Right to life includes convict’s right to procreate: Delhi High Court

Delay in having a biological child due to incarceration would mean curtailing this fundamental right to parenthood, says Justice Swarana Kanta Sharma

Representative image of Delhi High Court entrance with Ashoka capital emblem (photo: IANS)
Representative image of Delhi High Court entrance with Ashoka capital emblem (photo: IANS)
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NH Digital

In a significant ruling, the Delhi High Court has ruled that any citizen has the right to parenthood and procreation, and an individual does not become a lesser citizen even as a convict only due to their incarceration.

In a recent order, Justice Swarana Kanta Sharma said, “Delay in having a biological child would mean curtailing this fundamental right to parenthood due to incarceration of a convict. The right to procreate, in this court’s opinion, survives despite incarceration, in the certain set of facts and circumstances of a given case as the present one."

“This court has no hesitation to hold that right to life under Article 21 of the Constitution of India will include the right of a convict to have a child when he is not blessed with a biological child by being extended the relief of grant of parole for this purpose where he needs medical assistance and the biological clock due to his age may weaken and make prospects of having a child bleak,” the court said.

The court clarified that it was not in this case dealing with the issue of grant of parole for the purpose of maintaining a conjugal relationship and conjugal rights as per the jail rules, but was speaking of the fundamental right of a convict to undergo such treatment as may be required to have a child.

It however also added that the right to procreation is not absolute, and that the ruling must take into account various factors—like the prisoner’s parental status and age—and that a fair and just approach can be adopted to preserve the delicate equilibrium between individual rights and broader societal considerations.

In the present case, the petitioner had been in prison for the last 14 years and sought parole on the grounds that he and his wife wanted to protect their lineage, for which the petitioner would have to undergo certain medical tests in order to have a child through in vitro fertilisation (IVF).

Given the age of the couple, the court observed, their concern that their biological clock cannot wait for the period of incarceration to be over seemed genuine. The justice also acknowledged that it was a “human tendency” to desire biological children.

“It is a personal choice and fundamental right of an individual (though a convict) and his wife (who is a free citizen) to have a child together for protecting and saving their lineage, which must be respected by a court of law,” the court continued.


“The definition of fundamental rights and its expansion cannot be caged in (by) narrow formulas of black and white letters,"added the court, "and its duty and beauty lies in interpreting it with (a) broader point of view, as the faith of the common man in the judicial system is on the broad shoulders of the courts of law of Bharat.”

Observing that the “judiciary in Bharat has always stubbornly refused to hold that prisoners have no fundamental rights”, the court added that the right to parenthood and procreation is a fundamental right of a convict in peculiar circumstances of a case.

The court therefore directed that the petitioner be released for a period of four weeks on parole, subject to a personal bond of Rs 20,000, a surety of the like amount and some other conditions. 

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