Gaurang Singh, 2010 BA LLB 84|
Family Law II, Trimester VI, NLIU Bhopal|
Sr. No| Heading| Pg No.|
I| Introduction| 4|
II| Rights of unborn child under different law| 4|
III| Judgements made before passing of Hindu Succession Act, 1956| 7| IV| Analysis of Section 20, Hindu Succession Act, 1956| 8| V| Essentials| 9|
VI| Conclusion| 10|
VI| Bibliography| 11|
Statement of Problem:
The examination of rights of an unborn child in a Hindu Coparcenary. This project has also tried to conduct a comprehensive research on the requirements and exceptions related to this right.
Under Section 20, Hindu Succession Act, 1956, a child who was in the womb at the time of the death of an intestate, who is subsequently born alive, is deemed to have the same right to inherit to the intestate as if he or she had been born, before the death of the intestate.
1. To study the Rights of an unborn child in a coparcenary. 2. To look at all the requirements for these rights.
3. To understand the exceptions these rights.
4. To analyze case law on the above mentioned topics.
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, 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. 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 Rights of the unborn child are recognised in many different laws in our country, including the Hindu Succession Act.
Rights of unborn child under different law
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: 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. Indian Succession Act, 1925, 'minor' is defined under Section 2(e), which reads as follows: "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...