Bench says the benefit can be extended only for exceptional reasons such as a need to undergo infertility treatment
In an authoritative pronouncement, a Full Bench (comprising three judges) of the Madras High Court has held that convicts cannot be granted ordinary leave just for having conjugal relationship with their spouse unless there were exceptional reasons such as a need to undergo infertility treatment.
Acting Chief Justice Munishwar Nath Bhandari, Justice Pushpa Sathyanarayana and Justice P.D. Audikesavalu said: “A convict cannot enjoy all liberties available to a common person. Otherwise, there would no difference between a law-abiding citizen and a law-violating prisoner.”
They also wrote: “If grant of ordinary leave for having conjugal relationship is recognized to be a right under Article 21 (right to life and liberty) of the Constitution, the prayer of similar nature can be made by the accused or his/her spouse time and again to have conjugal relationship.”
Since Tamil Nadu Suspension of Service Rules of 1982 provide for grant of ordinary leave for “extraordinary reasons,” other than those listed out under the Rules, the judges said: “It can be granted to undergo infertility treatment, that too, for a convict having no child from the wedlock.”
They made it clear that if a convict already had a child or children from his/her wedlock, then he/she could not seek leave even for infertility treatment or any other similar reason. The Full Bench added that a same reason could not be sighted repeatedly to seek leave on multiple occasions.
The judgement was passed while answering a reference made by a Division Bench of the High Court on February 25, 2019. The Division Bench had referred the matter while dealing with a habeas corpus petition filed by the wife of a convict in the Coimbatore bomb blast case.
The Division Bench found that the petitioner’s husband had already been granted ordinary leave on January 11, 2018 for a period of two weeks to undergo infertility treatment. However, she had moved yet another application seeking leave once again for the same reason.
Not finding any provision in the 1982 Rules for grant of leave to a convict to have conjugal relationship with the spouse, the Division Bench referred the matter to the Full Bench.