An undertrial in a murder case, who was sent to jail eight months after his wedding in 2008, approached the Delhi High Court seeking interim bail to consummate his marriage and have a child "so that his wife could lead a happier life while he is in prison". (Hindustan Times, April 10). This case is reminiscent of a case of 2002 where a 31-year-old nurse from Ludhiana made a petition before the Punjab State Human Rights Commission (PSHRC) claiming that she has the right to motherhood and that she cannot be deprived of it merely because her husband is serving a jail term. Her argument was that her right to motherhood as a married woman was a part of her fundamental right to life and personal liberty under Article 21 of the Constitution. The PSHRC acting chairman thereupon directed the additional DGP (Prisons) to study the matter. The order stated that though it is for the Punjab and Haryana High Courts to judge the conviction of the (applicant's) husband 'the basic issue raised is of larger concern as she may legitimately feel that she has a basic right to motherhood which has been temporarily rendered non-exercisable (for) no fault of hers;' and further 'a woman can conceive up to 40 years of age or so, so if the husband is likely to be released before the applicant/complainant attains that age, the matter could be looked at differently'(Hindustan Times, November 27, 2002)
In this context it may be pointed out that several countries provide for conjugal visitation rights for prisoners. The idea of conjugal visitation is to give support to the marriage during the separation period. Long-term imprisonment is a ground for divorce under family law statutes in many nations, including India. Such permission or provision, however, will entail heavy financial and administrative burden, apart from security issues. Some countries, including India, are experimenting with prisoners' colonies where inmates are allowed to keep their families.
The crux of the matter thus is whether the right to become a father or a mother is a fundamental right; is it a concomitant of the right to liberty under Article 21 of the Constitution and if so, is it inviolable and absolute under all circumstances?
Conceding this right would open up a Pandora's box and denying the same would be perceived as a violation of human rights of the prisoners, and more than that of the partners. Where do we draw the line? Today, it is the right of parenthood and tomorrow it could be paternity leave, and when a child is born it could be the child's right to be with both parents, or it could be partner's right to consortium, and so on. A similar question was raised in 1999 in the Rajiv Gandhi assassination case: whether the child of the two convicts should be saved from being orphaned by saving the mother from being sent to the gallows?
These are issues that need to be debated dispassionately after duly addressing the needs of pragmatism vis-à-vis human rights in the circumstances of the case. None should be sacrificed at the altar of the other.
Kusum is former professor, Indian Law Institute
The views expressed by the author are personal