When does an unforn child become a person as per law.

Sir,

CAUSING MISCARRIAGE IS COVERED BY S.312,313, 314,315,316 of IPC & 302 would not be applicable

Anil Sir Is right.

Go through those sections.

You'll find your answers :)

Following are the observations by THE HIGH COURT OF DELHI AT NEW DELHI in  MAC.APP.No.602/2009. Date of Decision: 5th February, 2010 . 

While deciding Motor Accident Claims Petition. Compensation was granted for death of unborn child.  

“8. To decide whether a child in the womb of the mother can be called as a person, it is pertinent to discuss different stages of birth of a child in the womb of a mother. Technically the term developing ovum is used for the first seven to ten days after conception i.e. until implantation occurs. It is called an 'embryo' from one week to the end of the second month and later it is called 'foetus'. It becomes an infant only when it is completely born. The life may enter immediately on the date of conception in the form of a small cell, which gets multiplied, but physically a mother can feel the movement of child only when the foetus is twenty weeks old i.e., five months, as the cell changes its structures and texture to become an eye, legs, bones, blood, head etc. and only when the child makes movements touching the internal walls of the womb, then the actual life does take its physical form, therefore, there may be controversy as regards the exact date of life entering the foetus but there cannot be any controversy as regards the life of the unborn child if a woman is carrying seven months pregnancy, as in many instances premature delivery takes place during the seventh month of pregnancy and the child still survives

                 An unborn child aged five months onwards in the mother's womb till

its birth can be treated as equal to a child in existence. The unborn child to

whom the live birth never comes can be held to be a 'person' who can be the

subject of an action for damages for his death. As already stated above a person

means a human being regarded as an individual and an individual's body :

concealed on his person'. Therefore, human foetus to whom personhood could be attributed was also destroyed in the accident in the instant case; had the

accident not occurred the unborn child would have survived and seen the light of

the day.

In the same judgment , it is discussed as follows:

16. The rights of an unborn child are well recognized in various different legal contexts which are as under:-

      (i) Section 6 of the Limitation Act, 1963 provides that where a person

entitled to institute a suit or make an application for execution of the decree

is, at the time from which the prescribed period is to be reckoned, a minor, he

may institute the suit or make the application within the same period after the

disability has ceased. Explanation to Section 6 reads thus:

      "Explanation:-- For the purposes of this section, 'minor' includes a child

in the womb."

      (ii) Section 20 of the Hindu Succession Act, 1956 recognises the rights of

a child in the womb. Section 20 reads thus:

              "Section 20. Right of child in womb: A child who was in the womb

at the time of the death of an intestate and who is subsequently born alive

shall have the same right to inherit to the intestate as if he or she had been

born, before the death of the intestate, and the inheritance shall be deemed to

vest in such a case with effect from the date of the death of the intestate."

(iii) Mulla on Hindu Law, Fifteenth Edition, contains a commentary by the author

while dealing with Section 20. The commentary reads thus:

                   "It is by fiction or indulgence of the law that the rights of

a child born justo matrimonio are regarded by reference to the moment of

conception and not of birth and MAC.APP.No.602/2009 Page 15 of 40 the unborn child in the womb if born alive is treated as actually born for the purpose of conferring on him benefits of inheritance. The child in embryo is treated as in

esse for various purposes when it is for his benefit to be so treated. This view

is not peculiar to the ancient Hindu law but one which is adopted by all mature

systems of jurisprudence. This section recognises that rule of beneficent

indulgence and the child in utero although subsequently born is to be deemed to

be born before the death of the intestate and inheritance is to be deemed to

vest in the child with effect from the date of the death of the intestate."

      (iv) In the Indian Succession Act, 1925, 'minor' is defined under Section

2(e), which reads as follows:

                   "Section(2)(e) "minor" means any person subject to the Indian

Majority Act, 1875, who has not attained his majority within the meaning of that

Act, and any other person who has not completed the age of eighteen years; and

"minority" means the status of any such person;"

      Section 7 of the Indian Succession Act provides that the domicile of

origin of every person of legitimate birth is in the country in which at the

time of his birth his father was domiciled and in the case of a posthumous

child, in the country in which his father was domiciled at the time of the

father's death. Section 112 of the Indian Succession Act recognises the rights

of a person coming into existence after the death of a testator.

      (v) Sections 13 and 20 of the Transfer of Property Act deal with

situations in which on a transfer of property, an interest therein is created

for the benefit of a person not in existence. As per Section 20, where on a

transfer of property an MAC.APP.No.602/2009 Page 16 of 40 interest therein is

created for an unborn person, he acquires on his birth, a vested interest.

      (vi) Sections 312 to 316 of the Indian Penal Code provide for punishment

for the offence of miscarriage; for doing any act with intent to prevent child

being born alive; for causing death of quick unborn child by act amounting to

culpable homicide etc.

      (vii) The question whether a posthumous child would succeed to the estate

of his father or a testator was a vexed one for the courts. In Elliot v. Lord

Joicey and Ors., 1935 A.C. 209, it was held thus:

                    "From the earliest times the posthumous child has caused a

certain embarrassment to the logic of the law, which is naturally disposed to

insist that at any given moment of time a child must either be born or not born,

living or not living. This literal realism was felt to bear hardly on the

interests of posthumous children and was surmounted in the Civil Law by the

invention of the fiction that in all matters affecting its interests the unborn

child in utero should be deemed to be already born. The classical statement is

to be found in the words of Paulus: "Qui in utero est, perinde ac si in rebus

humanis esset, custoditur, quoties de commodis ipsius partus quaeritur: quanquam alii, antequam nascatur, nequaquam prosit" (Dig. Bk.l. Tit. v. De Statu Hominum,

Section 7), thus rendered in Monro's translation: "An unborn child is taken care

of just as much as if it were in existence, in any case in which the child's own

advantage comes in question; though no one else can derive any benefit through

the child before its birth." 'There is indeed," says Craig, commenting on this

passage, "no reason in the case of a posthumous child to aggravate the calamity

it suffers by the premature death of the father, nor to make that event a ground for diminishing its rights" (Jus Feudale, Lib. II., Dieg. 13, Section 15; Lord Clyde's translation II .p.643). This fiction has undoubtedly been adopted in the law of Scotland....

It is satisfactory for the purposes of the present case to find that the law of

England in this matter is to all intents and purposes the same as the law of

Scotland. The same fiction, derived from the same source in the Civil Law, and

qualified by the same condition, is common to both systems. In the English case

of Villar v. Gilbey, (1907) A.C. 139 your Lordships' House had occasion to

emphasize that the limitation, which the Court of Appeal had there discarded,

was an essential part of "this peculiar rule of construction," which accordingly

applies only where it is for the benefit of the unborn child to apply it."

      (viii) In Moore v. Wingfield, (1903) 2 Ch. 411, Justice Vaughan Williams

L.J. held:

             "In Blackstone's Commentaries, 4th ed. vol.i. 129, 130, it is

stated that in contemplation of law life begins as soon as an infant is able to

stir in the mother's womb: "For if a woman is quick with child, and by a potion,

or otherwise, killeth it in her womb; or if any one beat her, whereby the child

death in her body, and she is delivered of a dead child; this, though not

murder, was by the ancient law homicide or manslaughter." Then the learned

author goes on: "An infant in ventre sa mere, or in the mother's womb, is

supposed in law to be born for many purposes. It is capable of having a legacy,

or a surrender of a copyhold estate made to it. It may have a guardian assigned

to it; and it is enabled to have an estate limited to it's use, and to take

afterwards by such limitation, as if it were then actually born." And the rule

as to a posthumous child being capable of taking in remainder (1) is stated in

the same work, vol.ii, 169.1 merely mention this because part of Mr. Buckmaster'

s argument seems to have proceeded upon the assumption that although, according to Buckley J's judgment, there was a rule that a child during the period of gestation was to be treated as "a life in being," that was a rule of law applicable in some cases only. In my opinion, upon the authorities, that rule is applicable when you have to deal with the rule against perpetuities. For that purpose it is plain that, as soon as the child is born, that satisfies the limitation, and you retrospectively treat the life of that child as "a life in being" at the death of the testator." In the same decision, Romer L.J., held thus:

             "For the purpose of deciding questions of perpetuity arising upon

gifts in a will of the kind we find in the will in the present case, there is,

in my opinion, an established rule that a child en ventre sa mere at the time of

the testator's death, who is subsequently born, must be treated as having been

alive at the death of the testator. And I do not think that rule should be

departed from merely because, for some reason, it is in the interest of the

child to contend that the gift is void as infringing the rule against perpetuity."

      (ix) In Aswini Kumar Pan v. Parimal Debi, : AIR1964Cal354 , a question

arose whether a posthumous son, within three years of his attaining majority,

could challenge an alienation made by his widowed mother. Holding in the

affirmative, it was held:

                   "13. We put it on the short ground that, in law, a child in

the mother's womb is deemed to be in existence, at least for purposes of

inheritance, which alone are relevant here, and has thus a right to challenge

any transaction, which affects its interest at the time. If so, it has a right

of action or a cause of action in respect of the said transaction and is

entitled to institute a suit upon the same and, as such a child, as aforesaid,

cannot, under the Indian Majority Act, be held to be a major, it must be held to

be a minor, that is, a person, suffering from disability, as contemplated in the aforesaid Section 6 of the Indian Limitation Act. This, we may respectfully add, has been rightly pointed out in the above three decisions of the Madras, Bombay and Allahabad High Courts, namely, : AIR1951All630 , already cited, and their Lordships have sufficiently demonstrated in those three decisions that there is nothing in the Indian Majority Act or in the Indian Limitation Act either, which conflicts with the view that a child in the mother's womb is a person in existence and is a minor. Indeed, so far as this latter part is concerned, namely, that such a child, if it be a person in existence, must be a minor, the relevant statute (the Indian Majority Act) carries its own confirmation, as, obviously on the terms of

Section 3 and/or Section 4 of the said Act, a person is a minor until he attains

the relevant age of majority, be it eighteen or twenty-one years, as the case

may be, and as, so far as the theory of a child en ventre sa mere is concerned,

if it otherwise applies to a particular case, as here, which is a case of

inheritance, neither of the above two statutes would exclude it or render it

inapplicable."

      (x) Black's Law Dictionary refers to "rights of unborn child", thus: "The

rights of an unborn child are recognised in various different legal contexts;

e.g. in criminal law, murder includes the unlawful killing of a foetus (Cal.

Penal Code Section187), and the law of property considers the unborn child in

being for all purposes which are to its benefit, such as taking by will or

descent. After its birth, it has been held that it may maintain a statutory

action for the wrongful death of the parent. In addition, the child, if born

alive, is permitted to maintain an action for the consequences of prenatal

injuries, and if he dies of such injuries after birth, an action will lie for

his wrongful death. While certain States have allowed recovery even though the

injury occurred during the early weeks  of pregnancy, when the child was neither viable nor quick, Sinkler v. Kneale, 401 Pa.267,167 A.2d.93; Smith v. Brennan, 31 N.J.353, 157 A.2d.497, other States require that the foetus be viable before a civil damage action can be brought on behalf of the unborn child."

      (xi) The legal status of unborn persons is discussed in Salmond on

Jurisprudence, 11th Edition, at pages 354 and 355, the relevant portion of which

reads as follows:

                  "Though the dead possess no legal personality, it is otherwise

with the unborn. There is nothing in law to prevent a man from owning property

before he is born. His ownership is necessarily contingent, indeed, for he may

never be born at all; but it is none the less a real and present ownership. ....

                   A child in its mother's womb is for many purposes regarded by

a legal fiction as already born, in accordance with the maxim, Nasciturus pro

jam nato habetur. In the words of Coke: "The law in many cases hath

consideration of him in respect of the apparent expectation of his birth". Thus,

in the law of property, there is a fiction that a child en ventre sa mere is a

person in being for the purposes of (1) the acquisition of property by the child

itself, or (2) being a life chosen to form part of the period in the rule

against perpetuities."

                  The rights of the child in the womb, in the matter of succession, are well protected by laws of the land.

17. This Court is of the view that the rights of an unborn  child are recognised in various different legal contexts; e.g. in criminal law causing death of foetus has been held to be an offence under Sections 312 to 316 of the Indian Penal Code, and the law of property considers the unborn child in being for all purposes which are to its benefit, such as taking by will or descent. This Court is in respectful agreement with the judgments of Andhra Pradesh High Court in the case of Oriental Insurance Co. Ltd. (supra) and Kerala High Court in the case of Manikuttan (supra), and holds that an unborn child aged five months onwards in mothers womb till its birth is treated as equal to a child in existence. The unborn child to whom the live birth never comes is held to be a 'person' who can be the subject of an action for damages for his death. The foetus is another life in woman and loss of foetus is actually a loss of child in the offing. The appellants are, therefore, entitled to compensation for the loss of foetus.

My dilemma is why for the purpose of compensation an unborn child is a person and why when he dies , there is no liability under criminal law , namely murder / culpable homicide or for that matter 304(2) ?

Explanation 3 to S.299 of IPC reads

"The causing of the death of a child in the mother's womb is not homicide

But it may amount to culpable homicide to ause the death of a living child,

if any part of that child has been brought forth, though the child may not have breathed or

been completely born"

your question is that whether a person is liable for death of unborn child of 2 months ?

section 11 of indian penal code regarding person includes unborn child  from the date of conceptus but for this seprate provision has been added 312 to 318 , offence affecting human body . if any part come out of the womb then laible for 299/300 culpable homocide explanation 3 of section 299 or murder as the case may be.

so answer to question that a person is not liable under section 302 for murder for death of unborn child.

Thanks, Mr Praveen and Anil Kumar. I got the hint when it was written ' offence affecting human body'. Unless the baby comes out , 302 299 etc will not be applicable and that is why 312 to 18 are prescribed. Its good to be among learned persons. thanx once again.