Child born out of rape has right on assaulter's property: Allahabad HC

In a major judgement, Allahabad High Court has ruled that a child born out of rape has inheritance rights over the property of the assaulter, the "biological father", and suggested that an appropriate law may be enacted by the legislative to deal with this "complex social issue".

A Division Bench, comprising Justice Shabihul Hasnain and Justice D K Upadhayaya, said the child will be treated as an illegitimate child of the rape accused and will have inheritance rights to his property. The court, however, added that if the child is given away for adoption, then he/she will not have any rights on the property of the biological father.

"We may observe here that in 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," the Lucknow bench of the High Court said on Wednesday.

"It is irrelevant as to whether the newly-born child of a rape victim is born out of consensual sex or otherwise," it said while giving ruling on the petition of a rape victim with regard to the fate of the newly-born baby girl.

"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 said.

The bench noted that 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, it said, adding 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 bench said. The girl, who belongs to a poor family, was raped earlier this year and got pregnant. She delivered a baby girl recently. 

The court, while giving ruling on the victim's petition, said, "Notwithstanding the aforesaid observations, it is relevant to note that firstly this question does not really need a judicial pronouncement in the present case for the reason that 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, even 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. Thirdly, any direction to inherit property of her father would be fraught with grave consequences in the event the father starts claiming some special reproach privileges over the minor like rights of visitation or custody.

"In the present circumstances, we feel that this is not desirable," the bench said.

In the context of the case before it, the court said, "Further, 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," it said.

The court gave the judgement on a writ petition and an application moved on behalf of minor rape survivor seeking a direction for her betterment and initiating the adoption proceeding of the new-born child as she and her father were not intending to keep the child with them.

The HC directed Uttar Pradesh government to provide an additional Rs 10 lakh compensation to a minor rape survivor and make arrangements for her free residential education up to degree level and employment thereafter. The state government has already given Rs 3 lakh as compensation.

The court also said that the amount of compensation should be kept as fixed deposit in a nationalised bank, which could be utilised by the minor after attaining the age of 21 year. It strictly prohibited every one from disclosing her identity and past circumstances at any stage. The court also directed to keep her new-born child in the hospital until the opinion of doctors for discharge.

"Thereafter, the child shall be handed over to the child welfare committee where adoption process may be completed under supervision of amicus curiae," the court said.

The HC had appointed a panel of senior lawyers to assist the victim on the issue of inheritance after she told it that it would be better to give the child for adoption as she cannot live in the society with the "shame".

The family got to know about the pregnancy after the expiry of the legal deadline of 21 weeks for safe abortion. The family moved the High Court seeking permission to terminate the pregnancy. However, a panel of doctors appointed by the court said abortion at this stage would be dangerous for the survivor's life.