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Rajan Salvi (Lawyer)     15 February 2010

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

From which month/week an unborn child is considered as a legal person? Can a case of murder be filed againt the accused who caused death of an unborn child of approx 2 months. [ ie caused miscarriage]


 6 Replies



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

Bharath.T. (Criminial And Civil)     15 February 2010

Anil Sir Is right.

Go through those sections.

You'll find your answers :)

Rajan Salvi (Lawyer)     15 February 2010

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
      (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) ?
1 Like


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"

1 Like

PRAVEEN CHOUDHARY (SERVICE)     15 February 2010

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.

1 Like

Rajan Salvi (Lawyer)     15 February 2010

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.

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