A PAINFUL LEGACY- STATUS OF CHILDREN BORN OUT OF RAPE

Mrinal Gupta1 & Surabhi Sagar2

ABSTRACT

India is a country which needs social awakening in a lot of matters. The development of a
country is not only determined by its economic status but by the overall welfare of its people
and thus, being a ‘developing nation’ seeks or demands societal developments. Every citizen
of the country should have the right to live a dignified life. There is prevalent stigma
surrounding rape in the country. There are time and again heated discussions regarding the
anti-rape laws of the country. Rape victims are shamed and doubted every now and then. This
stigma surrounding rape is the main reason why children born out of rape have little to no
rights at all. They are treated as unspoken dirty secrets and are expected to live their lives like
that. In this paper, the condition of children born out of rape has been scrutinized. Thereafter,
their social and legal status has been demonstrated. The research is also aimed at making
suggestions and observations that the legislature should keep in mind while drafting
legislation in this regard.

1
2nd year B.A.LL.B Student.
2
2nd year B.B.A.LL.B Student
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INTRODUCTION

Rape is a horrifying reality in India. It is the fourth most common crime in the country. There
were 34,651 reported rapes in the country in 2015 as per the data released by the National
Crime Records Bureau. Out of these 34,651 cases, in 95% of the cases, the perpetrator is
known to the victim.3 Despite the rape statistics being so high in the country, there is a great
deal of stigma surrounding rape. It is a common and well known practice to shun people who
do not stand up to the ‘moral standards’ set by the society and this practice not only exploits
the victim for life, by not allowing them to move on with their lives but it also passes on this
systemized insensitivity down the generations. Morals are a sham in India. A country where a
rape victim is seen with doubt and shame, morals are being talked about like it is of utmost
importance. Such morals are one of the major reasons why a child born out of rape will never
be able to lead a life of dignity. A child born out of rape is despised and is seen with no
empathy whatsoever. The child is seen as an extended part of the rapist which makes him/her
a symbol of disgrace and shame. When a woman gets pregnant as a result of a rape, she is
assumed to have two choices like every other pregnant woman; to give birth to the child or to
abort it. In reality however, does she get to exercise this choice? A woman who is raped is
expected by the society to abort the child. If she decides to keep the child she is shunned by
the society and is looked at with disgust and disgrace. The child is considered to be the
product of a crime and hence is considered immoral. The child is made to suffer with no fault
of his own.
Article 21 of the Indian Constitution guarantees that no person shall be deprived of his life or
personal liberty except according to procedure established by law. 4 It has been said by the
way of various judicial pronouncements that the right to life includes within its purview right
to live a life with dignity and not mere animalistic existence.5 A child born out of rape is
deprived of dignity. The child is seen with disgust and is shamed in every walk of life. The
child is also a victim of the heinous crime. Every victim has a right to be compensated by the
state, primarily because the state wasn’t able to protect it from harm & loss of dignity.
Section 357(a) of the Code of Criminal Procedure was incorporated, for the state
governments to prepare in coordination with the central government a scheme called “Victim

3
Rape statistics in India (The Indian Express, 30 August 2016) < http://indianexpress.com/article/india/india-
news-india/over-34600-rape-cases-in-india-delhi-tops-among-union-territories-3004487/> accessed 19th
August 2017.
4
The Constitution of India 1950 art 21.
5
Kharak Singh v. State of UP AIR 1963 SC 1295; Maneka Gandhi v. Union of India 1978 AIR 597.
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compensation scheme” for the purpose of compensation to the victim or his/her dependents
who suffered loss or injury as a result of the crime.6 In 1985, the U.N. adopted the
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, which
outlines international best practices for treatment of crime victims.7 This declaration says that
the offender is obligated to make a fair compensation in order to rehabilitate the victim and
the Governments need to look into victim compensation so that it would result in fair
treatment and justice being meted out to victims. The child born out of rape is also an
innocent victim that has a right to live a dignified life. It is the State’s as well as the
offender’s obligation to support the victim and help him/her in living such a life.

SOCIAL STIGMA SURROUNDING CHILD BORN OUT OF RAPE

A major problem faced by rape victims and children born out of rape is the social stigma
surrounding them. We can question different practices like sexism or the patriarchal nature of
our society in this matter to find out what leads people to shaming a rape victim and
stigmatizing a child born out of rape. It would not be wrong to blame the patriarchal nature of
our society for the linkage of a child to his father more than his mother without any legitimate
reason. A child is given the surname of his/her father and starts belonging to the same
religion or caste of the father. However, the differentiation between a child born out of rape
and a child born otherwise needs to be made. A child might be planned or accidental, born
after or before marriage, in normal or special circumstances and every such factor decides the
child’s future as the society’s treatment is driven by such factors. A child born out of rape
becomes an objectionable element of the society and is at a major risk of facing intense
hatred and embarrassment in future. A mother who is the most caring and loving person in a
child’s life tends to hate him/her and the reason behind it is of great importance in order to
find the solution.

Like every other member living in a society, a pregnant rape victim’s perspective and
thinking is derived or influenced by the society to a great extent. She believes that the child is
an extension of the rapist. According to the society, if a woman gives birth to a child, it must
be of her husband and only that would make the motherhood ‘sacred’. There are morals
attached to the birth of a child just like everything else and it becomes the decision of the

6
Code of Criminal Procedure 1973, s 375(1).
7
Declaration of basic principles of justice for victims of crime and abuse of power". Un.org. 1985-11-29.
Retrieved 2014-01-02.
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family and society more than the mother herself. Now in the case of pregnancy out of rape,
where the rape victim is already facing doubts, infamy and humiliation, the risk of keeping
the child would be reckless. The society sets up a standard as to how a person must behave or
act to feel something and any diversion would only lead to intolerance and rejection. The
society does not accept that a woman is ready to keep the child of a man who raped her as
that child is supposed to be an unwanted, immoral and illegitimate extension of the rapist.
The norms that are set demand a woman to get rid of the child as he/she would be a
representation of the rapist in her eyes and others’. The child who is not even born yet is
referred to with utmost hatred and disgust and linked to a crime he/she had no control over.
Thus, rape proves to victimize the child along with the mother taking from him/her the right
to live a dignified life and being devoid of certain opportunities and facilities. Imagine the
repercussions on a rape victim of keeping the child and loving him/her. The attitude towards
a rape victim shows how insensitive the society can be at times. She is doubted when she
seeks help and compensation, and various possibilities are imagined like the woman might
have given her consent and later regretted it or that the woman might have done something
intentionally to exploit the man financially or to degrade his position in the society because of
any personal grudges. All this not only leads to normalization of the victim’s suffering but
links malicious intentions with them. A woman is not allowed to face the trauma or try to
overcome it in her own way and she must confine to the norms to prove herself to the society.
When a woman thinks of a child born out of rape as an innocent child and nothing more than
that and loves him/her just as a normal child would be loved the society reacts and ponders
why she does not feel horrible about the child like she is supposed to be. It is doubted if it
was really an unintended and unwanted event of her life. It can be safely assumed that the
trauma from rape would leave little courage and willingness for the victim to rebel for the
basic rights of inheritance and compensation for her child.

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RIGHT TO INHERITANCE & MAINTENANCE

Inheritance is one of the few rights of a child attained from the very moment of his/her birth.
Despite great importance attached to it, very little has been said by the way of legislation or
judicial pronouncement with regards to right of inheritance of children born out of rape.
There has been one popular judgment in this context. The judgment was given by a division
bench of Allahabad High Court (Lucknow Bench) consisting of Justice Shabihul Hasnain and
Justice D.K. Upadhyay.8 It can be said to be very progressive judgment considering the
negligible rights of children born out of rape in India. The case pertained to a child born to a
minor rape victim who due to medical complications could not terminate the pregnancy. She
did not have sufficient means to take care of the child, neither was she willing to because she
was not physically or mentally ready for the pregnancy. The father of the victim was also
unwilling to take care of the child due to financial constraints and because the child was the
reminder of the horror undergone by his daughter. The case basically focused on
rehabilitating the child since she was also the second victim of that heinous crime. The court
ordered the child to be given up for adoption, according to the wishes of the mother. The
question of child to be given inheritance and maintenance from the biological father, in case
it was not adopted, was an issue not discussed in detail and no meaningful arguments were
put forward by the counsels in that regard. The learned judges ruled that inheritance was a
matter of personal law. The child born out of rape shall be treated as an illegitimate child of
the offender. The issue of inheritance shall be dealt according to the personal laws of the
offender. The court also stated that the reason it refuses to give a judicial pronouncement with
regards to rights of inheritance of a child born out of rape is because it might lead to the
offender asking for visitation and custody rights of the child. A judicial pronouncement
guaranteeing the child rights to inheritance may also result in the offender using it as defence
when the trial for rape is instituted against him.

However, there seems to be a great lacuna in this rationale of not giving a decision with
regards to inheritance rights, adopted by the court. Firstly, a judicial pronouncement would
have helped to ensure that the child had certain rights. Leaving the decision to be governed
by the personal law of the offender is not a well thought step, primarily because an
illegitimate child has no rights of inheritance under Muslim law and Christian law. Hence,

8
"A" v. State of U.P. and Ors 2016(1) ALJ 625.
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had the perpetrator been a Muslim or a Christian, the child would have no rights to
inheritance at all. Along with that, the court should have drawn a distinction between an
illegitimate child and a child born out of rape. Even though in both cases the child suffers due
to no fault of his own, in case of an illegitimate child, usually he/she is supported by the
mother. In case of a rape child, due to societal pressure and shame, many a times the mother
too refuses to support the child. Then the child is put up for adoption, but owing to the fact
that the adoption rate in the country is extremely low, along with the stigma surrounding a
child born out of rape, the chances of the child being adopted are very less. In such a situation
it is extremely important that the child has some rights to inheritance from the biological
father’s property. Secondly, if we are to look at the Hon’ble High Court’s judgement, it
basically says that a rape child is to be treated like an illegitimate child of the offender.
Following that logic, illegitimate children irrespective of their religion have a right to
maintenance ensured to them via Section 125 of Code of Criminal Procedure, 19739. Even
though the court did not explicitly state anything regarding maintenance, this could be
implied from the ruling. If the court said it out explicitly, it would have been a binding
precedent on the lower courts. An important thing to be noted is the court’s reluctance to say
anything explicitly on this matter, the primary reason stated for which is that it might be used
by the offender as a defence or he might ask for visitation rights/custody rights etc.
Hypothetically, such a situation may arise, as it has arisen in many states in the USA,10 but if
we consider the well-established doctrine of ex turpi causa non oritur actio (from a
dishonourable cause an action does not arise) the man wouldn’t be able to have any claim
over the child. It is a well-known fact that one cannot benefit from his own wrongdoing, so it
could be made sure that the offender cannot claim it as a defence nor can he claim custody or
visitation rights. Another way to prevent this abuse of the court’s orders by the offender can
be by enacting a legislation which bars rapists from claiming custody or visitation privileges,
but considering the fact that there is no legislation enacted yet with regards to children born
out of rape, the possibility of such a legislation being formed in the near future is very faint.

9
Code of Criminal Procedure 1973, s 125.
10
Where rapists can gain parental rights (CNN, 17 November 2016)
http://edition.cnn.com/2016/11/17/health/parental-rights-rapists-explainer/index.html> accessed 17th August
2017.
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RIGHT TO COMPENSATION

Lately, a division bench of the Delhi High Court of India adjudicated upon the case of a 14
year old girl of Delhi who was raped and impregnated by her stepfather. An appeal was laid
against the order of the trial court by Gaya Prasad Pal who was the accused.11 The court took
into account the rights of both the rape victim and the child thus born declaring both of them
as victims. In this case, not only the decision of life imprisonment of rapist was upheld by the
High Court but rights were also provided to the child born out of rape and compensation was
provided including “maintenance and support” to the child born.12 It is the victimization of
the child born that brings up his right to be compensated independent from his mother as was
held by the bench of Justice Gita Mittal and Justice R K Gauba in its judgment on 9th
December, 2016 in this case. The bench said that the entitlement of the child was traced to
provisions of compensation to victims of sexual assault under Section 357 of the CrPC as
well as under the POCSO Act13, since such a child would be ‘encovered under the definition
of both victim as well as dependent on the victim’.14 The compensation granted to the child
by the government is a must because the government failed to provide protection to the
mother and validation of the child. However, in this case, the bench of High Court had set
aside the compensation which was granted by the trial court as the child was given for
adoption and his privacy and confidentiality were a matter of concern for the court as it could
hamper the child’s future welfare.15 Notably, the court gave permission for the parents who
adopted the child to claim the compensations on his behalf from the legal service authority of
the state if they felt the necessity of the same.16 This was a commendable step to ensure
financial security of the child to some extent.

As stated by Justice Shabihul Hasnain, in the case of “A” through her father vs. State of

11
Gaya Prasad Pal @ Mukesh vs State 2017ALLMR (Cri)1.
12
Aneesha Mathur, ‘Child born out of rape is entitled to compensation, says Delhi High Court’
<http://indianexpress.com/article/india/child-born-outof-rape-is-entitled-to-compensation-says-delhi-high-
court-4425942/> accessed 16 August 2017.
13
The Protection of Children from Sexual Offences Act, 2012
14
Akansha Jain, ‘HC: child born out of rape entitled to compensation’
<http://www.thehindu.com/news/cities/Delhi/HC-child-born-out-of-rape-entitled-to-
compensation/article16802429.ece >accessed 16 August 2017.
15
Shikha Sharma, ‘In Path-Breaking Ruling, Delhi HC Says Child ‘Born Out Of Rape’ Entitled To
Maintenance’ <https://www.youthkiawaaz.com/2016/12/provisions-for-child-born-out-of-rape/ > accessed
16 August 2017.
16
Aneesha Mathur, ‘Child born out of rape is entitled to compensation, says Delhi High Court’
<http://indianexpress.com/article/india/child-born-out-of-rape-is-entitled-to-compensation-says-delhi-high-
court-4425942/> accessed 16 August 2017.
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U.P and Ors., a child born out of an illegal act or sexual abuse of a minor, the victimization
of the new born child can be explained by the reason that he/she is not able to lead a dignified
life and leads a life of shame without any fault of oneself.17 The injury to reputation violated
his right to life with dignity granted under the article 21 of the Constitution of India, 1950. In
the case of Bandhua Mukti Morcha v. Union of India18 it was held that for the children of
tender age, protection against abuse, opportunities and facilities for them to develop in a
healthy manner and in conditions of freedom and dignity, educational facilities, just and
humane conditions of work and maternity relief are must under Art 21 of the Indian
constitution.19 The child born out of rape can legitimately and safely be declared a victim of
circumstances and requires rehabilitation.

Advocate Varun Goswami after the Delhi rape case stated that it could now be hoped from
the Indian Legislation to look into this matter and make provisions for such circumstances
where a child is born out of rape.20 The government has not made any provisions regarding
this matter which intensifies the struggle of children born out of rape and their victimized
mothers. Co-director of the NGO HAQ Center for Child Rights, Bharti Ali also expressed her
relief after the Delhi case as this judgment could now be a precedent to endure compensation
rights of such children.21 It is very essential for the Indian legislature to pay attention to this
social stigma and make provisions for the relief of innocent children born out of rape.

17
"A" v. State of U.P. and Ors 2016(1) ALJ 625.
18
Bandhua Mukti Morcha v. Union of India & Ors. (1997) 10 SCC 549.
19
The Constitution of India 1950 art 21.
20
Aneesha Mathur, ‘Child born out of rape is entitled to compensation, says Delhi High Court’
<http://indianexpress.com/article/india/child-born-out-of-rape-is-entitled-to-compensation-says-delhi-high-
court-4425942/> accessed 16 August 2017.
21
‘Child born out of rape is also a victim and is entitled to compensation: Delhi
HC’<http://www.thenewsminute.com/article/child-born-out-rape-also-victim-and-entitled-compensation-
delhi-hc-54259> accessed 16 August 2017.
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CONCLUSION AND SUGGESTIONS

The situation in the country is deplorable in respect to the rights of a child born out of rape.
Neither has there been any proper legislation in this regard, nor any judicial pronouncement
by the apex court of India which protects the rights of these children. The flaws in the
Allahabad High Court judgment prove that there is prompt requirement for legislation. The
court also pushed for the need of legislation saying that it cannot give a pronouncement with
regards to rights of child born out of rape because this would be substituting legislative
wisdom with judicial wisdom. There are certain limitations that the court has to abide by.
However, there are certain things that the legislature should keep in mind while drafting the
statute.
 After observing the social scenario and the stigma surrounding rape victims in India,
it is obvious that in order to make an adequate legislation, the government needs to
have proper data regarding rapes and pregnancies resulting out of it. There is very less
data available and that too is not credible, primarily because thousands of rape victims
do not report the rapes. This non-reporting of rapes can be curbed by removing the
stigma surrounding rape. Also, NGOs can be helpful in providing data regarding rape
and condition of children born out of rape because they are more in contact with the
ground reality.

 The assumption about the right claimed by the rapist for visitation over the child born
out of rape is outrageous and wrong at many levels. The perspective and approach of
the legislature in this regard should be empathising with the victim and not with the
offender. It is very necessary to see the offender as the culprit of the child. He is the
one who is responsible for his/her ruined condition of life and any other connotation
would be tragic and agonizing. Giving him any sort of parental rights over the child
would have devastating effects both on the mother and her child. It would bring great
discomfort and manipulation in their lives and such rights would only lead to more
abnormality in life for both of them. Such observations have also been made in the
seven states of U.S where rape victims can be legally forced to share custody of their
children with the rapist father.22 The offender should pay for his wrong and not derive

22
Cristina Corbin, ‘In 7 US states, rape victims can be legally forced to share custody of their children with their
rapist fathers’ (Fox News, 21 April 2017) <http://www.foxnews.com/us/2017/04/21/in-7-us-states-rape-
victims-can-be-legally-forced-to-share-custody-their-children-with-their-rapist-fathers.html > ( Last accessed
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 any good out of it. Hence the government should keep this in mind while drafting a
legislation and see to it that it can prevent this abuse of power by the offender.
 The government should ensure that a rape victim is free to make a choice regarding
her pregnancy unaffected and unhampered by the society. Any discrimination with
her or her child should be prevented and the legislature must make strict laws to
ensure this. The victims need empathy and acceptance in our society, as hostility
towards them would lead to major problems which can negatively affect their health,
status, temper, habits and impede their recovery process.
 Support groups for rape victims and children born out rape should be promoted by the
government. Support groups are very important as they help the victims in the process
of rehabilitation. They make the victims feel less alone and give them strength to deal
with their ordeal. They also help the child face the stigma surrounding him/her. There
are no such support groups in India dealing with children born out of rape.
 The victim compensation scheme should also be revised to take into consideration the
needs of children born out of rape and their mothers. In order for the rape victim to be
able to freely exercise her choice over the pregnancy, abortion should be subsidized
for her since abortion should not be only accessible to the rich. However, if she
wishes to keep the child, the State should bear the expenses or delivery and post-natal
care. The State has an obligation towards the child and the rape victim since it was not
able to protect them. The victim compensation scheme should be amended so that
enough compensation is given to the victims so that they can lead a normal dignified
life.

The government and the society have failed to alleviate the sufferings of the rape victim and
the child born out of rape; the government by not having proper legislation in order to protect
their interests and the society by victim shaming them. The children born out of rape have
suffered a lot because they have been ignored for too long and therefore, this issue needs to
be addressed before the situation worsens.

“Rape survivors are victims, their children are forgotten victims.

~ Andrew Solomon, Far from the Tree.”

16 August 2017)
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