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Child born of rape has right to assaulter’s property – Allahabad HC


LUCKNOW: The Lucknow bench of the Allahabad high court on Tuesday ruled that the child born out of rape has inheritance rights in the property of the biological father.However, the right is subjected to the personal law to which the child belongs. “The child would be treated as an illegitimate child of the biological father. However, if he/she is given in adoption, the child will not have the right to inheritance,” the court said.

Delivering the judgment in the rape case involving a 13-year-old survivor, a division bench of Justice Shabihul Hasnain and Justice Devendra Kumar Upadhyaya the govt to pay Rs 10 lakh to her as maintenance. It has also asked the govt to ensure that the girl, whom the court has named as ‘A’ to conceal her identity, gets a job once she turns adult.

The girl, who belongs to a poor family, got pregnant after being raped earlier this year and recently delivered a baby girl. The family got to know about the pregnancy after the legal deadline of 21 weeks for safe abortion expired. The family moved to high court seeking permission to terminate the pregnancy. However, a panel of doctors appointed by the court said that abortion at this stage would be dangerous for the survivor’s life. She told the high court that it would be better to give the child for adoption as she cannot live in the society with the `shame’.
The court appointed a panel of senior lawyers to assist on the issue of inheritance of a child born from rape. “The matter relating to inheritance, the manner of birth of a person is irrelevant; the rights of inheritance of a person are governed by the Personal Law to which the person is subject irrespective of the manner of birth of the person. It is irrelevant as to whether the newly born child of a rape victim is born out of consensual sex or otherwise. It is thus noted that the rights of inheritance of the newly born child would be governed by her personal law and for that purpose she would be treated as an illegitimate child of her biological father,” the court observed.

In connection with the present case, the court said newly born girl could be given in adoption. It also said “if the newly born child is given in adoption, she will not have any rights of inheritance in the property of her biological father. Secondly, if the child is not taken in adoption by any one, no directions of the court would be required and she would inherit the property of her biological father by operation of the personal law by which she is governed.”

The court also made it clear that it was not giving any specific direction for inheritance of property in this case because it may have grave consequences, if father starts claiming some special reproach privileges over the minor like rights of visitation or custody, which is undesirable. Further, the court said, since the criminal trial is yet to commence against the alleged biological father, there is a possibility that a direction relating to inheritance in his property may be used by the accused in some form as his defence or even otherwise during his trial.

The court also said “The rights of inheritance in the property of a biological parent is a complex personal law right which is guided by either legislation or custom. It may not be possible to judicially lay down any norm or principle for inheritance by a minor who is born as a result of rape. Such attempt by the court would amount to legislation by judicial pronouncement and would operate as precedent in times to come. It would not therefore be desirable to venture into this field and accordingly we leave it open for the appropriate legislature to deal with this complex social issue.”

The court also defined another category of “victim” in the list of victims who are entitled for compensation and rehabilitation in case of crime against women. The court said that in the present case there are two victims – one the girl who was raped and second the child born from rape. “The newly born child is a victim in the sense that she/he is forced to live a life of shame and stigma without his/her fault. She/he is brought in this world destined to suffer because while the father refuses to lend his name to the child, the mother abandons her/him for social reasons. Injury to reputation is a violation of right to live with dignity. The child is the victim of circumstances. She/he definitely suffers injury of being left in this world to fend for himself without any support. She/he requires rehabilitation, therefore, we have termed the child born as a second victim,” the court said.

The court also said that monetary compensation was not enough and there should be a legislation for rehabilitation based on proper studies of rape survivors and children born from rape as it has been done in developed countries. “Cases of rape and sexual violence against women and children are increasing throughout India in spite of post-‘Nirbhaya’ amendments in criminal law in 2013 and enactments of other legal statutes,” the court added. “There is no data bank on various aspects of rape, rape victims, behaviors of children born out of rape, choice of victim to live with the child or to abandon it, the number of abandoned children and so on and so forth,” the court said. The amicus curie informed this court that the survivor is physically very weak and is suffering from the ‘Rape Trauma Syndrome’.

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