In January, a 32-year-old woman approached a Mumbai sessions court with a request that doesn’t usually involve courts: Permission to undergo in vitro fertilisation (IVF). She cited family pressure to bear a child despite being behind the bars for nearly six years.
The woman, former prison guard at Byculla women’s jail, and five others are facing trial in connection with the custodial death of an inmate in the jail on June 23, 2017.
She sought permission to undergo IVF treatment while awaiting the conclusion of her trial. On June 17, the court rejected her application, saying her plea was not sustainable because she was in jail.
After an in-person hearing with her, the court said if permission was granted, she would make other applications, including ones to continue treatment and visit the doctor. This, it said, would burden the prosecution and inconvenience the ongoing trial.
The undertrial is said to be the first woman prisoner in the country to approach a court for permission to undergo IVF, which has seen much debate in prisons across the world on a prisoner’s claim to such a right.
While making her case before the court for IVF treatment, the undertrial submitted that she has been behind bars for nearly six years and the trial, which has so far seen deposition by just seven of over 40 witnesses, is unlikely to conclude anytime soon.
Adding that she may not be able to conceive later on account of her age, she told the court that she could only think of IVF as a solution to get pregnant since her husband wanted children.
A relative of the accused said the woman, who was 26 at the time of the incident, was married for nearly a year at the time of her arrest in July 2017 and that her family had recently started pressuring her to have a child.
Manjula Shetye, who was serving life imprisonment for the murder of her sister-in-law, was allegedly assaulted by six prison staffers, including the undertrial and the jailor, leading to her death on June 23, 2017.
Distribution of eggs and bread in jail was said to be the trigger for the incident. The police claimed that the jailor and five prison guards had fatally assaulted Shetye. The accused women denied the charge in multiple bail applications, all of which were rejected. All six have been lodged at Thane jail since their arrest in July 2017.
Previous bail pleas
Opposing the 32-year-old’s plea for IVF, the prosecution had said that her previous bail pleas were rejected and that if she was allowed to get IVF treatment, she may seek further permissions for treatment, which will affect the trial.
“There is substance in the contentions of the prosecution that if such type of permission will be granted, then there will be other applications also about the visit to the doctor and for escorts and other reliefs. It will also definitely burden the prosecution,” the sessions court said in its June 17 order rejecting her plea,
Authorities said if such a plea is allowed for women undertrials and the high number of women prisoners (are or were) to seek similar treatment, existing issues — overcrowding in jails, lack of adequate health infrastructure and guards to prison ratio, among others — will need to be reformed first.
A similar plea was moved by the 35-year-old jailor who sought interim bail for a few days on the grounds that her husband and in-laws wanted her to have a child. The prosecution had opposed the plea stating that it was not a lawful reason for interim bail. Following this, the plea was rejected by the court on September 3, 2021, which said that she may abscond if granted bail.
While convicts are granted furlough, temporary releases that enable them to maintain family association, undertrials are not eligible for such relief even if they have been in custody for long due to the pendency of their trial.
Impact of incarceration on women
Prison rights and women rights activists said the immediate and long-term impact of incarceration — like abandonment by families and spouses — are more severe in women prisoners than their male counterparts. In collaboration with Prayas, a field action project of the Tata Institute of Social Sciences (TISS), the Maharashtra Prison Department had in April held a state-level consultation on rehabilitation and social reintegration of women released from prisons.
“The consultation showed that there were many challenges and stigma faced by women prisoners, especially the impact on their familial ties. Once they are in jail for a long time, exclusion and isolation from their families is quite common, as their husbands or in-laws may consider them dispensable. While convicts have certain relief, if trials are delayed, grant of temporary bail for specific reasons within the ambit of basic rights can be considered on a case-by-case basis,” said Vijay Raghavan, project director, Prayas.
There have been cases of prisoners approaching courts to seek conjugal rights. However, most of these cases were moved by male prisoners and convicts. The most significant order on this issue was by the Punjab and Haryana High Court in 2014, which said the right to procreate falls within the fundamental right under Article 21 of the Constitution and it survives incarceration.
It had said the right of convicts or inmates to have conjugal visits or artificial insemination is within the right to life. Last year, the court had said the right of a prisoner to procreate is not absolute and is subject to reasonable restrictions.
The Punjab Prisons Department is the only one in the country that allows prisoners with good conduct to spend up to two hours with their spouses. The initiative was launched in three jails of Punjab last year.
The jail in Byculla where the undertrial was a guard. (Express File Photo) 
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