RIGHT TO MOTHERHOOD

A Fundamental Right

Kusum, M.A.; LL.M., Former Research Professor, Indian Law Institute

A woman seeks cohabitation with her husband who is in jail claiming that the “right of motherhood” is a part of her fundamental rights. She is a thirty-one years old nurse whose husband is in prison undergoing sentence in a criminal case. She has filed a petition before the Punjab State Human Rights Commission (pshrc) claiming that she cannot be deprived of her right to motherhood merely because her husband is serving a jail sentence. Her argument is that as a married woman, the right of motherhood is a part of her fundamental right to life and liberty as enshrined in article 21 of the Constitution of India. Article 21 says : “No person shall be deprived of his life or personal liberty, except according to procedure established by law.”

In the context of this issue, a reference may also be made to article 16(1) of the Universal Declaration of Human Rights, 1948, which says : “Men and women of full age... have the right to marry and found a family.”

In the backdrop of these provisions, the question that arises is whether an imprisoned man’s wife’s petition for cohabitation in fulfilment of her “right to motherhood” tenable?

So far as article 21 of the Constitution is concerned, it may be pointed out that it has many facets. While the courts have, by their liberal construction of the provision, added new dimensions to it over the years, the issue is, can it be stretched to accommodate the desire for motherhood by enabling her to cohabit with her husband who is in jail? Is the right to motherhood such an inviolable and absolute right which has to be conceded and facilitated in every situation?

As regards the ‘human right’ under the Declaration of Human Rights, while a right to marry and found a family has been given is this right unconditional? Can it be said that once a man and woman reach full age, they have an unrestricted right to marry and have children – irrespective of any conditions (like health), or situations (like imprisonment)?

Reference may be made to two cases, which have some bearing on the issue. In Sandhya v. Union of India (Bombay High Court, 1998) the validity of a section of the Hindu Adoptions and Maintenance Act, 1956, which puts a bar on the adoption of more than one child of the same gender, was challenged as being violative of inter alia, article 21 of the Constitution. It was argued that the courts have recognised the right to live with human dignity as a fundamental right and the right to have a size of family according to one’s choice is a component of the concept of human dignity. The petitioners here had already adopted a daughter and were prevented from taking another female child. The court held that the article cannot be stretched to accommodate every personal desire. Doing so would be “seriously wrong and totally inappropriate” according to the court.

In the other case, Mr. X v. Hospital Z (1999), the Supreme Court held that a person’s right to marry cannot be accepted in absolute terms. Marriage is a sacred union, legally permissible, of two healthy bodies of opposite sex. According to the court, a person who is suffering from any veneral disease has no right to marry so long as he is not cured. “That person must be injuncted from entering into marital ties so as to prevent him from spoiling the health, and consequently the life of an innocent woman.” In this case, the appellant was found to be HIV positive in the course of a blood test and the hospital authorities divulged this information as a result of which his marriage was called off.

Viewed from another perspective, if the right to motherhood were to be construed as a fundamental right, would this imply that couples unable to have children in the normal natural course would, as a matter of right, be entitled to seek resort to assisted reproductive procedures at State expense and have this right enforced in case of denial? It would seem not!

In the case at hand, it is not as if the husband has been arbitrarily confined and kept in jail. He is undergoing a sentence, which has been imposed after observance of procedure established by law. Incarceration inevitably entails several restrictions and handicaps for the person serving the sentence as also for others who are closely connected with him. Judicial pronouncements have considerably improved and widened the rights of under-trials and convicts; measures are also being taken to safeguard the interests of their families but to argue that a woman whose husband is in jail after due trial, cannot be deprived of motherhood “merely because her husband is serving a jail sentence,” would be far from logical.

Also, what is it that is expected of permission to allow cohabitation? Periodical visits until she conceives? This may be achieved in one visit or it may take several visits; or it may not be achieved even after several opportunities?

It would thus appear that seeking cohabitation claiming the right to motherhood as a fundamental right is neither expedient nor viable. However, another aspect can be looked into. Marital and family contacts are a vital part of life of any human being and imprisonment is often destructive of the family unity and harmony. One way to combat the evil consequences of imprisonment on family life is to permit conjugal visiting. This can be done by permitting the prisoner a home furlough or by allowing in-prison visitation of the spouse. Some countries allow conjugal visiting for prisoners by giving home furloughs and providing in-prison visitation facilities to partner. This gives support to the marriage during the separation period. Long imprisonment is a ground for divorce under many family law statutes. If contacts are maintained, such break-up may be avoided. Besides, deprivation of heterosexual conduct has psychologically destructive effects on inmates. It leads to homosexual activities and other tensions, which find release through undesirable means. Conjugal visiting in case of deserving prisoners who qualify certain conditions could mitigate these effects. Some countries including India, are experimenting with prisoners colonies where the prisoners are allowed to keep their families.

Allowing home furlough to prisoners is another way of conjugal contact.

In the instant case the factors that seem to be weighing with the authorities are (i) whether the woman already has children; (ii) and her age at the time of her husband’s release, because a woman can conceive upto the age of 40 years. “If the husband is likely to be released before she attains that age, the matter could be looked at differently”, according to the Pshrc. These remarks of the Commission seem to convey that if his release is to come after the wife attains that age then it is not unlikely that her case may be conceded.

The issue needs to be looked into very discreetly lest it opens a pandora’s box. It would be more expedient to build up a case for commuting the prisoner’s sentence rather than accepting motherhood as a fundamental right in such cases. Today it is a wife’s right to motherhood; next it could be her other rights; or rights of the husband of a convicted female to fatherhood; or rights of those closely connected or affected by the imprisonment.

The list could be endless.