‘Completion of womanhood requires giving birth to child’: Rajasthan HC observes while granting parole to murder convict

“In December last year, we had approached the district collector, Ajmer, who is the chairman of the district parole committee. Our request was to grant Lal parole as his wife has not begotten any issue from their wedlock and thus, for want of progeny, she craves for 15 days’ emergent parole. But after no order was passed by the committee, we approached the High Court,” said K R Bhati, the counsel for the petitioner.

In its order, the court said that the convict-prisoner is married and the couple has no issue out of their wedlock since their marriage till date. Having progeny for the purpose of preservation of lineage has been recognised through religious philosophies, the Indian culture and various judicial pronouncements, said the court.

“As regards the right of convict is concerned, connecting the same with Hindu philosophy, there are four Purusharths, object of human pursuit, which refer to four proper goals or aims of a human life. The four purushuarths are Dharma (righteousness, moral values) Artha (prosperity, economic values), Kama (pleasure, love, psychological values) and Moksha (liberation, spiritual values, self-actualization),” the court said.

The court added, “When a convict is suffering to live in prison, he/she is deprived to perform the abovementioned purusharths, among them, three of four purusharths, i.e. Dharma, Artha and Moksha are to be performed alone, however, in order to perform/exercise/pursue the fourth Purushartha, i. e. Kama, the convict is dependent on his/her spouse in case he/she is married.”

“At the same time, the innocent spouse of the convict is also deprived to pursue the same. 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,” the court order said.

🗞️ Subscribe Now: Get Express Premium to access the best Election reporting and analysis 🗞️

The court added that the wife of the petitioner 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 also referred to religious texts of Hinduism, Judaism and Islam, in its order.

“If we see the matter with the religious aspect; as per Hindu philosophy, Garbhadhan, i.e. attaining the wealth of the womb is the first of the 16 sacraments. Scholars trace Garbhadhana rite to Vedic hymns, such as those in sections 8.35.10 through 8.35.12 of the Rigveda, where repeated prayers for progeny and prosperity are solemnised,” said the order.

“In Judaism, Christianity, and some other Abrahamic religions, the cultural mandate is the divine injunction found in Genesis 1:28, in which God, after having created the world and all in it, ascribes to humankind the tasks of filling, subduing, and ruling over the earth. The cultural mandate includes the sentence ‘Be fruitful and multiply and fill the Earth’. The cultural mandate was given to Adam and Eve,” the order added.

The court said in its order that the preservation of lineage is also greatly emphasised by the Islamic Shariah and the Cairo declaration of human rights in Islam also supported the protection of lineage in Islam.

“All the articles of CDHRI covered the five basic human rights mentioned in Maqasid I Shariah. The first main objective of Maqasid I Shariah is the completion of human’s necessity; in which protection of progeny (nasl) is the foremost purpose,” said the court in its seven-page order.

The court further added that right of progeny can be performed by conjugal association and the same has an effect of normalising the convict and also helps to alter the behaviour of the convict prisoner.

“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. Thus, viewing from any angle, it can safely be concluded that the right or wish to have progeny is available to a prisoner as well subject to the peculiar facts and circumstances of each case,” says the court order.

The court order added that simultaneously, it is also found apposite to hold that the spouse of the convict-prisoner cannot be deprived of his or her right to get progeny.

Rajasthan Additional Advocate General Anil Joshi said that the state government had objected to the petition on the grounds that the existing parole rules don’t have a petition to grant parole for want of progeny.

“The purpose of parole is to let the convict to re-enter into the mainstream of the society peacefully after his release. The wife of the prisoner has been deprived of her right to have progeny whilst she has not committed any offence and is not under any punishment. 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,” said the court order.

“Hindu philosophy also advocates the importance of pitra – rin, i.e. parental debt. Our lives are the consequence of the fact that ancestors have been carrying and forwarding the said pitra rin, it is because of this, life came to us and in order to maintain the continuity of life, we must pay off this debt,” the order added.

The court said that Article 21 of the Constitution guarantees that no person shall be deprived of his life and personal liberty except according to procedure established by law. It includes within its ambit the prisoners also, said the court in its order.

“As an upshot of the observations made herein above, we are of the considered view that though 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; yet considering the religious philosophies, cultural, sociological and humanitarian aspects, coupled with the fundamental right guaranteed by the Constitution of India and while exercising extra ordinary power vested in it, this Court deem it just and proper to allow the instant writ petition (sic),” said the court, granting parole to the convict prisoner.

The court said in its order that Lal shall 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.