Lucknow: In a major judgement, Allahabad High Court has ruled that a child born out of rape has inheritance rights over the property of the assaulter, the "biological father", and suggested that an appropriate law may be enacted by the legislature to deal with this "complex social issue".
A Division Bench, comprising Justice Shabihul Hasnain and Justice DK Upadhayaya, said the child will be treated as an illegitimate child of the rape accused and will have inheritance rights to his property.
The court, however, added that if the child is given away for adoption, then he/she will not have any rights on the property of the biological father.
"We may observe here that in the matter relating to inheritance, the manner of birth of a person is irrelevant; the rights of inheritance of a person are governed by the Personal Law to which the person is subject irrespective of the manner of birth of the person," the Lucknow bench of the High Court said on Tuesday.
"It is irrelevant as to whether the newly-born child of a rape victim is born out of consexual sex or otherwise," it said while giving ruling on the petition of a rape victim with regard to the fate of the newly-born baby girl.
"It is thus noted that the rights of inheritance of the newly-born child would be governed by her Personal Law and for that purpose she would be treated as an illegitimate child of her biological father," the court said.
The bench noted that the rights of inheritance in the property of a biological parent is a complex Personal Law right which is guided by either legislation or custom.
It may not be possible to judicially lay down any norm or principle for inheritance by a minor who is born as a result of rape, it said, adding such attempt by the court would amount to legislation by judicial pronouncement and would operate as precedent in times to come.
"It would not, therefore, be desirable to venture into this field and accordingly we leave it open for the appropriate legislature to deal with this complex social issue," the bench said.
The girl, who belongs to a poor family, was raped earlier this year and got pregnant. She delivered a baby girl recently.
Source - TOI
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