LI Network
Published on: 17 August 2023 at 19:33 IST
In a significant legal precedent, the Delhi High Court has determined that an unborn child, whose live birth was never realized, is legally recognized as a ‘person’.
This recognition allows the unborn child to become the subject of an action for damages in the unfortunate event of its death.
The court’s decision was based on the case of Prakash & Ors. V. Arun Kumar Saini & Anr (2010) which established the principle that an unborn child of at least five months’ gestation in the mother’s womb until birth is equivalent to a child who has been born.
Justice Navin Chawla, while pronouncing the judgment, emphasized, “This Court has held that an unborn child/foetus of five months onwards in the mother’s womb till its birth is treated as equal to a child in existence. It was held that 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 recent case revolved around an incident where the wife of the appellant, who was a constable in the Uttar Pradesh Police, tragically lost her life in a road accident involving an overspeeding truck.
The appellant’s wife was eight months pregnant at the time of the accident. The court recognized that the appellant had lost not only his wife but also their unborn child, who was eight months old in the mother’s womb during the accident.
The Motor Accidents Claims Tribunal had previously determined that the appellant could not claim loss of dependency as he was not financially dependent on the deceased. However, the court affirmed that compensation for the loss of the unborn child should be evaluated on a case-by-case basis, taking into account the specific circumstances.
“The appellant herein lost his entire family in the accident, including the child whom he could never see. Compensation in each case has to be determined on its own facts, and while the same cannot be arbitrary or result in a windfall gain to the claimant, at the same time it cannot be static for all times to come and for all factual situations,” the Court observed.
Referring to the legal precedent, the court concluded that the appellant was entitled to compensation that would be deemed ‘just’ for the loss of the unborn child carried by the deceased at the time of the accident. The court allowed the appeal and increased the award to Rs. 5,00,000.
This ruling marks an important milestone in recognizing the legal standing of unborn children and extends protection to their rights, even in cases where live birth has not occurred due to tragic circumstances.