Kids Born After Rape Can't Be Considered As Property: Bombay High Court

MUMBAI: Children born to unwed girls who have been raped cannot be considered as "property" involved in a crime, the Bombay high court has ruled in a landmark order. 

A division bench of Justices RMBorde and RV Ghuge quashed an order of the child welfare committee that sought a report from the police to allow adoption of children born to minor girls who were subjected to sexual violence. Saying that the fundamental right to life of children included the right to be rehabilitated and have a family, the judges asked the committee to be sensitive in such cases.

"Merely because the children are born out of sexual violence to minor unwed mothers, it does not mandate calling of a report from the police as to whether they would need the children for investigation purpose or for calling (for a) no-objection certificate from the competent court dealing with trial of offence," said the judges. "It must be understood that the police are concerned with the investigation of crime which is in the nature of sexual violence meted out to a minor girl; (while) the trial court, dealing with the criminal trial, is concerned with the offence of sexual violence alleged against the accused. While considering the applications, tendered by an adoption agency seeking declaration from the committee that the kids are free for adoption, those children, who are born to unwed minor mothers out of sexual violence, can't be treated as "property" involved in the crime," they said. 

The HC said that neither the police nor the trial court have any role to play in declaring that the children born to a girl who was raped are free for adoption. Rejecting the state's claims that the agency could have taken recourse to alternative legal remedies, the high court said its intervention in the case was necessary. 

The court was hearing a petition by Ahmednagar based Snehalaya's Snehankur Adoption Centre which had sought permission for placing two infants with families through adoption. The first was a nine-month-old baby of a 16-year-old girl, while the second was a one-year-and-three-month-old child born to a 13-year-old girl. The girls were raped and the children were born from the incident. The girls and their families had surrendered the children for adoption. The panel, however, sought NOC from the trial court. The assistant government pleader argued that the report had been sought from the police to check if the kids would be needed for investigation as they were born out of an act of sexual violence. The HC rejected the contention and said police report was contemplated only in cases where kids were abandoned and not those who were surrendered.