Current Public Administration Magazine (November - 2015) - Challenge before law and society

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Law Administration

Challenge before law and society

By talking of the need for comprehensive legislation to deal with the rehabilitation of victims of rape and the inheritance rights of children born out of the crime, the Allahabad High Court has flagged issues that are yet to be fully dealt with in Indian law. The present body of law and judicial pronouncements on rape do deal comprehensively with various aspects of rape as a crime, including compensation to the victims, but on the question of rehabilitation the court says legislation “is not up to the mark”. While disposing of a case relating to the minor victim of rape and her newborn girl child, the court has mixed practical wisdom and humaneness with a wider societal concern over a phenomenon that has begun to greatly engage the nation’s conscience in recent times.

On the practical side, the Bench has gone by the 13-year-old survivor’s wish that the infant be given in adoption, and asked the Uttar Pradesh government to take care of her psycho-social needs, including her future education and employment. The State’s Rani Laxmi Bai Mahila Samman Kosh, a medical and monetary relief scheme for women victims of crime, was available to compensate her. It is on the legal and social issues arising out of the victim’s plight that the court has gone beyond the limitations of the case before it and looked for solutions. It has adopted the common sense reasoning that the inheritance right of the newborn to the property of her biological father will be as per the personal law governing her. For, inheritance rights operate irrespective of the manner of birth, that is, whether born out of wedlock, consensual sex or otherwise. In other words, the child would be treated as an illegitimate child of the biological father.

However, the court did not find it necessary to give a specific direction in the present case regarding the child’s property rights, as she is likely to be given away in adoption. Instead, it has chosen to canvass the need for the legislature to deal with it, as it may not be wise for judicial norms to be laid down with regard to the inheritance right of a minor born out of rape. The court has highlighted the absence of adequate research into the various issues arising out of rape and the need for a data bank based on which informed laws could be made.

For instance, a comprehensive study on rape victims may help society formulate its approach to rehabilitation of rape survivors. It is now up to the legislature to introduce provisions that will both address their rehabilitation needs and secure the future of children born out of the crime. The Allahabad High Court verdict is a timely and useful reminder that in a country with a grim record of sexual offences, ensuring a life of dignity to rape survivors is not easy. Law and society will have to meet this challenge.

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