Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
The legal framework generally supports the idea that an unborn child has rights and protections, but the extent of its legal personality (e.g., to sue or hold property independently) varies by jurisdiction and specific case facts.
Analysis and Conclusion:
References:- ["Shahistha, W/o Fayaz VS State, Represented by LPO - Karnataka"]- ["Oriental Insurance Company Limited VS Saleena - Kerala"]- ["Santosh Bai VS Mohammed Anish - Rajasthan"]- ["MYS_MLRH_2004_3_MLRH_149"]- [](https://supremetoday.ai/doc/judgement/MY_MLRH_2004_3_MLRH_149)- ["CHIN YOKE TENG vs WILLIAM UI YEE MEIN"]- ["CHIN YOKE TENG & ANOR vs WILLIAM UI YEE MEIN - High Court"]- ["Majji Jhansi VS State of Telangana - Telangana"]- ["United India Insurance Company Ltd. VS Sampat Singh - Rajasthan"]- ["DIAS v. KAITHAN et al."]- ["Chandra Mohan VS Kavilumparakkal Surendran - Kerala"]
Planning your estate is a crucial step in securing your loved ones' future, but what if you want to provide for a child who hasn't even been born yet? Many prospective parents or grandparents wonder: can a will be written to an unborn child? This question touches on deep family values and legal intricacies. In India, the answer is generally yes, but with specific conditions rooted in statutory law and judicial interpretations. This post explores the legal framework, key provisions, precedents, and practical advice to help you navigate this area.
While this information is based on established legal principles, it is for educational purposes only and not a substitute for professional legal advice. Consult a qualified lawyer for your specific situation.
The Indian Succession Act, 1925, governs wills and testamentary succession for most communities in India (with exceptions for certain personal laws). It explicitly recognizes the creation of interests for unborn persons, making bequests to unborn children permissible under certain rules. Raj Bajrang Bahadur Singh VS Thakurain Bakhtraj Kuer - 1952 0 Supreme(SC) 69
Section 20 is pivotal here. It states:
Where, on a transfer of property, an interest therein is created for the benefit of a person not then living, he acquires upon his birth, unless a contrary intention appears from the terms of the transfer, a vested interest, although he may not be entitled to the enjoyment thereof immediately on his birth. Raj Bajrang Bahadur Singh VS Thakurain Bakhtraj Kuer - 1952 0 Supreme(SC) 69
This provision confirms that a testator (the person making the will) can create a gift or bequest for an unborn child. The interest remains contingent until the child's birth, at which point it vests, provided no contrary intention is expressed. The law does not prohibit such wills; instead, it provides mechanisms for vesting upon birth. Raj Bajrang Bahadur Singh VS Thakurain Bakhtraj Kuer - 1952 0 Supreme(SC) 69
Key points include:- Interests are typically contingent on the child's birth.- Vesting occurs automatically upon birth unless specified otherwise.- The will must clearly define the interest to avoid ambiguity.
Indian courts have consistently supported bequests to unborn children when they comply with statutory requirements. Judicial decisions emphasize that such gifts are valid if they vest upon birth and do not violate restrictions like the rule against perpetuity. Raj Bajrang Bahadur Singh VS Thakurain Bakhtraj Kuer - 1952 0 Supreme(SC) 69
For instance, courts have noted:
There is no ban on the transfer of interest in favour of an unborn person. Section 20 permits an interest being created for the benefit of an unborn person who acquires interest upon his birth. Raj Bajrang Bahadur Singh VS Thakurain Bakhtraj Kuer - 1952 0 Supreme(SC) 69
In cases involving contingent interests, such as gifts to grandchildren contingent on surviving their parents and reaching age 18, courts have analyzed compliance with sections like 113, upholding validity where all interests are properly covered. Raj Bajrang Bahadur Singh VS Thakurain Bakhtraj Kuer - 1952 0 Supreme(SC) 69
This construction ensures that wills can plan for future generations without legal invalidity.
The validity of interests for unborn children extends beyond wills into other areas of law, reinforcing their legal personhood in India. Courts have attributed rights to foetuses in accident compensation cases, treating them as persons entitled to remedies.
In motor accident claims, tribunals and high courts have awarded compensation for the death of unborn children, recognizing them as 'persons' under statutes like the Motor Vehicles Act, 1988. For example:
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. Kanta Mohanlal Kotecha VS Branch ManagerRAKHI KOTHARI VS R. SOUNDAAPANDIAN - 2013 Supreme(Mad) 4240Hemraj VS Ramdhan - 2011 Supreme(Raj) 983
One ruling clarified:
Human foetus to whom a personhood could be attributed was also destroyed in accident -Since if accident would not have occurred, unborn child in womb would have survived and could have seen light of day after delivery, claim put forth by claimant for unborn child in mother’s womb was held legally justified. Kanta Mohanlal Kotecha VS Branch Manager
Similar awards have been made for loss of foetus, with amounts like Rs. 1,30,000 or Rs. 1,50,000, underscoring the judiciary's view of unborn children as having protectable interests. National Insurance Co. Ltd. v. Alpaben and Others - 2022 Supreme(Online)(Guj) 1632National Insurance Co. Ltd. v. Alpaben and Others - 2022 Supreme(Online)(Guj) 1668
In criminal law, provisions like IPC Sections 313 and 316 address harm to unborn children, requiring the foetus to be 'quick' (viable), further indicating legislative concern for their status. ABC v. State of Chhattisgarh - 2021 Supreme(Online)(Chh) 2709Jabbar VS State - 1965 Supreme(All) 212
These precedents from tort, insurance, and criminal law parallel the Succession Act, showing a consistent theme: unborn children can hold contingent legal interests that crystallize upon birth.
While permissible, bequests to unborn children come with caveats to prevent abuse or perpetuity violations:
Courts have voided bequests where they comprise less than the testator's full interest without proper structure, as in contingent gifts to grandchildren. Raj Bajrang Bahadur Singh VS Thakurain Bakhtraj Kuer - 1952 0 Supreme(SC) 69
To ensure your will stands up:1. Explicit Language: State the bequest vests upon the birth of my unborn child or name the mother and expected child.2. Contingencies: Include conditions like if the child survives to age 18.3. Alternatives: Provide for scenarios where the child is not born or does not survive.4. Professional Help: Engage a lawyer familiar with the Indian Succession Act, Sections 20 and 113. Raj Bajrang Bahadur Singh VS Thakurain Bakhtraj Kuer - 1952 0 Supreme(SC) 69
Under Indian law, you can indeed make a will in favor of an unborn child, thanks to Section 20 of the Indian Succession Act, 1925, with judicial backing across contexts. However, precision in drafting is essential to navigate limitations like perpetuity rules.
Key Takeaways:- Yes, bequests to unborn children are valid if contingent on birth. Raj Bajrang Bahadur Singh VS Thakurain Bakhtraj Kuer - 1952 0 Supreme(SC) 69- Interests vest upon birth, ensuring legal protection.- Courts recognize unborn personhood in wills, accidents, and crimes.- Always consult legal experts to tailor your will.
Estate planning evolves with family milestones—don't let an unborn heir be left unprotected. Share your thoughts below or contact a professional today.
References: Indian Succession Act, 1925 (Sections 20, 113); Transfer of Property Act, 1882. Raj Bajrang Bahadur Singh VS Thakurain Bakhtraj Kuer - 1952 0 Supreme(SC) 69
#UnbornChildWill #IndianEstateLaw #SuccessionAct
It is well settled that 'an unborn child has a life of its own and rights of its own and the rights of unborn are recognised by law. ... If the unborn has life, though it is not a natural person, it can certainly be considered as a person within the meaning of Article 21 of the Constitution, for there is absolutely no reason to treat an unborn child differently from a born child. ... It is shocking that an agreement is entered into between the parties in respect of an....
of loss of unborn child and, therefore, he prays that in view of the judgment in the case of National Insurance Co. ... ... 5.2 Accordingly, the impugned judgment and award is modified to the aforesaid extent by awarding additional amount of Rs. 1,30,000 under the head of loss of unborn child in addition to the amount which is already awarded under various heads and even under the head of loss of unborn child, which is ... Hakim, for the original claimant has submitted that Claims Tri....
of loss of unborn child and, therefore, he prays that in view of the judgment in the case of National Insurance Co. ... ... 5.2 Accordingly, the impugned judgment and award is modified to the aforesaid extent by awarding additional amount of Rs. 1,30,000 under the head of loss of unborn child in addition to the amount which is already awarded under various heads and even under the head of loss of unborn child, which is ... Hakim, for the original claimant has submitted that Claims Tri....
If that is so, the foetus can by no stretch of imagination, be treated as an unborn child and no amount should have been awarded on the head of compensation towards loss of unborn child. ... ... 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 a 'person' who can be the subject of an action ....
child. ... child. ... child. ... child. ... child and legal status of unborn person as discussed in Salmond on Jurisprudence.
The distinction made in Sections 312 to 316 of the Indian Penal Code, 1860, between a woman with child and a woman quick with child and between an unborn child and a quick unborn child goes to show, as was pointed out in a century old Madras Division Bench decision Queen-Empress v. ... Life of Unborn, case not available : (1985) 2 SCC (Jour) 10, written by Justice A.M. Bhattacharjee, the then Chief Justice of Calcutta and Bombay High Courts, His Lord....
S.315 is acts done with intent to prevent child being born alive or to cause it to die 13 after birth. S.316 is causing death of quick unborn child by act amounting to culpable homicide. ... The above shows that concern for even unborn child was evinced by the legislature, not to speak of hazard to the life of the woman concerned." ... 32. The Gujarat High Court in the matter of Ashaben v. ... The CMHO / BMO shall also see to it that after delivery of child, the child#HL_EN....
A Non-Stress Test (NST) was conducted on her on 17.12.2015 and it was found that the heartbeat of the child was abnormal. She was advised to undergo surgery immediately to save the life of the unborn child. ... child of the Complainant had died in the womb. ... It is further submitted that doctors in hospital were requested to refer her to some other hospital as there was threat to the life of the complainant and her unborn child but was of no avail. 6. ... To direct ....
This gives us good scientific basis for person-hood for unborn child. Unborn child in the womb is capable of possessing or is actually in possession of life. The unborn child would qualify implied necessary condition for person-hood. ... If accident would not have occurred, the unborn child in the womb would have survived and could have seen the light of the day after delivery. The claim put forth by the claimant for unborn #HL_STAR....
In this case the father of an unborn child commenced an action on his own behalf and on behalf of the unborn child against his wife, her physician and a hospital. The court held that a next friend can act only for a person. An unborn child is not a person. ... And as far as I know 'human being' means a living human, and has never been interpreted to include the unborn child. ... In my judgment, with respect, all these cases are irrelevant because no....
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. 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. As already stated above, a person means a human being regarded as an individual and an indivi....
As already stated above a person means a human being regarded as an individual and an individual's body : concealed on his person'. 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. 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. An unborn child aged five months onwards in the mother's womb till its birth can be tre....
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.” 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 indivi....
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 findings of the Court are as under:- “6. …..Under Section 166 of the Act a person who has sustained injury or the legal heirs of the deceased person are entitled for compensation arising out of the accident involving death or bodily injuries. The foetus is another l....
The word "person" is defined in the Shorter Oxford English Dictionary in two ways : firstly, it is defined as "an individual human being" or "a man, woman, or child" : and, secondly, as "the living body of a human being" I do not think that it can be denied that an unborn child in advanced stages of pregnancy has a being or life of its own and that it has a body. An unborn child can be regarded as a living entity with a life of its own. It may be that its life and body are not independent of the mother's existence so that the unborn child cannot be said to have a separate e....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
