rights and Right to Procreate. Court held that the Right to Procreation is available to prisoners as well, as this Right can be read with Article 21. It was also established that Article 21 that is available to prisoners which include their right to conjugal visits or artificial insemination (alternative), and these rights should be exercised in respect to the procedure laid down by the State.
INTERNATIONAL PERSPECTIVE ON CONJUGAL RIGHTS FOR PRISONERS
European Convention on Human Rights has considered as well as recognised Conjugal Rights to be significant Human Right for prisoners. Only a few countries recognise the Conjugal Rights of Prisoners, which are Australia, India, Canada, Germany, Israel, Spain, Saudi Arabia, the UK, Denmark, Mexico, Jamaica, Pakistan.
In the U.S, only four states( which are Connecticut, New York, California and Washington) allow the conjugal visits, which are known as Family Visits. The Supreme Court and several other courts says that Prisoners do not attain the Conjugal Rights as Constitutional Rights. relations with their partners will be beneficial. This development in Jamaica, however, has been highly criticised.
Furthermost of the European countries consider the right to marry and have children to be a scared obligation. The conjugal rights in these countries are more liberal and promising. France allows for conjugal visitation twice every week and New Zealand allows spouses to visit their inmates for an hour every week. Sweden is consider to be the most generous country providing for visitation rights to spouses on one Sunday every month without any supervision.
According to Islamic Law, the prison system is different. Imprisonment is not the base of punishment. But in exceptional cases, if imprisonment is grant as punishment, prisoners enjoy all rights, inclusive of conjugal rights, except the right to freedom of movement.
CONCLUSION
It is important to punish the wrongdoer, in order to make the individual realise his unlawful act and make him pay for his sins, but there is also a motive behind this, as in to change the behaviour, as in the forms of rehabilitation etc, so to prevent the prisoner from entering in the criminal world again. Various reforms and strategies are adopt for channelizing the behaviour of the prisoners. One of the effective method identified and adopted by the judiciary is Conjugal Rights to prisoners, as the family bond is the only effective and fast tool, for bringing change in the prisoner.
But there is an urgent need to make effective reforms in consideration to Conjugal Rights of Prisoners. Because still this Right of Prisoners are not give much importance and this is generally ignore by jail authorities. Proper Reforms are require to be with a proper handling committee and adding various rules and directions are require to be add, as in to make the matter crystal clear in respect to the prisoner’s conjugal rights.
References:
[1] A.I.R. 1978 S.C. 159
[2] A.I.R. 1981 S.C. 746
[3] Decided on December 5, 2017, Criminal Appeal No.D-480-DB of 2010
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