# 'A' through her Father "F" v. State of U.P. & Ors

- **Citation:** (2015) 3 ILRA 1310
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-11-03
- **Case number:** W.P. No. 8210 (M/B) of 2015
- **Bench:** Shabihul Hasnain, D.K. Upadhyaya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/a-through-her-father-f-v-state-of-u-p-ors-43314
- **Pages:** 32

## Headnote

(A) Guardian & Wards Act 1956, Section21-Hindu Adoption & Maintenance Act
1956-Section
9-A-minor
girl-adoptionminor girl subjected to rape-considering
scope of rehabilitation of new born issuewhether such minor mother capable to
give her newly born illegitimate issue ?
held-'yes'.
Held: Para-67 & 68

## Text

_Characters 0–39,923 of 106,540. This is a partial read: ask again with offset=39923 for what follows._

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 INDIAN LAW REPORTS ALLAHABAD SERIES
19. The impugned orders are set
aside.
20. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.11.2015
BEFORE
THE HON'BLE SHABIHUL HASNAIN, J.
THE HON'BLE D.K. UPADHYAYA, J.
W.P. No. 8210 (M/B) of 2015
'A' through her Father "F" ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Mohsin Iqbal
Counsel for the Respondents:
C.S.C.
(A) Guardian & Wards Act 1956, Section21-Hindu Adoption & Maintenance Act
1956-Section
9-A-minor
girl-adoptionminor girl subjected to rape-considering
scope of rehabilitation of new born issuewhether such minor mother capable to
give her newly born illegitimate issue ?
held-'yes'.
Held: Para-67 & 68
67. Thus the minor mother is competent
to act as guardian of her child. She has
the capacity to give the child in adoption.
68. In the present case the petitioner by
means of the affidavits expressed her
willingness that the child may be given
in adoption and neither she nor her
parents are ready to take care of the
child for the reasons disclosed in the
affidavits.
(B)The
Juvenile
Justice
(Care
&
Protection of Children) Act 2000-Section
41(1)-newly born child-consideration of
welfare and rehabilitation of -guide lines
framed-to be followed strictly- 10th point
program given.
Held: Para-98
(1)We direct and allow the Child Welfare
Committee of District Lucknow to take over
the cause of adoption of the child born to
"A" on 26th October, 2015, who is presently
in the care of Paediatrics Department of
King George's Medical University, Lucknow.
The Department shall handover the child as
and when the doctors find that the child is
medically fit to be handed over to the
committee. The committee shall, thereafter,
act in the manner provided in the judgment.
The Member Secretary of the State Legal
Services Authority in consultation with the
amicus curiae shall supervise the process of
adoption.
(2)As soon as "A" regains her mental
balance and equilibrium, she will be allowed
admission
in
a
proper
class
in
an
appropriate school. The first and foremost
preference should be given to any Kasturba
Gandhi Girls' School. These are residential
schools in which girls are allowed to stay
and taken care of completely. They are
given food, shelter, books, uniforms and
matterial for recreation also. If "A" or her
parents
approach
the
authorities
of
Kasturba Gandhi Residential School of her
choice, admission should be allowed to her.
If an application is made to the Basic
Shiksha Adhikari of the District it shall be
his duty to ensure admission of "A" in one
of the best run schools of Kasturba Gandhi
Residential Schools of the District.
(3)If "A" chooses not to go to residential
school then a Government Girls' Inter
College of her choice will allow her
admission
without
insisting
on
any
entrance examination or the criteria of
selection on merit basis. The State
Government
should
ensure
that
education is provided free of costs to
"A". She will be allowed full freeship of
fees and other charges whatsoever.
(4)It shall be the duty of the Principal of
the college concerned to ensure that the
3 All] 'A' through her Father "F" Vs. State of U.P. & Ors.
1311
teachers of the college, staff and the
students do not discriminate her in any
manner. All possible mental, moral and
psychological help should be given by
the teachers to help her gain strength to
face the challenges of life. The principal
should also ensure that the past life of
"A" is not propagated and she is treated
as another normal student of the school.
(5)If "A" wants to continue her studies
after 10+2 Standard (Intermediate),
admission should be given to her in any
government degree college with full free
ship of fee. This will continue till
graduation.
(6)In addition to payment of Rs.3,00,000/-
as compensation under Rani Lakshmi Bai
Mahila Samman Kosh Rules, 2015, the State
Government shall make a fixed deposit of a
sum of Rs.10,00,000/- (Rupees Ten lacs) in
favour of "A" in any nationalized bank which
will be given to her only when she reaches
the age of 21 years. The District Magistrate
of the District where the family of "A"
chooses to live henceforth will ensure that
bank account is opened in the name of "A" in
any nationalized bank, chosen by her father.
It is made clear that at the maturity of the
aforesaid fixed deposit, only "A" will be
entitled to get the money.
(7)Superintendent
of
Police
of
the
District where "A" and her family choose
to reside will ensure the safety, security
and dignity of the family. No one from
the
society
should
be
allowed
to
degrade, discriminate or excommunicate
the victim or her family on the ground of
unfortunate incident of rape.
(8)If "A" applies for any apprenticeship
in any available scheme or in any
vocational course of any Government
department or any other instrumentality
of the State, preference should be given
to her in such matters.
(9)After attaining the age of majority, some
suitable job be also provided to her
according to her ability / qualifications.
Such security of job is the surest way of
bringing her up in the main stream once
again. When occasion arises the petitioner
shall have the liberty of moving an
application to the Chief Secretary of the
State to ensure that a suitable job is
provided to her.
(10)The N.G.O.s or any other agency
which wants to help the victim and her
family in any manner, will be welcome to
do so and earn the appreciation of this
Court as well as of the society in general.
Case Law discussed:
(1983) 4 SCC 141; (2002) 2 SCC 465; 2015 (2)
SCC 227; Uttar Pradesh Rani Lakshmi Bai
Mahila Samman Kosh Rules 2015; 1994 (2)
SCC 244; AIR 1999 SC 1149; 1994 (2) SCC
244; 2014 (4) SCC 1.
(Delivered by Hon'ble Shabihul Hasnain, J.)
1. Considering the nature of issue
engaging attention of this Court in this
matter, the cause title of this case will
now be read as under:-
"A" through her father "F"
Vs.
State of U.P. through Secretary,
Medical and Health Services and
other.
Office
to
make
necessary
amendments.
2. This matter arises out of a petition
filed by a minor rape victim through her
father, who has been named "A" by this
Court. Originally, she had prayed that his
Court may direct the opposite parties to
terminate the pregnancy of the petitioner
forthwith. She had also prayed that the
opposite parties be directed to conduct DNA
test of the foetus for the purpose of evidence
and the trial.
3. It is necessary to give factual
matrix of the case and subsequent
1312
 INDIAN LAW REPORTS ALLAHABAD SERIES
developments in brief to understand the
matter in proper perspective. A named F.
I. R. was lodged by the father of the
victim against the accused (hereinafter
they will be known as "F" for father and
"M" for the accused. These names are
being given by the Court to keep the
identity of the victim, her family and the
accused under cover). It is mentioned in
the F.I.R. that "A" was raped on
17.2.2015. The age of the victim was
about 13 years. The First Information
Report was registered under Sections 376,
506 IPC and Section 3/4 of Prevention of
Children from Sexual Offenses Act, 2012
on 8.7.2015 (case crime No., district and
the location is not being given in the
interest of justice). The F.I.R. was lodged
with delay due to the reason that the poor
child did not tell about the incident to her
parents under threat extended by "M" that
in case the matter is reported to the father
they will both be killed. The matter came
to light when "A" complained of pain in
the abdomen and was taken to the medical
hospital by her sister.
4. After registration of the F.I.R.,
medical examination of the petitioner was
conducted by the Doctor on 8.7.2015
itself. She was found to be pregnant for
21 weeks and two days. Her age was
found to be 12 years. The statement of the
victim was recorded under Section 161
and 164 Cr.P.C. She corroborated the
version of the first information report. She
narrated that on 17.2.2015 at about 11.30
p.m. when she was returning from Tilak
ceremony, "M" caught hold of her and
dragged her to the back of a temple and
forcibly committed rape upon her, as a
result of which she became pregnant. She
has narrated that force was used and she
was stopped from shouting by "M". After
investigation the police submitted charge
sheet against "M" before the Magistrate
on 18.3.2015 and "M" was sent to jail.
5. According to the mark-sheet of
class V issued by a local school, her date
of birth is 15.10.2001 which makes her 13
years of age on the date of occurrence.
According to the radiological examination
her age was found to be about 12 years on
the date of the occurrence.
6.
In paragraph 13 of the petition, it
has been averred that application was
moved for termination of pregnancy
medically by competent authority i.e. Chief
Medical Officer of the District. It is further
mentioned that the application was moved
before the Juvenile Justice Board of the
District with the prayer to accord necessary
permission. It has been categorically stated
that permission was refused but we do not
have any document to substantiate this
statement. However, postal receipts have
been attached wherein applications have
been found to be sent to the Juvenile Justice
Board as well as Chief Medical Officer of
the District. We are not sure whether such
application ever reached the authorities
concerned and were on record or not?
However, since no relief could be obtained
by the petitioner, she approached this Court
through the present petition on 3.9.2015.
7. The matter came up before this
Court on 7.9.2015. The matter was argued
passionately and it was submitted that
unfortunately a minor girl has been
subjected to horrendous and despicable
act against her will. It was pleaded that on
social, moral, physical and psychological
basis it will be most appropriate that
permission may be granted to the
petitioner to abort the child scientifically.
It was forcefully argued that if the
pregnancy is continued and child is to be
3 All] 'A' through her Father "F" Vs. State of U.P. & Ors.
1313
born it would be a continued reminder of
horrible incident in the life of a minor girl
whose entire life is before her. If the
pregnancy is allowed to be terminated it
might be possible for the girl to forget the
unfortunate incident by the passage of
time otherwise instead of one, two lives
will be spoiled.
8.
Reliance was placed on a recent
decision of Supreme Court in the matter of
Chandra Kant Jayanti Lal Suther and another
Vs. State of Gujrat passed on 28.7.2015 in
Special Leave to Appeal (Crl.) No.(s)
6013/2015. Since the victim belongs to a
small District adjoining Lucknow where
medical facilities are not upto mark, this
Court decided that the victim should be
treated at Lucknow. So we directed King
George's Medical University, Lucknow to
constitute a team of three senior most
teachers/
doctors
of
the
concerning
department to examine the petitioner. They
were required to evaluate the seriousness as
to the threat to her life and also about the
impact of continued pregnancy on the mental
health of the victim. It was directed that in
case the aforesaid doctors form an opinion
that termination of pregnancy is safely
possible, they will perform necessary
surgery/operation. This was to be done with
the consent of victim's father for the same. In
case of abortion, the authorities of the
medical university were required to preserve
the tissue from the foetus. It was further
directed that Medical University shall take
care of her stay as indoor patient and medical
expenses shall be borne by the medical
university to be reimbursed later by the State
Government. The case was ordered to be
listed on 15th September, 2015.
9. When the case was taken up on
15th September, 2015, a report from the
medical university dated 10.9.2015 was
placed before the Court which was sent in
a sealed envelop. The relevant portion of
the report sent by the medical university
is being reproduced for appreciating the
matter. The names of doctors etc. and
other details are not being given for the
purpose of maintaining secrecy about the
identity of the girl.
"Committee
members
examined,
evaluated and discussed the case thoroughly.
Relevant
investigations
and
Ultra
Sonographic examinations were done and
report is being sent on the basis of clinical
and Sonographic examination and other
investigations. She is a case of 7 and 1⁄2
months(30-32 weeks) pregnancy and is due
for delivery in approximately 3rd week of
November, 2015. At present apart from
being a teenage pregnancy, which even
though itself is a higher risk factor but there
is no other factor which may endanger the
physical health of the girl. There is no threat
to her life at the moment.
The team of doctors is of the opinion
that pregnancy should be continued as the
termination/discontinuation of pregnancy
at this point of time will lead to delivery
of life preterm baby. At the moment there
is no indication of any surgery for
delivery.
Patient should be provided antenatal care for well being of the mother as
well as fetus. No decision about time and
mode of delivery would be taken at the
appropriate time.
The patient is being advised and
provided following treatment;
Inj Tet boxoid 1 AMP/1ML stat
Tab Iron 1x daily
calcium supplementation 500 mg. 1X
BD for supplementation
As discussed above, the girl is being
admitted in Queen Marry's Hospital
pending the direction and decision of the
court for further action."
1314
 INDIAN LAW REPORTS ALLAHABAD SERIES
10. On 15.9.2015 the medical report
was taken on record. After the report of
the medical university nothing remained
to be adjudicated or decided by this Court.
However, counsel for the petitioner made
a fervent plea that the case may not be
dismissed as infructuous on that date and
he may be given a chance to study the
report as well. It was submitted that he
would like to address the Court further
after going through the communication by
the medical university. The Court fixed
23.9.2015 for this purpose.
11.
On 23.9.2015 counsel for the
petitioner submitted that the victim and her
family members are devastated by the
medical report. He submitted that the
victim/would be mother, being minor, was
not capable of looking after herself, what to
say of the child to be born. At the same time,
father of the victim is not willing to keep the
would be born child with them at any cost. If
forced they might abandon not only the
would be born child but also the victim to her
fate. The counsel also appealed to the Court
to look into this matter from the point of
view of Article 21 of the Constitution of
India. He pleaded that not only the minor
rape victim but also "would be born child"
had a right to live a life of dignity and liberty.
Right of the victim to live with dignity can
never be doubted, at the same time, the
"child to be born" would also become natural
citizen of this country from the moment of
his or her birth.
12. Article 5 of the Constitution of
India reads as under:-
"5. Citizenship at the commencement
of
the
Constitution:-
At
the
commencement of this Constitution every
person who has his domicile in the
territory of India and
(a) who was born in the territory of
India; or
(b) either of whose parents was born
in the territory of India; or
(c) who has been ordinarily resident
in the territory of India for not less than
five years preceding such commencement,
shall be a citizen of India."
13. The counsel argued that even
this child needs the protection of the
Court. It was argued that the guarantees
given in Article 21 of the Constitution of
India should be procured for the victim
and her child if not by the State then by
the courts. It was pleaded that such
hapless, helpless and innocent victim of
brutality, abject poverty and insensitive
attitude of the society deserves attention
and consideration by the highest Court of
the State. The court cannot shut its eyes
towards the tragedy which has befallen
upon a citizen of this country and is likely
to fall on a would be citizen of this
country on her/his arrival in this world.
After hearing the arguments of the
petitioner counsel this Court passed
following order on 23.9.2015:-
"Medical report sent by the doctors
of Medical College is taken on record.
Considering
the
facts
and
circumstances of the case and its
ramification for the Society at large, we
feel that this matter needs further
consideration by this Court. Accordingly,
the Court appoints Sri Jaideep Narain
Mathur, Senior Advocate, to be assisted
by counsel of his choice, to assist us in
this matter so that proper order can be
passed for the future of unfortunate girl.
Further, let notice be issued to Avadh Bar
Association through its President to allow
any other Advocate, who wants to assist
sincerely, earnestly and honestly in this
3 All] 'A' through her Father "F" Vs. State of U.P. & Ors.
1315
matter. Issue notice to Member Secretary,
State Legal Services Authority, Lucknow,
also to assist in the matter.
List this case on 7.10.2015 as fresh.
It is further directed that the victimpetitioner shall not be relieved from the
Medical College and shall be taken care
of by them until further orders of this
Court.
Order Date :- 23.9.2015 "
14. On 7.10.2015 the matter was
heard for quite some time and following
orders were passed:-
Heard Sri J. N. Mathur, Senior
Advocate assisted by Sri Ravi Tilhari and
Sri Madhav as amicus curiae at great
length, Sri Mohsin Iqbal, learned counsel
for the petitioner and Mrs. Bulbul
Godiyal, learned Additional Advocate
General for the State.
Mr. Mathur has submitted that so far
as compensation is concerned, the State
Government has formulated a scheme
known
as
Uttar
Pradesh
Victim
Compensation Scheme. Section 2 (d) of
the said scheme defines a victim as under:
"(d) "victim" means a person who
himself has suffered a loss or injury as a
result
of
crime
and
requires
rehabilitation, and includes his dependent
family members."
The Court expressed its anxiety as to
whether this definition will also cover the
'would be born child' whose mother is
refusing to bring him/her up in future. The
father of the petitioner has already stated
that he does not want anything to do with
the child who is likely to be born. In this
case the child becomes the 'second victim'
in itself.
After arguments were heard the
Court has formulated few questions and
has sought assistance on these issues:-
What is the status of a would be born
child out of a relationship which is based
on denial from both the parties ? There
was no consent between the biological
father and mother of the child for his/her
birth. There was no marriage and even
live-in relations was not existing. In such
a situation, what rights will accrue to a
child who will be a citizen of this country
from the moment of its birth in the State of
India. Does he not have a right to live a
life of liberty with dignity as guaranteed
under Article 21 of the Constitution of
India.
Can he claim legitimacy in society ?
How is the society expected to treat the
child ? Is the society not bound to respect
the child simply as a citizen of this
country and not a product of shame ? Can
he claim rights through inheritance in the
property of his rapist father ? Most
important aspect is the responsibility of
the State viz.-a.-viz. the unfortunate victim
and the most unfortunate child. Is it not
the responsibility of the State to protect
the life and liberty of a girl who has been
put to this trauma and hardship because
the State failed to protect her ?
The Court showed its anxiety as to
how this child has to be brought-up in
view of the fact that the mother is denying
to keep him/her with herself ? Can the
child be given in valid adoption through
legal methods ? Can the government be
required to pay for the education and
rehabilitation/well being of the child till
he attains the age of majority independent
of his/her mother's companionship ? Sri
Mathur submitted that by a harmonious
reading of Section 21 of the Guardians
and Wards Act, Section 6 of Hindu
Adoption and Maintenance Act, 1956
along with other legal and statutory
provisions, a method can be put in place
for a valid legal adoption of the would be
1316
 INDIAN LAW REPORTS ALLAHABAD SERIES
born child. Mr. Mathur assured the Court
that he will come back tomorrow with all
the queries raised by the Court.
Mrs.
Bulbul
Godiyal,
learned
Additional Advocate General submitted
that the State Government is not taking
this case as an adversarial litigation. She
assured that the government will come out
with all possible help for the victim
mother as well as would be born child.
List/put up this case tomorrow at 2
'O' clock for further hearing.
Order Date :- 7.10.2015"
15. On 8.10.2015 an amendment
application along with an impleadment
application
were
filed.
By
the
impleadment application the following
parties were added:-
"5. Principal Secretary, Women and
Child
Welfare,
Civil
Secretariat,
Lucknow.
6.State Legal Services Authority
7.Child
Welfare
Committee,
Lucknow."
By
the
amendment
application
following prayers were added:-
"b(i). issue a writ, order or direction
in the nature of mandamus commanding
the
opposite
parties
to
grant
compensation to the petitioner in the light
of Section 357-A Cr.P.C. read with the
Uttar Pradesh Victim Compensation
Scheme, 2014, framed under section 357A Cr.P.C."
b(ii). issue a writ, order or direction
in the nature of mandamus commanding
the
opposite
parties
to
provide
rehabilitation to the petitioner and to the
petitioner's child to be born in the best
interest of both the petitioner and child to
be born.
b(iii). issue a writ, order or direction
in the nature of mandamus commanding
the opposite party no.7 i.e. Child Welfare
Committee, Lucknow to take such steps
for the care and protection of the child to
be born to the petitioner and to allow the
child to remain in a Children Home till
he/she is taken in adoption by suitable
person in accordance with law."
16. Supplementary affidavit by the
counsel for the petitioner and counter
affidavit by the Chief Standing counsel
were filed on 9.10.2015. Both these
documents were taken on record. By the
supplementary affidavit two facts were
brought on record by way of paragraph
No.s 3 and 4 of the supplementary
affidavit which are reproduced as under:-
"3. That on 8.10.2015 at about 4.30
p.m., a penal of Lawyers, consisting with
Mr. J. N. Mathur, Senior Advocate Mr.
Madhav Chaturvedi, Advocate, Mr. R. N.
Tilhari, Advocate, Mr. Kazim Ibrahim,
Advocate and petitioner's counsel Mr.
Mohsin Iqbal, Advocate, had gone to meet
with the petitioner at King George
Medical University, Lucknow, to know
about her willingness about the adoption
of child, who is likely to be born within a
month.
4.That
before
the
aforesaid
Advocates, the petitioner has given her
consent, saying that she is not mentally
and physically capable to take the
responsibility of upcoming child, as such
she has no objection, if the child is given
in adoption."
17. The matter was finally heard in
great detail on 9.10.2015 and the the
judgment was reserved.
18.
Before the judgment could be
pronounced, an application was moved on
28th October, 2015 by the amicus curiae
3 All] 'A' through her Father "F" Vs. State of U.P. & Ors.
1317
informing the fact that contrary to the
expectations of the medical doctors, who
attended the victim, a girl child was delivered
on 26th October, 2015. On the said
application this Court, under the orders of
Senior Judge, assembled on 28th October,
2015 and passed the following order:-
"This Bench has been constituted on
the application moved by the Amicus
Curie, Sri Jaideep Narain Mathur, Senior
Advocate
on
account
of
some
developments which have taken place
since the date judgement was reserved in
this matter. The application has been
moved along with an affidavit informing
the Court that though the expected date of
delivery as declared by the doctor
attending the victim was last week of
November, 2015, however, the same was
preponed and through surgical operation
a girl child was born on 26.10.2015.
There is an affidavit by the Amicus
Curie earlier making a statement to the effect
that the victim and her parents had informed
him personally that they do not want to keep
with them the child born on account of the
unfortunate incident. They have consented
that provision for adoption may be resorted
to for giving the child in adoption. This fact
has been reiterated by learned counsel for
petitioner as well.
It has been informed that the girl
child born on 26.10.2015 was not well
and has been kept in Neonatal Intensive
Care Unit of the Pediatrics Department of
K.G.M.U. She is likely to remain there till
the doctors declare her fit to be moved out
of the hospital.
The Court directs that till doctors
feel that the child as well as the mother
need medical care, the Medical College
will take the responsibility of their
welfare, feeding, medicines and other
facilities as has been done earlier.
List this case on 03.11.2015 at 3.00
p.m for pronouncement of judgement.
Order Date :- 28.10.2015"
19. At the very outset, we may record
our appreciation that the State Government
did not contest this matter as an adversarial
litigation. Mrs. Bulbul Godiyal, Additional
Advocate General, on behalf and on the
instructions of the State Government,
informed
the
Court
that
the
State
Government
will
cooperate
in
the
discussions as well as implementation of the
directions given to the State Government. It
is a remarkable departure in the history of
such litigations as we have seen that in the
judgments right from Rudal Sah Vs. State of
Bihar (1983) 4 SCC 141 upto the recent days
the
State
has
contested
paying
any
compensation. It is further appreciated that a
sum of Rs.3,00,000/- has already been
released in favour of the victim by State
Government though the judgment was still
pending. Since there is no adversarial
litigation, therefore, no argument and counter
argument are required to be placed on record.
Both the sides tried to place the laws, facts
and possible solutions before the Court.
20. We may hasten to add that the
observations, opinions and conclusions
drawn in the following discussion will be
only for the purpose of welfare of the
victim and her child. It will not be used
for affecting the trial of the accused which
is an independent judicial exercise of a
criminal court. We are only going by the
facts that a minor has been forced into
sexual intercourse. Since she is minor, her
consent, if any, is meaningless. Further,
her pregnancy cannot be denied and the
birth of a child is also a fact not denied by
any one. Since State has filed charge sheet
for rape, they cannot take a stand
otherwise. The trial court shall not be
1318
 INDIAN LAW REPORTS ALLAHABAD SERIES
influenced by this judgment at all and
decide the case on its own merit.
21. We will like to go about relevant
aspects of this case in following manner:-
(A) What are the social and legal
ways to help the victim of rape in rerehabilitating
her
psychologically,
socially, economically and culturally ?
What monetary help/compensation can be
provided on a short term and long term
basis ?
(B) How can the second victim i.e.
the child born out of this unfortunate
biological relationship be given its due on
her becoming natural citizen of
this
country by birth; How the rights under the
constitution be procured for it?
(C)Is there a valid legal system
wherein the child can be adopted by a
suitable
family
through
various
government agencies or N.G.O.s ?
(D) Does the child have any right of
inheritance in the property of the accused
?
(E) What are the rights of a rape
victim
viz-a-viz
article
21
of
the
Constitution of India and what is the
responsibility of the State in protecting
the life and liberty of its citizens in
general and women
and children in
particular ?
(F) What is the responsibility of the
society towards rape victims and their
children ?
22. The concept of rehabilitation
emanates from the concept of right to life.
Hon'ble Supreme Court in number of
cases has declared that right to life does
not merely mean animal existence but
means some thing more, namely, the right
to live with human dignity. Rehabilitation
in common parlance will mean to ensure
all those facilities of life which were
being enjoyed by the person who has been
uprooted from a particular environment.
Right to life has to be understood in its
full import.
23. In the matter of Chairman,
Railway Board Vs. Chandrima Das,
(2002) 2 SCC 465, the Supreme Court has
observed:-
"32. The word "LIFE" has also been
used
prominently
in
the
Universal
Declaration of Human Rights, 1948. [See:
Article 3 quoted above]. The Fundamental
Rights under the Constitution are almost in
consonance with the Rights contained in the
Universal Declaration of Human Rights as
also the Declaration and the Covenants of
Civil and Political Rights and the Covenants
of Economic, Social and Cultural Rights, to
which India is a party having ratified them,
as set out by this Court in Kubic Darusz vs.
Union of India & Ors. (1990) 1 SCC 568 =
AIR 1990 SC 605. That being so, since
"LIFE" is also recognised as a basic human
right in the Universal Declaration of Human
Rights, 1948, it has to have the same
meaning and interpretation as has been
placed on that word by this Court in its
various decisions relating to Article 21 of the
Constitution. The meaning of the word "life"
cannot be narrowed down. According to the
tenor of the language used in Article 21, it
will be available not only to every citizen of
this country, but also to a "person" who may
not be a citizen of the country.
33. Let us now consider the meaning
of the word "LIFE" interpreted by this
Court from time to time. In Kharak Singh
vs. State of U.P., AIR 1963 SC 1295 =
1964 (1) SCR 332, it was held that the
term "life" indicates something more than
mere animal existence. [See also : State of
Maharashtra vs. Chandrabhan Tale, AIR
3 All] 'A' through her Father "F" Vs. State of U.P. & Ors.
1319
1983 SC 803 = 1983 (3) SCR 337 =
(1983) 3 SCC 387]. The inhibitions
contained in Article 21 against its
deprivation extends even to those faculties
by which life is enjoyed. In Bandhua
Mukti Morcha vs. U.O.O., AIR 1984 SC
802 = 1984 (2) SCR 67 = (1984) 3 SCC
161, it was held that the right to life under
Article 21 means the right to live with
dignity, free from exploitation. [See also:
Maneka Gandhi vs. U.O.O., AIR 1978 SC
597 = 1978 (2) SCR 621 = (1978) 1 SCC
248 and Board of Trustees of the Port of
Bombay vs. Dilip Kumar Raghvendranath
Nadkarni, AIR 1983 SC 109 = 1983 (1)
SCR 828 = (1983) 1 SCC 124].
24. The right to life has been
explained in Fancies Coralie Vs. Union
Territory of India (1981) 1 SCC 608 by
the statement (Any act which damages or
injures or interferes with the use of any
limb or faculty of a person either
permanently or even temporarily, would
be within the inhibition of Article 21.
25. In the same case, Hon'ble P. N.
Bhagwati, J. held as under:
"we think that the right to life
includes the right to live with human
dignity and all that goes along with it,
namely, the bare necessaries of life such
as adequate nutrition, clothing and
shelter and facilities for reading, writing
and expressing oneself in diverse forms,
freely moving about and mixing and
commingling with fellow human beings."
26. In the present case, the Court
emphasizes on damages or injuries to the
"faculty of a person."
27. The amicus curie has informed this
Court about his personal experience when he
visited the hospital on the direction of this
Court. He has made a statement at Bar that
the condition of the girl was so bad that it
brought tears in the eyes of Senior Advocate
along with other persons in the hospital. She
is barely 30 kilograms of weight, totally
unable to understand what was happening
around her, inconsolable and suffering of
typically "Rape Trauma Syndrome". This
syndrome has been medically defined in a
journal and we quote:-
"No person exposed to severe trauma
is immune to suffering and the signs of
that
suffering
are
referred
to
as
symptoms. When these symptoms can be
grouped as a pattern over time, they are
referred to as a syndrome. Once the
pattern becomes entrenched or unlikely to
change, and affect a person's functioning
in a permanent way it is referred to as a
disorder and is regarded as a mental
illness.
Rape Trauma Syndrome "RTS" is the
medical term given to the response that
survivors have to rape. It is very important
to note that RTS is the natural response of a
psychologically healthy person to the
trauma of rape so these symptoms do not
constitute a mental disorder or illness.
The most powerful factor in determining
psychological suffering or damage is the
character of the traumatic event itself.
Individual personality characteristics count
for little in the face of overwhelming events.
Physical harm or injuries are also not as
great a factor since individuals with little or
no physical harm may yet be severely affected
by their exposure to a traumatic situation.
Before looking at the effects of rape it is
therefore important to first examine the
character of the trauma that is rape.
Not only is there the element of
surprise, the threat of death and the threat
of injury, there is also the violation of the
1320
 INDIAN LAW REPORTS ALLAHABAD SERIES
person that is synonymous with rape. This
violation is physical, emotional and moral
and associated with the closest human
intimacy of sexual contact. The intention of
the rapist is to profane this most private
aspect of the person and render his victim
utterly helpless. The character of the event is
thus connected to the perpetrator's apparent
need to terrorise, dominate and humiliate the
victim. The victim is therefore most likely to
see his actions as motivated by deliberate
malice, a malice impossible for her to
understand. Rape by its very nature is
intentionally
designed
to
produce
psychological trauma. It is form of organised
social violence comparable only to the
combat of war, being but the private
expression of the same force. We get
nowhere in our understanding of Rape
Trauma Syndrome if we think of rape as
simply being unwanted sex. Where combat
veterans suffer Post Traumatic Stress
Disorder, rape survivors experience similar
symptoms on a physical, behavioural and
psychological level. Some of the symptoms
are present immediately after the rape while
other only appear at a later stage."
28.
This Court along with the amicus
curie and his team can only wish that the
minor girl may come out of this trauma and
lead a normal life. The Court will try whatever
is legally possible to help a citizen; rather two
citizens, both females, namely, mother and
child live a life as envisaged by the framers of
the constitution by enacting Article 14 and 21
of the Constitution of India.
29. In Collins Dictionary of the
English Language, the meaning or the
word ''rehabilitate' is given as under:-
" to help a person (who is physically
or mentally disabled or has just been
released from prison) to readapt to
society or a new job as by vocational
guidance, retraining or therapy...."
By rehabilitation what is meant is
not to provide shelter alone. The real
purpose of rehabilitation can be achieved
only if those who are sought to be
rehabilitated are provided with shelter,
food and other necessary amenities of life.
It would be too much to contend, much
less to accept, that providing medical
facilities would not come within the
concept of the word ''rehabilitation."
[Collectors of 24
Pargana and ors
..Vs..Lalit Mohan (1986) 2 SCC 138 Para
13]
30.
While dealing with the matter of
rehabilitation monetary compensation comes
as the first and foremost requirement. Of
course, it is not 'be all and end all' of the
matter but it is still a very important
requirement. We will, therefore, first explore
what monetary benefits can be given to the
victim
under
existing
laws.
Other
requirements can be discussed subsequently.
31. Right of a Victim to be
compensated for the sufferings of the
Offence is also recognized under the Code
of Criminal Procedure. Section 357
Cri.P.C. provides for payment to any
person of compensation for any loss or
injury caused by the offence, out of the
amount of fine where a Court imposes a
sentence of fine or a sentence including
the sentence of death of which fine forms
a part and where a Court imposes a
sentence of which fine does not form a
part, the court may ,when passing the
judgment, order the accused person to pay
by way of compensation such amount as
may be specified in the order to the
person who has suffered any loss or injury
by reason of the act for which the accused
person has been so sentenced.
3 All] 'A' through her Father "F" Vs. State of U.P. & Ors.
1321
32.
The Legislature by means of the
Code of Criminal Procedure (Amendment)
Act 5 of 2009 inserted new section 357-A
which inter alia provides that every State
Government in coordination with the Central
Government shall prepare a Scheme, called
"Victim
Compensation
Scheme"
for
providing
funds
for
the
purpose
of
compensation to the victim or his dependents
who has suffered loss and injury as the result
of crime and who require rehabilitation.
33. Section 357-A (3) provides that if
the trial court at the conclusion of the trial is
satisfied that the compensation awarded
under Section 357 is not adequate for such
rehabilitation, or where the cases end in
acquittal or discharge and the victim has to
be
rehabilitated,
it
may
make
recommendation for compensation. SubSection 2 provides that whenever a
recommendation has been made by the court
for compensation, the District Legal Services
Authority or the State Legal Service
Authority, as the case may be, shall decide
the quantum of compensation to be awarded
under the Victim Compensation Scheme.
Sub-Section (4) further provides that where
the offender is not traced or identified but the
victim is identified and where no trial takes
place, the victim or his dependent may make
an application to the State or the District
Legal Service Authority for award of
compensation. Under sub-section 5, the State
and the District Legal Service Authority shall
on receipt of recommendation on an
application received under sub-section (1)
after
due
enquiry,
award
adequate
compensation by completing the enquiry
within two months. Sub-section (6) further
provides that the State or the District Legal
Service Authority may, to alleviate the
suffering of the victim, order for immediate
first-aid facility or medical benefits to be
made available to the victim free of cost or
any other interim relief as such authority may
deem fit.
34.
In Suresh Vs. State of Hariyana
2015 (2) SCC 227, Hon'ble Supreme Court
has held that the object and purpose of the
provision of Section 357-A, is to enable the
Court to direct the State to pay compensation
to the victim where the compensation under
Section 357 was not adequate or where the
case ended in acquittal or discharge and the
victim was required to be rehabilitated. It
recognizes compensation as one of the
methods of protection of the victim. Relying
upon previous judgment in Abdul Rashid Vs.
Odisha, reported in 2013 SCC OnLine Ori
493, it was held that punishment of guilty is
not the only step in providing justice to the
victim. Victim expects a mechanism or
rehabilitative measures including monetary
compensation. Such compensation has to be
directed to be paid in public law remedy with
reference to Article 21. In numerous cases, to
do justice to the Victim, payment of
monetary
compensation
as
well
as
rehabilitation has been directed.