04/11/2015 5:23 PM IST | Updated 15/07/2016 8:25 AM IST

Allahabad HC Rules Child Born Out Of Rape Has Rights Over Property Of 'Biological Father'

DIPTENDU DUTTA via Getty Images
Indian Central Reserve Police Force (CRPF) personnel stand guard at the Allahabad High Court during a strike by Allahabad High Court Bar Association (HCBA) lawyers in Allahabad on September 15, 2009. The HCBA called a strike over the issue of a proposed bifurcation of the Allahabad High Court, the imposition of VAT, and the division and shifting of central government offices from Allahabad. AFP PHOTO/Diptendu DUTTA (Photo credit should read DIPTENDU DUTTA/AFP/Getty Images)

LUCKNOW -- In a significant judgement, Allahabad High Court has ruled that a child born out of rape will have inheritance rights over the property of the assaulter, the "biological father".

A Division Bench of Justice Shabihul Hasnain and Justice D K 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. It is irrelevant as to whether the newly-born child of a rape victim is born out of consensual sex or otherwise," the Lucknow bench of the High Court said yesterday.

"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, while giving ruling on a petition, said, "Notwithstanding the aforesaid observations, it is relevant to note that firstly this question does not really need a judicial pronouncement in the present case for the reason that if the newly born child is given in adoption, she will not have any rights of inheritance in the property of her biological father.

"Secondly, even if the child is not taken in adoption by any one, no directions of the Court would be required and she would inherit the property of her biological father by operation of the Personal Law by which she is governed.

"Thirdly, 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.

"In the present circumstances, we feel that this is not desirable," the bench said.

In the context of the case before it, the court said, "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, it said.

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