Prisoners have fundamental right to procreation and parenthood: Delhi High Court

The Court granted four weeks parole to a 41-year-old murder convict who wanted to have a child through IVF.

The Delhi High Court has held that right to procreation and parenthood is a fundamental right of a convict and protected under Article 21 of the Constitution [Kundan Singh v The State Govt of NCT Delhi].  

Justice Swarana Kanta Sharma clarified that this right is not absolute but depends on the context and by considering factors such as the prisoner's parental status and age, a fair and just approach must be adopted to preserve the delicate equilibrium between individual rights and broader societal considerations.

“Judiciary in Bharat, has always stubbornly refused to hold that prisoners have no fundamental rights, this Court following the same tradition as handed over by judges of the Hon’ble Apex Court and this Court respectfully takes the intent to interpret the constitutional rights in favour of upholding and including new situations and challenges holds that right to parenthood and procreation is fundamental right of a convict in peculiar circumstances of a case,” the Court said.

The Court was of the view that being convicted and imprisoned does limit many aspects of a married life but the courts must consider how denying parole to the convict will impact his future life in the light of the principle that punishment after conviction is not to punish but to reform.

Justice Sharma was dealing with a plea filed by one Kundan Singh serving life sentence for murder.

After spending 14 years in jail, Singh approached the Court stating that he is 41-years-old and his wife is 38. They do not have a child and want to protect their lineage by way of procreating.

The Court was told Singh wants to get certain medical tests and the couple wants to have a child through In-Vitro Fertilization (IVF).

Their request for parole was rejected.

Justice Sharma considered the case and noted that the Delhi Prison Rules, 2018 do not provide procreation of children and parenthood as a ground for granting parole but that cannot stop a Constitutional court from granting such a relief.

"In this Court’s opinion, if the rules do not provide for a particular specific ground, it cannot bar a Constitutional Court to go beyond the specific mention of a ground and can, in the facts and circumstances of a case, interpret and adjudicate a prayer before it by referring to the intent and content of the Rules and the practical context in which they need to be interpreted,” the single-judge said.

The Court ultimately concluded that Singh and his wife have a genuine desire to protect and preserve their lineage and they are entitled to parole.

The Court, therefore, granted Singh parole for four weeks subject to certain conditions.

Advocate Ashutosh Kaushik appeared for the petitioner Kundan Singh.

State was represented through Additional Standing Counsel Rupali Bandhopadhya. 

[Read Judgment]

Kundan Singh v The State Govt of NCT of Delhi.pdf
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