Right of Child in Womb

A legal fiction is a thing that is assumed or generated by courts, which is applied to help court to reach a conclusion and decision or to use any legal rule. The concept of legal fiction is used common law jurisdictions, specifically in England.

 

 A child in womb is for many reasons considered a child already born, according to the maxim, Nasciturus pro jam nato habetur. Therefore in the law of property, there is a fiction that 'a child en ventre sa mere' is a person being for the purposes of (1) the acquisition of property by the kid itself, or (2) being a life chosen to make a part of the amount within the rule against perpetuities."

 

 

Right of Child in Womb

 

Section 20 of Hindu Succession Act 1956, recognises posthumous child as an heir . This section lays down A child who was in Womb at the time of death of an intestate and who is subsequently born alive shall have same right to inherit to the intestate as if he or she has been born alive before the death of the intestate and the inheritance shall be deemed to be vest in such a case with effect from the date of death of intestate.

 

A child in Womb is presumed to be born before the death of the intestate although born subsequently . It is by fiction of law that the rights of a child born in justo matrimonio are regarded by reference to the moment of conception and not of birth .

 

An unborn child in Womb , if born alive, is treated as actually born for the purposes of conferring on him benefit of inheritance . This rule recognises old hindu law.

 

Illustration

 

A male Hindu dies on July 1, 1992, leaving his widow W and his daughter D . On December 1 ,1992 widow W gave birth to a normal son . The son dies next day . What will be the share of W and D ? At the first property will be distributed in three equal shares , i. e. W=1/3, D=1/3, and son =1/3 because the son his share would devolve on his nearest heir .His heir will be his mother W Therefore,

 

D's share will be = 1/3 and

W's share will be = 2/3.

 

Right of child in Womb under Muslim Law

 

 

Muslim law of succession is a combination of two types of sources i.e. Ancient and Modern . Primarily Ancient sources are the Holy quran ,Sunna ( practices, sayings and actions of prophet Muhammad) Ijma ( consensus of Islamic scholars over a issue) Qiyas ( analoglical deductions based on what is Islamically right or wrong) and Modern sources of muslim law are Legislations, judicial precedents, rules of equity justice and good conscience.

 

Muslim law recognises two kinds of heirs , primarily Sharers The Sharers are 12 in number and are as follows: (1) Husband, (2) Wife, (3)

Daughter, (4) Daughter of a son (or son's son or son's son and so on), (5) Father,

(6) Mother , (7) Paternal Grandfather, (8) Grandmother on the male line, (9) Full

sister (10)  Utrine sister (11) Consanguine sister, and (12) Uterine brother. Residuries , sharers are those who is entitled to a fixed or determined share in the deceased property and Residuries are those who are entitled to the deceased property when sharers fixed share is satisfied .

 

A child within the womb of its mother is competent to inherit provided it's born alive. A child in the womb is considered as a living person and, the property goes immediately in that child. But, if such a toddler within the womb isn't born alive, the share already vested in it's divested and, it's presumed as if there was no such heir (in the womb) at all.

 

Under the Mohmadean law, a Hiba

( Gift) could be done to any person without any distinction of age, sex or religion. Under the Sunni law, the donee should be must be in existence at the time of Hiba ( Gift). Thus, a Hiba to an unborn person, one not in existence, either actually or presumably, is invalid. Under the Shia law, a gift to an unborn person could be legally made provided that the gift came into effect with a person in existence.