HINDU SUCCESSION ACT,1956 – CASE LAW – Section 20
MahimaSuri Mukherjee v. Tappan Kumar Mukherjee
Bench: Sh. Sudesh Kumar
Facts:
- The parties were married on 07.09.2013. Soon after the marriage Respondent started abusing Appellants parents and abused the Appellant verbally and physically.
- Within six months of their marriage, complainant has filed the complaint under the various provisions of the PWDV Act, 2005 on 10.03.2014. At that time she was in fourth month of her pregnancy.
Issue:
- Whether the child in womb is considered as ‘child’ according to the said act?
- Whether the Appellant is entitled to claim maintenance for her unborn child?
Contentions raised by Respondent:
- A foetus becomes an infant "only when it is completely born, however, an unborn child aged 5 months in the mother's womb can be treated as equal to a child in existence.
- An unborn foetus is not covered within the definition of a 'Child'. As the child has not yet been born, no domestic violence can be committed upon it. No maintenance can be claimed on behalf of a person who is not in existence on the date of filing of the application.
Contentions raised by Appellant:
- The rights of a child born justomatrimonio are regarded by reference to the moment of conception and not of birth , the unborn child in the womb if born alive is treated as actually born for the purpose of conferring on him benefits of inheritance.
Held:
An unborn child do come within the definition of a child and the complainant seeking maintenance for her unborn child in the form of her upkeep, welfare and an extra care required during the pregnancy was entitled to the same. Though the mother is also earning and having a good income, the same does not entitle the husband to shirk from his responsibility when he is also liable to support his child and for any failure and neglect by the father qua the child yet to be born, is certainly Domestic Violence.
