Allahabad HC Order on Child of Rape Reinforces Patriarchal Notions

Allahabad High Court has erred in its observation on the rights of children of rape victims on assaulter’s property.

A stray observation made by the Allahabad High Court, with respect to the inheritance rights of children born as a result of rape, in a judgement delivered on November 3, has attracted attention for all the wrong reasons.

While deciding on a matter arising out of a petition filed by a minor rape victim, seeking permission for the termination of a pregnancy, the high court strangely forayed into a range of issues including the status of the child born as a result. Admittedly, the judgement adds nothing to the existing legal framework on compensation for rape victims.

The decision makes generous references to precedents and provisions of the Criminal Procedure Code, like Section 357, which lays down the compensatory mechanism for victims of crimes. However, it is erroneous in several of its approaches and assumptions. By observing that entitlement to property is an appropriate response to violent crimes against women or the consequences of such crimes, the court has recklessly reinforced patriarchal notions around rape.

Irrational Reasoning

The language of the decision reiterates rape as a matter of ‘shame’ and social isolation, while also identifying the children, born as a result of rape, as the second set of victims. The court’s reasoning falls short of rationality on many grounds.

First, the decision has erred in observing that children born as a result of rape incontrovertibly inherit property from the ‘biological father’ i.e. the alleged offender, and stand on similar ground as illegitimate children.

Although the decision admits that it is a casual observation, unsupported by any directive or definitive legal analysis, it was unwarranted. While it is true that individuals are governed by their respective personal laws in matters of inheritance, both the concept of ‘illegitimate children’ and child-parent relationships have specific connotations embedded in hetero-normative relationships.

For instance, under Hindu Law, the definition of an ‘illegitimate child’ is strictly limited to children born out of void or voidable marriage. None of the personal laws define who a parent is. A recent decision from the Gujarat High Court approvingly cited the Family Relations Act, 1996 from the British Columbia which conceives parents as being within the bounds of marriage or a marriage-like relationship.

Missing Sensitivity?

• By observing the entitlement to property as an appropriate response, the court has recklessly reinforced patriarchal notions around rape
  
• If the child born as a result of rape needs to be supported, then the issue should be addressed by ensuring rehabilitation by state-run mechanisms
  
• By using the language of relationships and property rights the court has eroded the gravity of the offence
  

Supporting the Child

Second, there is evidently no relationship that arises out of a crime. If the child born as a result of rape needs to be supported, then the most rational arrangement would be to give it up for adoption through legal channels or engage state-run mechanisms in its rehabilitation.

Unarguably, the child would fall within the definition of child in need of care and protection under the Juvenile Justice Act, if the minor rape victim or her family are unwilling to accept the child, as it was in this case. The foundations of the criminal justice system would be let down if compensation is carved out of property relations which are strictly in the realm of civil matters.

Conflicting Judgement

Further, it would complicate the matter as inheritance claims cannot leave out the mother of the child as per procedure; the identities are of great significance within property claims. This would be in direct conflict with the anonymity of the rape victim and interfere with effective rehabilitation of the woman.

However, the critical point of observation in this decision is the complacency with which the court has treated the matter of rape. It has failed to recognise that an act of rape is an act of violence against the physical integrity of the woman.

Has the Court Displayed Insensitivity?

Rape can only be dealt within the approved framework of the criminal justice system, and a response, apart from that of punishing the offender, can only be conceived between the binary of compensation for and rehabilitation of the victim. By using the language of relationships and property rights, the court has eroded the gravity of the offence.

In the text of the decision, the court admits that it is indifferent to the ease with which compensation can be availed and goes no further than suggesting that the state should focus on comprehensive rehabilitative mechanisms. One wonders if the court would have fared better by remaining superficial, instead of this inappropriate and equally inconsistent remark.

(The writer is a Research Fellow at Vidhi Centre for Legal Policy).