Uttarakhand HC to Examine Prisoners' Right to Start a Family

The HC was hearing a plea by the wife of a prisoner who sought short-term bail so he could begin a family.

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New Delhi: The Uttarakhand high court will take up the constitutional question on a prisoner’s right to procreate and start a family, Bar and Bench has reported.

A bench of Chief Justice R.S. Chauhan and Justice Alok Kumar Verma was hearing a petition filed by a prisoner’s wife who sought short-term bail for him so that the couple could start a family.

The prisoner in question had been sentenced to 20 years of rigorous imprisonment, out of which he had served seven. His wife had argued that it had only been three months into their wedding that her husband was imprisoned and as such, they could not start a family.

The high court said that it would also examine the rights of a child born in such a situation and tagged the petition with a public interest litigation it was hearing on jail rules.

The court noted that such a child would be “deprived of a father” and expressed intent to examine the rights of a prisoner’s wife.

“The child would say I have the right of company of my father who is incarcerated. But then the question is, shall we permit a child to be brought into the world whose upbringing will be difficult because the mother is a single parent… What about the psychological impact on the child who is asked to live without a father figure? Therefore, the rights of the child need to be decided although the child is neither conceived nor born,” said the chief justice, according to Times of India.

The bench also examined the contrasts of potential rights accorded to married prisoners with those of unmarried ones, noting that a prisoner who is not married cannot be denied rights simply because he is not married.

The case will come up for hearing again on August 31. The court has also directed an amicus curiae and another advocate to advice it on international legal practices on the issue, in places like US, Canada, Australia and England.

The court’s examination of the rights of a prisoner to procreate appear to have focused primarily on male prisoners whose partners are outside prison. India’s prison rules have it that a woman who has entered prison pregnant or with a child below six years bring the child up in prison. However, underlying the question of the right of a female prisoner to procreate is concern as to whether the conditions in many Indian prisons are conducive to child rearing. The Wire‘s Jahnavi Sen, in a report on the particular challenges faced by women prisoners, details the aspect of pregnancies and miscarriages in jails as well.

In October 2020, the Patna high court had released a life convict on parole, notes the TOI report. In 2015, the Punjab and Haryana high court too had noted in 2015 that the conjugal rights of prisoners falls within the ambit of Article 21 of the constitution that guarantees right to life and liberty.