Baby Born To Rape Victim Is ‘Illegitimate’, Says Allahabad HC

Ambiguity follows Allahabad High Court order terming rape victim’s child as illegitimate, writes Rakesh Bhatnagar.

In gross violation of a Supreme Court order, the Allahabad High Court recently forced a 13-year-old rape victim to live in stigma and shame by describing the baby born as a result of the sexual assault as “illegitimate”. The high court judgement, delivered earlier this month, comes five years after the Supreme Court held that “illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate.”

The girl, who weighed a mere 30 kilos, was seven-and-a-half-months pregnant when a team of doctors opined that though termination of pregnancy at such an advanced stage would not threaten her life, an abortion was not advisable. The high court-appointed amicus curiae Jaideep Narain Mathur visited the girl while she was admitted in a Lucknow hospital.

Her parents had threatened that they would disown her as they couldn’t accept her “illegitimate” child. The rapist is the baby’s biological father but the high court judges refused to give him this status lest he pleaded leniency on the ground that he was the father of the child.

Declared ‘Illegitimate’ for Inheritance Purpose

By declaring the baby as “illegitimate”, the high court bench comprising Justices Shabihul Hasnain and DK Upadhyaya failed to deliver full justice to the rape victim and the baby.

Though the court directed that the girl be given free medical treatment and education in a boarding school and college, besides Rs 13 lakh compensation, the judges declared that the baby would be treated as an “illegitimate child of her biological father” for the purpose of inheritance governed by the personal law of her mother and irrespective of the manner of her birth.

In 2010, the Supreme Court had added a rider to its judgement, ruling that illegitimate children cannot succeed to the properties of any relative other than those of “the parents” or legally married spouses.

Negative Connotation

• Allahabad High Court in a recent judgement says that baby born to a rape victim should be treated as an “illegitimate child of her biological father” for inheritance purpose
  
• Different rules prescribed for unwed mothers and succession in different codes of religion

• The high court left the question of rehabilitation of the minor rape victim and her baby unanswered
  

Maternity vs Paternity

Muslim law accords the custody of “illegitimate” children to the mother and her relatives. The law follows the principle that the maternity of a child is established in the woman who gives birth to it, irrespective of the lawfulness of her connection with the begetter.

Paternity is inherently nebulous, especially when the child is not an offspring of marriage. The law governing Christians doesn’t accord any rights to an unwed mother but Hindu law enforces equality among a man and a woman in all fields of succession. Christian unwed mothers in India are disadvantaged when compared to their Hindu counterparts, who are the natural guardians of their “illegitimate” children by virtue of their maternity alone.

Well known jurist and former Chief Justice of India MN Venkatachalaiah maintained that no child is illegitimate though the source of its birth might be illegitimate. These assertions have been made to uphold the principle that the welfare of children is of “paramount importance” in the dispensation of justice.

What Studies Say

Though certain legislations have been enacted to deal with rapists and compensation to victims, there is a study to determine the mental, physical and social conditions of the victims of this horrendous crime.

The high court judges referred to Shauna R Prewitt’s article Giving Birth to a Rapist’s Child published in Georgetown Law Journal which says, “Pregnancy from rape occurs with significant frequency. Of the estimated 12 per cent of adult women in the US that have experienced at least one rape in their lifetime, 4.7 per cent of rapes result in pregnancy. Therefore, based on a 1990 study estimating that 683,000 women over the age of 18 were raped that year, conceivably 32,000 rape-related pregnancies occur annually. A separate study conducted in 2000 estimated that given the decline in the incidence of rape, 25,000 pregnancies following the rape of adult women occur annually.”

Quoting from the same article, the high court said that one study found that 50 per cent rape victims placed their infants for adoptions while 32.3 kept their infants. Another study found markedly different results, concluding that 26 per cent of women pregnant through rape underwent abortions. Of the 73 per cent women who carried their pregnancies to term, 36 per cent put their infants up for adoption and 64 per cent raised the children they conceived.

Question of Rehabilitation

The judges said that Indian society “can be compared to any other society in the world. The reactions of rape victims, children born out of rape and the society in general is definitely going to be different from one country to another because of its cultural, educational, economic and other factors. At the same time, data can help make the picture clearer.”

While holding that “rape is a crime beyond the control of a victim,” the judges said that the question of rehabilitation of a rape victim “can best be answered by the people and the masses and not by the courts alone.”

The high court left the rehabilitation of the minor rape victim and her baby to “the masses whose love and affection can save two normal lives from becoming two negative characters of the society in the future.” But the high court’s branding of the child as “illegitimate” itself was negative.

(The writer is a Delhi-based senior journalist.)