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CA Ankit Rajgaria

A curious yet a serious observation made by a court in a recent judgment few days ago; a child born out of forced sexual association i.e. rape can inherit rights in the property of his/her’s biological father. It’s shameful to see the percentages of rapes in India after the Nirbhaya’s case scaling high on bar graphs but an observation akin above can turn the tables down for the men who disown the mothers as well as the children born out of such forced association.

In a plea for termination of pregnancy by a 13 year old girl, the Lucknow Bench of Allahabad High Court observed that 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 association 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. Guiding further the Court also stated that if the newly born child is given in adoption, he/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 he/she is governed.

But the court made it clear that it is exploring into an un-ventured field as there is no legislations on this complex social issue as such. Also, did the court mention that the rape child is the second victim in such cases and sensed the trauma/shame a child experiences. The Court said that a monetary compensation is not suffice for the stigma a child faces and expected a speedy and proper study on the compensations and rehabilitation of the victim as well as the child ( the second victim).

Food for Thought : Those who rape women and disown them later, can’t they be held responsible for the child, who was born out of the forced association, no matter several law cover them in “Illegitimate Child” or not ? Can the child be allowed a stake in property his/her’s biological father? Or are we fair enough by just sentencing them to jail under the prescribed Acts? Or can’t we standardize the punishment so that the mere thought of raping a girl scares them? Will proposed new amendments in the Acts stand upright as watchdog between rapists and victims as a token to justice to aggrieved?

The courts of India are chaired by the old and wise; Are their observations so baseless to form some substance for the great legislations?

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May 2024