In Path-Breaking Ruling, Delhi HC Says Child ‘Born Out Of Rape’ Entitled To Maintenance

Posted by Shikha Sharma in Gender-Based Violence, News
December 14, 2016

The Delhi High Court has held that a child ‘born out of rape’ is entitled to compensation, including things like ‘maintenance and support’ independent of any such relief granted to the mother. Activists have welcomed the judgement as a first step to initiate a conversation around the rights of children born out of rape, but cautioned more needs to be done to institutionalise support for such children.

Noting that there was no such provision under the Protection of Children from Sexual Offences (POCSO) act or Delhi government’s victim compensation scheme, the Court passed the verdict in a case in which a man has been sent to jail for his entire ‘natural life’ for raping his minor stepdaughter.

Organisations working in the area of child rights have called the judgement a game changer that will set a precedent for expedited compensation for child victims of sexual abuse.

“The judgment is path-breaking, to say the least, as for the first time the scope of compensation has been extended to a child born out of abuse. These children, who are born mostly out of no choice, are at a higher risk of being seen as a liability and thus in need of care and protection,” says Soha Moitra, Regional Director, Child Rights and You (CRY).

Moitra also added that the judgement shouldn’t be seen as an isolated case and that support to children born out of rape should be institutionalised.

“The mother, already battling with social stigma, in most cases will not have the financial means to support this child, hence making this judgment imperative. While this definitely reflects a shift in mindset, we need to ensure that the support to such children is institutionalised and does not remain merely as an individual case judgement,” she said.

The 14-year-old rape survivor had given birth to a boy in 2014. The trial court had convicted the man on the basis of DNA evidence that proved he was the father.

While upholding the child’s legal entitlement to get compensation from the government, the Court also set aside the ₹12 lakh compensation granted to the baby in the trial, adding since the baby had been given up for adoption, there were concerns of ‘privacy and confidentiality’.

The Court, however, has allowed the couple who adopted the boy to approach the legal services authority for compensation in their favour should they feel it necessary for them to claim it.

The Allahabad High Court, in a ruling earlier this year, had also battled for the rights of children born out of rape ruling that such children will have inheritance rights over the property of the assaulter – the biological father.

The Court had however added that if the child is given away for adoption, he or she will not have any rights over the property.