Bombay High Court calls for compensation for rape survivors' children

In October 2013, the Maharashtra government introduced the Manodhairya scheme which envisaged the provision of compensation as well as rehabilitation, counselling support, medical and legal aid to women who are survivors of violent crimes such as rape, acid attack, and assault.

Representational image. AFP

Representational image. AFP

On April 18, 2017, the Bombay High Court, while examining a case, explained that the Manodhairya Scheme, as well as other social welfare programmes, do not provide specific support for the children born of rape. The court stated that merely providing compensation to rape survivors is not sufficient, and efforts should be made to put a policy or scheme in place that would benefit the children of rape survivors as they should also be considered victims.

The division bench of Justice Ranjit More and Justice Anuja Prabhudessai stated: “The children of rape victims should be treated as victims and care should be taken to ensure that they are looked after well, get a good education and better facilities.” The court also demanded to know if the state government was interested in increasing compensation to rape and acid attack victims under the Manodhairya scheme.

Currently, the Maharashtra government provides up to Rs 3 lakh as compensation to victims of crimes, including rape. The Maharashtra government has also formulated the Victim Compensation Scheme under section 357A of the Code of Criminal Procedure, which came into effect in April 2014.

The bench was hearing a petition by Jaleel Shaikh, a Mumbai resident who approached the court to seek directions on the retroactive implementation of the Manodhairya Scheme to award compensation to women who survived rape, acid attack and other sexual offences before 2013.

Live Law’s report on the matter reveals unthinkable circumstances for some survivors: A 4-year old whose sexual assault was so brutal that she had to undergo third degree vaginal reconstruction surgery— a 15-year old who was raped in 2013, and thereafter, forced to marry her rapist, who later abandoned her—neither of these victims have been compensated.

This judgment is progressive and seeks to broaden the perspective in which rape as a crime affects its victims. So far, the judiciary has interpreted rape as an offence that affects the corporeal body only, and this, in situ understanding of rape is both pedantic as well as dangerous.

The judiciary has time and again debated on the definition of rape, what its elements should be, the character of the victim and therefore, the crime of the rape in context of such character. However, there has practically been no discourse on the implications of rape, and the trajectory of victimhood.

Though the present case does not look at rape laws per se, what it does, and brilliantly so, is that it expands the definition of rape victims so as to include children born out of rape. These children are often unwanted as they are born out of a violent crime, and are more often than not, abandoned. Moreover, these children are more vulnerable to more violence. By including such children in the definition of victims of rape, what the court has recognised their identity that would have otherwise been invisibilised.

In the case "A" through her Father "F" Versus State Of UP Thru Prin. Secy., Med. & Health Ser. & Ors. (2015), the Allahabad High Court made a landmark pronouncement: Stating that a child born out of rape will have inheritance rights over the property of the the biological father. The judgment, adjudicating a matter where a 13-year-old was raped, impregnated and was unable to abort the child due to medical reasons, also discussed, at length, the rehabilitation of rape survivors and their children.

Justices Shabihul Hasnain and DK Upadhayaya noted that the victim of the crime was suffering from Rape Trauma Syndrome and needed to be integrated within mainstream society to lead a peaceful life where she could exercise her constitutionally guaranteed rights: “Where combat veterans suffer Post Traumatic Stress Disorder, rape survivors experience similar symptoms on a physical, behavioural and psychological level. Some of the symptoms are present immediately after the rape while other only appear at a later stage.”

The case also noted that the child would be considered as an illegitimate child of the rape accused but will have the inheritance rights to his property, unless she/he is legally adopted by someone else. However, the Allahabad High Court stopped short of redefining the victimhood of the child born out of rape, and prescribed certain rights for such children.

In December, 2016, a bench of justices RK Gauba and Gita Mittal of the Delhi High Court held that a child born out of rape is unequivocally the victim of the crime and is liable to receive compensation, independent of any such relief awarded to the rape survivor. The court observed: “We find that there is a complete vacuum in the consideration of compensation so far as the sexual offence resulting in the birth of a child is concerned. Such a child is clearly a victim of the act of the offender and entitled to compensation independent of the amount of compensation paid to his/her mother. Such award would require to include amount towards his/her maintenance and support.”

The bench also noted that neither the Protection of Children from Sexual Offenses Act (Posco) nor the Victim Compensation Scheme prepared and enforced by the central government in terms of section 357A of the CrPC provide for such amount: “... These guidelines are general in nature and do not assist much in quantifying the amount of compensation. The Posco rules make no provision for a child born out of the sexual violence or the offence suffered by the child, who is not only a dependent of the victim, but the direct victim of the offence.”

Enforcement of these instructions of the Bombay High Court could, in many ways, make the Maharashtra government more accountable towards the children of the invisibilised, and keep them from being further invisibilised.

The Principal Secretary, Women and Child Welfare Department is expected to appear at the next high court hearing to clarify on the compensation that will be given to the children of rape survivors and the scope of the Manodhairya Scheme.

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Updated Date: Apr 22, 2017 11:11:38 IST

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