The children born of committing rape are the secondary victim of sexual abuse. The legal framework to suppress the crime of rape is failing to ensure justice for and protection of the mental health of rape victims, instead, they are held socially responsible for the crime they undergo. It is natural in these circumstances that the rights of children born of sexual violence such as maintenance or inheritance may get overlooked.
The rights of the children born of committing rape are seldom recognized in the Bangladeshi legal system. Such children are entitled to be known by the identity of their father or mother or both as prescribed in Section 13 of the Nari O Shishu Nirjatan Daman Ain, 2000. As the father of the children is the criminal of one of the most disgusting mischiefs, the mother or maternal relatives are entitled to the guardianship of the children. The Section determines that these children are entitled to the maintenance provided by the government till they can arrange their basic costs. A daughter may be eligible for maintenance until her marriage, and a son is entitled to maintenance until he attains the age of 21. But if they turn out disabled or maimed, there is no certainty that they can bear their own cost within the said period of time. Hence, the government will provide maintenance until the disabled children attain the ability to earn and bear their own costs.
Society often discriminates against the children born of committing rape. These children are rejected from admission at schools, not offered jobs and people do not want their children to marry them. So, the State has to provide maintenance until they attain the ability to earn and bear its own costs. The government shall determine the amount of the maintenance payable considering the cost of their livelihood and shall collect the money from the rapist or his existing property. Furthermore, if such maintenance is not enough, the government may realize it from the future property of the perpetrator.
Section 16 of the Act prescribes that the tribunal may direct the Collector of the concerned district to attach the property and sell it by auction and transfer the money to the tribunal so that it can pay the money to the victim. But this process is lengthy and it seems quite impossible to deliver maintenance to the legal guardian of the children on a monthly basis. Besides, the Act does not prescribe any committee that may take the responsibility of collecting funds and maintenance from the perpetrator and continue the flow of the maintenance to their legal guardian. It is not clear which authority will be taking the responsibility to provide the maintenance continuously to the mother or the maternal relative.
It appears that the obligation of the perpetrator on the rehabilitation of children born of sexual violence is obscure. The Act directs to collect the cost of maintenance from the property of the perpetrator but it does not involve him in nurturing or supporting the children. Such complex social issues cannot be resolved overnight. Recognition of these children as victims alongside the rape survivors could be a milestone toward this long path. For instance, for the very first time in history, a war-baby named Shamsun Nahar testified before a tribunal in the case of Chief Prosecutor v Syed Md Qaiser.[1] The tribunal has given directives to the Ministry of Liberation War Affairs, Ministry of Social Welfare, and other social organizations to honor the war-babies and make arrangements to provide them monthly honoria so that it reduces their problems resulting from the trauma and stigma they went through.
Where our neighboring countries like India are trying to recognize the rights of the children born of committing rape as they are dependent on the victim, we are much away from ensuring their right to maintenance, let alone the right to inheritance. The Allahabad High Court of India came to the conclusion that the inheritance is a matter of personal law and the child born out of rape shall be treated as an illegitimate child of the offender in the case of “A” v State of UP and Ors.[2] But the child has inheritance right over the biological father’s property. Manner of birth shall be irrelevant even though an illegitimate child is not entitled to inheritance under Christian law and Muslim law.[3] This complex social issue should be clarified in Bangladeshi legal system as customs and religious aspects theoretically eliminate their rights to inheritance from the assaulter’s property. New regulations should be promulgated for this issue in order to cope with international law. Relevant provisions on Bangladeshi personal laws should be reformed in accordance with the present social circumstances of the State so that the children born of rape are not eliminated from the right to inheritance on the ground of their birth legitimacy.
A handful of countries allow abortion in case of rape. The Committee on the Elimination of Discrimination against Women (CEDAW) called on Peru in the case of LC v Peru[4] to decriminalize abortion in case of rape and sexual abuse. But Bangladesh prohibits abortion and refers to it as a punishable offence under Section 312 of the Penal Code, 1860. As the state does not leave any options for the victim but to bring the child into the world, providing maintenance to the children born of rape should be the duty of the State. Article 32 of The Constitution of Bangladesh protects a person’s right to life but it does not only mean mere animalistic existence. Victim blaming and exclusion of the children born of rape from the right to inheritance not only make their life miserable but also violates their constitutional rights. Decriminalizing abortion for rape victims may elevate the condition of their life in Bangladesh.
No amount of compensation can justify the mental and physical damage of the victim and the children born of the sexual violence caused by the perpetrator. However, making the perpetrator liable for the right to maintenance of the children born of committing rape could be the first step of the rehabilitation process of the survivors. The crime of rape itself is a trauma for the survivor, furthermore, carrying out maintenance of the children born of rape would be an excessive burden for them. Therefore, the State should take the responsibility of their maintenance from every aspect. The government should ensure the process of realizing funds and fines from the property of perpetrators and provide maintenance to the legal guardians of the children continuously on a monthly basis. Other organizations may also play an important role to recognize the secondary victims of rape and protect them from further trauma and providing maintenance. The legal system should be more accessible for the victims and the legal framework should consider the social aspects so that it becomes more efficient. Furthermore, raising public awareness could minimize such crimes and pressurize the perpetrator to take the responsibility for the right to maintenance of children born of sexual violence.
[1] [2013] ICT-BD Case no 4.
[2] [2016] (1) ALJ 625.
[3] ‘Rape victim’s child can claim inheritance right’ The Hindu (Lucknow, 5 November 2015) <https://www.thehindu.com/news/national/rape-victims-child-can-claim-inheritance-right/article7842876.ece> accessed 20 September 2022.
[4] [2011] United Nations Committee on Elimination of the Discrimination against Women.
