Various Human Rights Commissions also held that the stillborn child is entitled to compensation on account of the injuries caused or death occurred due to the violation of human rights. Even the Transfer of Property Act recognised the rights of the stillborn child and several provisions of Indian Penal Code, 1860, also provide for punishment by reason of hurt or birth or abortion with regard to the stillborn 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.
We are unable to uphold the view taken by the High Court of Himachal Pradesh and this court in the decisions referred to above that loss of foetus should be taken as an injury sustained by the pregnant woman in the accident. In the first place, foetus is another life in the woman and it comes as a baby in the course of time. Though foetus grows in the body of the woman, it cannot be equated to or considered to be a part of the body of the woman. In effect, loss of foetus consequent upon the death of the pregnant woman is actually loss of a child in the offing for the husband of the woman. Secondly, there is no scope for considering compensation for the bodily injury of the victim, who died in the road accident. Therefore, it would be illogical to grant compensation treating the death of foetus along with the woman dying in the accident treating it as another bodily injury. In our view, compensation to be granted for the death of a pregnant woman in motor accident is for loss of two lives. Therefore, appellant in this case is entitled to claim compensation separately for the loss of his child in the womb of his wife, who perished in the accident.
22. This court would be failing in its duty, if the judgment of the Hon'ble Mr. Justice J.R. Midha of Delhi High Court in Prakash v. Arun Kumar Saini, MANU/DE/0337/2010 : 2010 ACJ 2184 (Delhi), is not referred. The Hon'ble Judge has considered the whole gamut of law on the right of an unborn child, by considering the statutory provisions in various enactments, where the rights of an unborn child have been recognised in law, Indian and foreign case-laws and at para 16, held that the foetus is another life in woman and that loss of foetus is actually a loss of child in the offing and hence, the appellants therein were entitled to compensation for the loss of foetus. The Hon'ble Judge has held that an unborn child in the mother's womb till his birth has to be treated as equal to a child in existence. Among other statutory provisions, learned Judge has considered the Explanation to section 6 of the Limitation Act, 1963, which states that "for the purposes of this section, 'minor' includes a child in the womb". Section 20 of the Hindu Succession Act, 1956 recognises the rights of a child in the womb, which reads as follows:
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.
Among other judgments and enactments considered threadbare by the Hon'ble Judge, clauses (x) and (xi) of para 15 of the judgment in Prakash's case (supra), are worth reproduction,--
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, section 187), 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 earlier 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 NJ 353, 157 A 2d 497, other States require that foetus be viable before a civil damage action can be brought on behalf of the unborn child.
(xi) The legal status of unborn person is discussed in Salmond on Jurisprudence, 11th Edn., at pp. 354 and 355, the relevant portion of which reads as follows:
Though the dead possesses 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 nonetheless 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 iam 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.
IN THE HIGH COURT OF MADRAS
C.M.A. No. 3279 of 2012 and M.P. No. 1 of 2012
Decided On: 30.01.2013
Rakhi Kothari Vs. R. Soundaapandian and Ors.
Hon'ble Judges/Coram:
S. Manikumar, J.
Citation: MANU/TN/2909/2013.
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