How courts can end shaming of rape survivors

On November 3, the Allahabad High Court issued a number of directions for the rehabilitation of a 13-year-old rape victim and her eight-day-old unwanted daughter. The court ordered a compensation of Rs 10 lakh over and above Rs 3 lakh already granted by the state, security, free quality education and thereafter employment to the victim while also seeking efforts to find adoptive parents for the child born out of rape.

No doubt, the judgement deserved headlines for setting a new benchmark for rehabilitation of rape victims. But observations buried down in the judgement reflect the biases, the patriarchal mindset and the conservative perception of sexual violence against women. The judges have referred to the rapist as the father of girl child born out of rape, talked about the possibility of the rapist seeking custody of his daughter and even offering a share in his property as per her entitlement as his daughter. It is high time courts realise that fighting biases was as important as punishing rapists or rehabilitating victims.

In what clearly seemed to be a misadventure by the court, it unnecessarily decided to explore possibility of claim by a child born out of rape in the property of the rapist. Though it finally left the matter to be settled by the legislature, it was not before making observations which, according to me, downplay the gravity of rape as an offence.

Coming to the girl child born out of rape, the court, despite having decided to direct efforts at adoption, stressed that it proposed to consider her rights of inheritance “in the property of her father”. Though the court concluded that the girl child would have a right to the property of the rapist, it stressed that it was consciously not passing any order as it would give an option to the rapist to seek her custody.

The court said “any direction to inherit property of her father would be fraught with grave consequences in the event the father starts claiming some special reproach privileges over the minor like rights of visitation or custody”.

“Further, since the criminal trial is yet to commence against the alleged biological father, there is a possibility that a direction relating to inheritance in his property may be used by the accused in some form as his defence or even otherwise during his trial,” the court said.

Such observations are bound to confer legitimacy and encourage rape accused to make such absurd proposals to escape punishment for such heinous crime. If it is to deter rapists, a proposal to confiscate property for the benefit of victim could be considered.

There have been outrages in the past over courts considering offers by rape accused to marry the victim and even the Supreme Court has frowned upon such incidents. Earlier this year, there was an outrage over a Madras High Court order enlarging a rape accused on bail to facilitate a compromise with the victim.

Soon thereafter, the Supreme Court in a judgment had cautioned courts against permitting compromise in rape cases. The law is clear. Rape is a non-compoundable offence. The accused and the victim cannot put an end to a case by entering into a compromise. How could the High Court talk of the option before the accused to seek custody of the child born to the 13-yearold girl he had raped? Even if it is presumed that a child born out of rape gets a share in the property of the rapist, can it be taken as a defence during trial in a non-compoundable offence against her/his mother?

Ironically, after going into the issue of the girl child’s right over the property of rape accused, the court pointed out that the issue was irrelevant as the question would not arise after her adoption.

The court further stressed that if she was not taken in adoption, “no directions of the court would be required” for inheriting the property of her biological father. But, then the same was true for the rape accused too. How did it then say that the rape accused could seek custody (of his biological daughter) only if it passed a direction?

Undoubtedly, such a child is a victim along with the mother. But will the child still not be a victim if the rapist admits to the society that the child was born after he raped his mother? Rape is not about refusing to lend a name to a relationship but it is an assault on the body of a woman. The debate on pardoning a rape accused offering to marry the victim should not be reopened.