A Division Bench of the Rajasthan High Court has granted 15 days of parole to a convict undergoing live imprisonment on a plea made through his wife on the ground that she has not begotten any issue from their wedlock.

Division Bench of Justice Sandeep Mehta and Justice Farjand Ali has granted parole to convict-prisoner Nand Lal who is lodged at the Central Jail, Ajmer and has already undergone six years of imprisonment.

Advocate K.R. Bhati appeared for the petitioner. Anil Joshi, Government Advocate, appeared for the state of Rajasthan and opposed the plea on the ground that the case of the prisoner does not fall within the ambit of Rule 11 of the Rules of 2021.

However, the Court granted the parole while holding that "there is no express provision in the Rajasthan Prisoners Release On Parole Rules, 2021 for releasing the prisoner on parole on the ground of his wife to have progeny", by "considering the religious philosophies, cultural, sociological and humanitarian aspects, coupled with the fundamental right guaranteed by the Constitution of India and while exercising extraordinary power vested in it".

The Court noted that the conduct of the prisoner has been satisfactory and obtained a report through police that the wife, Rekha is the legally wedded wife of the prisoner and she is residing at her matrimonial home along with her inlaws.

"Having progeny for the purpose of preservation of lineage, has been recognized through religious philosophies, the Indian culture and various judicial pronouncements", the Court held.

The Court held that the right of progeny can be performed by conjugal association and that the same has an effect of normalizing the prisoner and also helps to alter the behaviour of the prisoner.

"Thus, denial to the convict-prisoner to perform conjugal relationship with his wife more particularly for the purpose of progeny would adversely affect the rights of his wife" the Bench held.

The Bench referred to religious texts of Hindus, Muslims and Christians on the need for preservation of lineage. The Court also referred to the sociological aspect of the right of progeny and preservation of lineage.

"In a case where the innocent spouse is a woman and she desires to become a mother, the responsibility of the State is more important as for a married woman, completion of womanhood requires giving birth to a child. Her womanhood gets magnified on her becoming a mother, her image gets glorified and becomes more respectful in the family as well in the society. She should not be deprived to live in a condition wherein she has to suffer living without her husband and then without having any children from her husband for no fault of her", the Court held.

The Court noted that as per the Supreme Court, the "right to procreation survives during incarceration" and "is traceable and squarely falls within the ambit of Article 21 of our Constitution".

"In view of the fact that the spouse of the prisoner is innocent and her sexual and emotional needs associated with marital lives are effected and in order to protect the same, the prisoner ought to have been awarded cohabitation period with his spouse", the Bench held.

Accordingly, the Court directed that the prisoner be released on emergent parole for a period of fifteen days from the date of his release provided he furnishes a personal bond in the sum of Rs.50,000/- along with two surety bonds of Rs.25,000/- each to the satisfaction of the Superintendent, Central Jail, Ajmer on usual terms and conditions.

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