Can a rape accused claim custody of a child born of the crime? the Bombay HC thinks ‘Yes’ by Audrey Dmello
Majlis
Can a rape accused claim custody of a child born of the crime? the Bombay HC thinks ‘Yes’ by Audrey Dmello
On 26th July 2023 Justices Revati Mohite-Dere and Gauri Godse of the Bombay High Court lambasted the Child Welfare Committee (CWC), Mumbai Suburban 11 for rejecting the custody application of a (rape accused) biological father. The HC directed the CWC to hand over custody of the child to the biological father. The court asserted that it would pass an order on 28th July 2023 if the CWC does not do the needful.
This is an absolutely shocking and dangerous precedent that the HC has ventured into. Every rape accused is a biological father to a child born of the crime. Can an accused take advantage of his own wrong and claim custody of the child?
What is even more appalling is that the HC has not once taken into consideration the say of the rape victim. On several occasions the victim appeared before CWC stating that she was frightened as the accused approached her frequently after he was granted bail and threatened that he would kill her and destroy her life. In a Social Investigation Report conducted by the CWC the victim stated that the accused had tortured and abused her and refused to let her contact her parents.
The facts of the case are - In October 2021, 17-year-old victim realised she was pregnant and out of fear eloped with Mr. Ramu Gadivdar (21) to Karnataka from Mumbai. On 26th November, 2021, she gave birth to a boy. On 5th March, 2022 the police traced the victim because of a missing complaint filed by her father and a case was registered at Sakinaka Police Station under S. 376 IPC and S. 4, 8 and 12 POCSO Act*, 2012. The victim and the minor child were sent to St Catherine Home, Mumbai. Mr Gadivdar was arrested and was later granted bail.
In November 2022 the survivor got married to another person and on 12th April, 2023, she surrendered the child for adoption to CWC so that the child is not bogged down by social stigma and to ensure his future and welfare. After being declared free for adoption by Central Adoption Resource Authority, the child was given to foster parents on 3rd January 2023.
On 5th January 2023 Mr. Gadivdar filed a habeas corpus (produce the body) writ petition in the Bombay HC seeking custody of the child. On 4th May 2023 the HC stayed the child's legal adoption proceedings and the child was brought back to the shelter home under great trauma to the child as well as the adoptive parents..
On 17th July 2023 Mr Gadivdar applied for custody of the child to the CWC. On 21st July, 2023 the CWC rejected the application on the grounds that Mr Gadivdar is the accused in the case and giving him custody of the child, which is the result of the crime, was not in the best interest of the victim as well as the minor child.
It is reasoned precedent by various High Courts and Supreme Court (SC) that an accused cannot take advantage of his own wrong. If a child is born as a result of rape, granting custody or parental rights to the accused can further exacerbate the victim's trauma and negatively impact the child's well-being.
In Rakhi Devi vs State of Uttarakhand and Ors, MANU/SCOR/55016/2023 the mother of the accused sort custody of the child delivered out of the rape. The SC upheld the High Court’s dismissal. The CJI led bench commented that “Your son is convicted of rape. This child was born out of sexual assault. There has to be some limit in taking liberties with the court by filing such absurd habeas corpus petitions.”
It would be judgmatic for the Bombay HC to consider the following ingredients before granting custody to the rape accused.
Does the HC have powers to pass orders of custody in a Habeas Corpus Petition. Would it be prudent for the HC to direct the accused to approach the relevant authority which in this case is the Family Court?**.
While the CWC has powers to revoke the adoption process as per JJ Act, 2015 would it not have to grant custody back to the victim? Does the CWC have powers to pass an order of custody to the accused?
If the surrender deed by the victim is revoked and the HC allows the (rape accused) biological father to take custody of the child what happens to the victim? Will she continue to be the mother of the child? Can the accused or the minor child claim rights on the victim in future? ***.
Will the HC order set a precedent that all rape victims will have to mandatorily take consent of the accused before giving up the child born of the sexual assault for adoption?
The ultimatum given by the Bombay HC to the CWC to grant custody to the rape accused is both statutory as well as procedurally ultra vires. But beyond this it would be a grave travesty of justice and exacerbate the trauma of all sexual assault victims.
Audrey Dmello is the director of Majlis, an NGO that provides legal and social support to women and children facing sexual and domestic violence.
* The Protection of Children from Sexual Offences Act, 2012 states that all sexual activity with a minor below 18 years is a crime.
** JJ Act, 2015 2 (23) “court” means a civil court, which has jurisdiction in matters of adoption and guardianship and may include the District Court, Family Court and City Civil Courts;
*** JJ Act, 2015 2 (2) “adoption” means the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child;
JJ Act, 2015 S. 38 (3) Notwithstanding anything contained in any other law for the time being in force, a child of a mentally retarded parents or a unwanted child of victim of sexual assault, such child may be declared free for adoption by the Committee, by following the procedure under this Act.Majlis Job Application Form https://forms.gle/sGq3gmiwReUq6dsBA
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