Prison bars no bar for undertrials to marry, says HC

Saurabh Malik

Tribune News Service

Chandigarh, February 9

For a research scholar pursuing Ph.D. in physiology from Punjabi University, it was turning out to be a case of marriage delayed is married denied. Just about four months after her engagement with a law graduate from Panjab University, her father died resulting in the postponement of nuptials till after his first “barsi” (death anniversary).

The wedding was rescheduled for September 2013. But her fiancée was arrested in a murder case before they could tie the knot. Lodged in Nabha New District Jail since May 2013, he sought court’s permission to solemnise the wedding, but his plea was dismissed in December 2014. Determined to see it through to the end, the would-be bride moved the Punjab and Haryana High Court to allow her perform the wedding rituals.

Coming to her rescue, the court has made it clear that prison bars do not bar an undertrial from getting marriage. “In the instant case, this court is of the view that an undertrial prisoner, being presumed to be innocent, has a right to marry with someone who is not an undertrial like him/her and/or a person can marry an undertrial prisoner, if he/she desires,” Justice Rakesh Kumar Jain ruled.

Taking up the petition filed through counsel Surya Parkash, Justice Jain also made it clear that the marriage could only be performed outside the prison, as “jails cannot be converted into marriage palaces”.

In his detailed order, Justice Jain observed the question before the court was whether a person has a right to marry an undertrial prisoner and vice-versa.

Indubitably, there is a difference between a convict and “undertrial prisoner”.

“A convict suffers his sentence after conviction when his guilt is proved whereas an undertrial prisoner remains in jail and is presumed to be innocent till he is found guilty by the court.

“As regards performance of marriage with or by an undertrial prisoner, neither the petitioner has referred to any specific provision which allows the marriage nor have the respondents brought to the notice of the court any specific provision which prohibits the same except that an undertrial cannot be released on parole”.

Justice Jain also referred to the United Nations Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights on the right of men and women of marriageable age to wed. “Our courts have also held that the right to marry is a necessary concomitant of right to life guaranteed under Article 21 of the Constitution of India and if not a fundamental right, it is akin to it and so on and so forth," Justice Jain asserted.