Marriage has been upheld since time immemorial as the primary social institution, with conjugal rights forming its foundation. These rights, consisting of emotional companionship, cohabitation, and procreation, are considered key to the sanctity of marriage. But then arises the question as to whether the conjugal rights exist within the four walls of a prison cell. On a further note, can such a basic right to liberty and human dignity be sustained in a carceral space characterized as it is by systemic neglect and structural inequality? This question takes on added complexity in the case of women prisoners, a minority in the incarcerated population, and with a vast majority coming from socio-economically marginalized backgrounds. Hence, the discourse on conjugal rights must proceed past the abstract legality and engage in the stark realities of prison life, reproductive autonomy, and human dignity through an intersectional perspective. This blog analyzes the many aspects of conjugal rights in Indian prisons, especially for women prisoners, and the implications that come with granting such rights within an inherently patriarchal and grossly under-resourced correctional machinery.

Intersectionality In Carceral Spaces: Demographics And Women’s Rights

The discussion on conjugal rights within prisons cannot be adequately comprehended without the intersectional dynamics constituting incarceration spaces. Indian prisons stand as symbols of deep-rooted societal oppression, in which class, caste, gender, and religion define one’s experience of incarceration. In the latest Prison Statistics India, more than 70 percent of the prisoners are undertrials, the majority hailing from marginalized communities such as Dalits, Adivasis, and Muslims. Women prisoners are an especially vulnerable category. Being a minority (about 4 percent of the total prison population), women prisoners have been rendered invisible in policy discussions on their needs. Intersectional identities-as women, belonging to often socio-economically weak groups-make the marginalization greater in a system actually designed by and for men. The denial or neglect of conjugal rights for women prisoners is not only a gender issue but rather a larger rights concern for marginalised women touched upon by structural inequities within our legal and penal systems. These often have their reproductive autonomy undermined, with access to at least some mental and physical healthcare, or even their right to family life being curtailed. Therefore, any discussions of conjugal rights must take an intersectional approach that appreciates the multidimensional character of identities and systemic barriers which bear upon the lived experiences of women behind bars.

Conjugal Rights In Law And Matrimony

Man, by nature, is a social animal.^[i] It implies that humans are inherently inclined to express themselves physically, emotionally, or behaviourally by the formation of associations or lifelong companions. Human beings instinctively seek a lifelong union with a partner, sharing deep emotional bonds and physical intimacy as an essential part of their existence.

Conjugal rights may be defined as “ the rights of the couples to have each other’s society and have marital intercourse.^[ii]  A  marital bond is based on obvious concepts such as both spouses are under a necessary obligation to live together both physically and emotionally i.e., consensual consortium.^[iii]” Per the Black Law Dictionary, “conjugal rights are the rights and privileges arising from a marriage relationship, including the mutual relationship of companionship, support, and sexual relations”. “Conjugal Visit implies a visit (to a prisoner by husband or wife) in which a married couple is able to have sexual relations.” The words aforesaid are commonly used when one of the partners denies the companionship to the other.^[iv] Courts in India have understood Conjugal rights‘ to have two key ingredients: Cohabitation and Sexual intercourse. Under the legal scheme in India, a spouse is entitled to a decree directing his other spouse to cohabit and take part in sexual intercourse. In India, it may be borne in mind that conjugal rights i.e. right of the husband or the wife to the society of the other spouse are not merely creatures of the statute. Such a right is inherent in the very institution of marriage itself.^[v]

 Conjugal rights are not just rights these are the building blocks of a matrimonial bond. Considering the above-mentioned, it is clear that the prisoner’s Conjugal rights mean their marital rights. These rights are integral to matrimonial relations and it include the rights to associate together, build a home together, and enjoy all the privileges of an interpersonal relationship together, including the right to have ‘sex’ and ‘procreation’.

Jurisprudential Perspective On Conjugal Rights Of Prisoners

Article 21 provides for the right to life and personal liberty which also includes the right to dignity of the prisoners incorporating their conjugal rights. The judiciary on the question of preserving familial relations and fundamental rights of the prisoners has been quite merciful in recent times.^[vi] The Punjab and Haryana High Court in Jasvir Singh has recognized the conjugal rights of the prisoners as an integral part of Article 21. It underscored that procreation is an essential facet of human dignity and liberty. Incarceration may justify reasonable restrictions, but it cannot extinguish these rights altogether. Further, on similar lines the Delhi High Court also held “familial relations” to be well within the scope of Article 21. There isn’t any doubt that the right to a meaningful family life, which allows a person to live a fulfilling life and helps in retaining her/his physical, psychological, and emotional integrity would find a place in the four corners of Article 21 of the Constitution of India.^[vii] Conspicuously, in furtherance of the said jurisprudence, Punjab became the first in India to allow prisoners conjugal rights. No court has held conjugal visits as an undesirable practice, illegal, or violative of fundamental rights. Therefore, there is no legal bar to such a practice. However, notably, while deciding whether the denial of conjugal rights to a convict prisoner would amount to denial of such a right to his/her spouse and thereby, violative of Article 21 of the Constitution of India, the Madras High Court has underscored that “a convict cannot enjoy all the liberties as are available to a common person, otherwise, there would no difference between a law-abiding citizen and a law-violating prisoner.^[viii]”

Advocacy For Women Prisoners: Human Rights Dilemma And Institutional Barriers: Women Prisoner

In contemporary times the Judiciary is acting as guardian of the conjugal rights of the prisoners^[ix], but whether this will be a boon or a curse for the state is the fundamental question. Unarguably, a difference has to be made between the law-abider and violator.^[x] However, the subject matter possesses far-reaching implications and goes beyond a mere surface-level understanding of the right to family, procreation, or any number of such synonymous terms. Substantially, what rather requires paramount consideration is the rights of the expectant women prisoner and the prospective child.

The conditions of prison in terms of its population and quality of food are a known fact. It is not important to emphasize the occupancy rate in prison already stands at 130.2% and the resulting shortage of sufficient medical services, sanitary conditions and diet, out-of-date and deteriorated buildings, scarce accessibility to leisure activities, the lack of proper mental health resources, massive figures of undertrials in prisons, insufficient prison staff and limited resources for education & vocational training.^[xi] This is despite established standards for the above deprivations.^[xii] Such lacunas come with a grave worry for the expectant women prisoners and the forthcoming child. The provision of conjugal visits, if adopted in the Indian correctional services, would naturally come with an increased number of expectant women prisoners. This would certainly exacerbate the said deprivations and would pose severe apprehensions over human rights

A woman’s nutritional status during pregnancy and breastfeeding is not only critical for her health but also for that of future generations. According to reports, “to maintain a healthy pregnancy, approximately 300 extra calories are needed each day.” In pregnancy, the quality of food is more important than its quantity. With prevailing deprivations, the existing prison system, in no manner whatsoever, is in a condition to provide adequate care and fulfil such requirements for expectant mothers. The lack of nutrition and inadequate facilities make it impossible to ensure standard medical support and care essential during pregnancy.

Meagre and substandard medical care would significantly affect the health of the mother and consequently, the child, which would be a clear infringement of the fundamental human rights of the mother and the child. An expectant woman is entitled to the highest standard of healthcare and nutritional value. Article 25(2), of the Universal Declaration of Human Rights (UDHR) provides that “motherhood and childhood are entitled to special care and assistance.” The right to food, nutrition, and health has also been recognized within the ambit of Article 21.^[xiii] The provision of conjugal visits would undoubtedly result in adverse consequences and a harsher and hostile environment for the women prisoners.

Whereas, the worry is not just limited to the mother, but there is a rather more pressing predicament for the forthcoming child. The development of young children is nowadays recognized as a development and human rights issue of critical national importance. Early childhood development, spanning from birth to the age of six years, is the period that sees the most rapid growth and development of the entire human lifespan. Law Commission Report on Early Childhood Development and Legal Entitlements noted that “it is during this period that the foundation of cognitive, physical, and socio-emotional development, language, and personality is laid.”^[xiv] Sigmund Freud asserted that “personality develops during early childhood and that childhood experiences shape our personalities as well as our behaviour as adults.” In accordance with Freud, there are stages of development during childhood that each should pass through. If there is a lack of proper nurturing and parenting during a stage, a person may even be stuck, or fixated, in that stage even when grown up. The prison would pose the child with significant psychological challenges which would hinder his/her development. A child born and brought up in a prison would institutionalize adverse personality traits which inter alia may include distrusting others and social disorientation. The child when facing the real world would face extreme difficulty in maintaining relationships and may also suffer from social temporal alienation. A jail, under no circumstance, can provide a suitable environment for the proper psychological, social, and emotional development of a child. The key idea is why the child is made to suffer for his/her mother’s deeds. A child who spent his childhood days in jail would not be fit for normal functioning in a social setting. The best interests of the future generation of young minds must be taken into serious consideration and given utmost priority before contemplating the conjugal policy for the prisoners.

Therefore, if women prisoners exercise their right to procreation, then it is an irrefutable fact that such an exercise would amount to dire non-compliance with the human rights standards unless a transformative breakthrough happens in the Indian correctional services, failing which the idea of conjugal visits must be abandoned. The conjugal rights policy, if contemplated in the existing system, would be nothing short of a disaster and would lead to catastrophic consequences.

Furthermore, the policy of conjugal rights for prisoners would come with egregious practical ramifications. Such a policy could be misused by those in extreme economic hardship, turning it into a means of having a child and relying on the state to bear the cost of raising the child for six years. In such cases, the destitute would resort to criminal activities to get access to jail where at least survival could be expected. This would be a shocking display of lawful dacoity on public finances.

Conclusion

Whereas reproduction and conjugal rights are the mainstay of marriage, establishing such rights in jails faces serious constitutional issues and practical problems. Conjugal visits would severely jeopardize human rights unless there was a radical remodelling of the infrastructure, medical facilities, and childcare facilities for those utilities. With an intersectional view, it becomes apparent that the overwhelming majority of systemic neglect is borne disproportionately by women of marginalized communities. Hence, except on a revolutionary change of the correctional facilities, affording these rights would amount to turning correctional facilities into breeding grounds for suffering.

[i] Young, C.M., Aristotle: Politics, Books I and II, 109 Phils. Rev. 87 (2000)

[ii] B.M. Gandhi, Hindu Law 277-78 (2d ed. 2003) (Eastern Book Co. Ltd.).

[iii] Sir Dinshah Fardunji Mulla, Mulla Principles of Hindu Law 895 (21st ed. 2010) (Satyajeet A. Desai ed., Lexis Nexis Butterworths).

[iv] Meharaj v. State, 2022 SCC OnLine Mad 381, ¶ 15.

[v] Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90, ¶ 14.

[vi] Generally, see Sunil Batra v. Delhi Admn., (1978) 4 SCC 494; D. Bhuvan Mohan Patnaik v. State of A.P., (1975) 3 SCC 185; R.D. Upadhyay v. State of A.P., (2007) 15 SCC 337.

[vii] See Lakshmi Bhavya Tanneeru v. Union of India, 2021 SCC OnLine Del 4994; see also Sarla Mudgal v. Union of India, (1995) 3 SCC 635.

[viii] Meharaj v. State, supra note 5, at ¶ 23

[ix] see Saksham Patiyar and Vaibhav Bansal, ‘Reforming Prison Visitation: Conjugal Rights and Policy Gaps in India’ (2025) GEHU Law Review 234 https://gehulawreview.com/wp-content/uploads/2025/07/15.pdf.

[x] Meharaj v. State, supra note 5, at ¶ 26

[xi] Parliament of India, Rajya Sabha, Department-Related Parliamentary Standing Committee on Home Affairs, Two Hundred Forty-Fifth Report on Prison – Conditions, Infrastructure and Reforms (2022).

[xii] Generally, see Model Prison Manual, 2016, Ministry of Home Affairs, Government of India.

[xiii] People’s Union for Civil Liberties v. Union of India, (2007) 12 SCC 135.

[xiv] Law Commission of India, Report No. 259, Early Childhood Development and Legal Entitlements (Aug. 2015).