Article 21 of the Constitution of India:

Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.

Article 14 of the Constitution of India:

Equality before law: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

Section 11 of the Indian Penal Code, 1866:

Person: The word “person” includes any Company or Associa­tion or body of persons, whether incorporated or not.

General Clauses Act, 1897, defines the term “person” exactly same way as it is done in the Indian Penal Code.

In all above provisions, the word “person” is used. It means it is applicable to all persons i.e. citizens and foreigners. But it is not including the word “unborn child” in its definition. Hence there is some discrepancies in the status of unborn child.

The definition, as is clear from the language of this section, is not exhaustive but inclusive. The word ‘person’ includes a juridical person and as such an idol being a juridical person capable of owning property is a ‘person’ within the meaning of this section. An unborn child may be called a person if its body is sufficiently developed in its mother’s womb to call it a child.

From the general term “person” we can come to conclusion that the right to life has been guaranteed as a fundamental right to everyone under this article, which may be deemed to include an unborn child. Therefore, the State is under an obligation under Article 21 not only to protect the life of an unborn child from arbitrary and unjust destruction but also not to deny it equal protection under Article 14

In Elliot v. Lord Joicey, 1935 AC 209 case, the Court held that 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 birth.

In Roe v. Wade, 410 US 113 (1973) case, the Court held that State’s interest in potential human life becomes compelling at a point of viability.

In Webster v. Reproduction Health Services, 1061 Ed 2d 410 (1989) case, the Supreme Court of America upheld a Missouri Statute which declared that the life of each human being begins at conception and that unborn children have a protectable interest in life, health, and well-being.

In Davis v. Davis, (1989) 15 FLR 2097 case, the Court held that as a matter of law, human life begins at conception.

In Walker v. Great Northern Railway Company of Ireland, (1890) 28 L.R. Ir. 69 case, where the plaintiff’s pregnant mother travelled on the defendant’s railway. There was an accident of the railway. Plaintiff’s claim was he had been born crippled and deformed because the injury was caused to it by the accident due to the railway’s negligence and hence he should be compensated by the defendant. The Court held that the defendants are not liable to pay damages due to the following two reasons:

1. The defendants did not owe any duty or care to the plaintiff as they did not know about his existence; and
2. The medical evidence to prove the plaintiff’s claim was very uncertain.

In Tagore v. Tagore, (1872) I 1A Suppl. 47 case, the Supreme Court observed that an infant in the womb is a person in existence for the purpose of making a gift to an unborn person. It is to be noted that this judgment is applicable to an unborn child for the purpose of a gift only.

In Jabbar v State AIR 1966 All 590 case, the Court observed that the term ‘person’ would include an unborn child in the mother’s womb after seven months of pregnancy, that means it is capable of being spoken of as a person if its body is developed sufficiently. It is to be noted that this decision is applicable to a foetus who has completed its seven months. Thus the exact definition of “unborn child” is not given in any Act or by Indian Court.

Meaning of Transfer of Property:

Section 5 of Transfer of Property Act, 1882:

Transfer of property defined – In the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and “to transfer property” is to perform such act. In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.

According to the definition of transfer of property (Section 5 of the Transfer of Property Act, 1882) , we can write the following characteristics of a Transfer of a Property.

• It is an act of conveyance
• Conveyance is inter vivos means between living persons.
• Property may be conveyed to one or more other living persons, or to himself, or to himself and one or more other living persons.
• Property may be transferred in the future or in present.
• The term ‘person’ includes company or association or body of individuals, whether incorporated or not

Under T. P. Act, 1882, there are 6 modes of transfer of property which are Sale, Mortgage, Lease, Exchange, Gift, and Actionable claim. Under T. P. Act, 1882, Partition, Relinquishment, Surrender, Easement, Will, Compromise, Family Settlements, are not considered as a transfer of property.

According to Section 5 of the Transfer of Property Act, 1882, transfer under this section, is limited to living persons only. Hence a transfer of property cannot be made directly to an unborn person under this Section.

Section 13 of the Transfer of Property Act, 1882:

Transfer for benefit of unborn person: Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property.

The transfer of property to unborn chid can be done using provisions of Section 13 of the Act. The interest created in favour of an unborn under this Section is contingent on the occurrence of birth.

Essentials of Transfer for Benefit of Unborn Person:

There cannot be a direct transfer of property to Unborn Person:

According to the provisions of Section 5 of the Transfer of Property Act, 1882, property may be conveyed to one or more other living persons, or to himself, or to himself and one or more other living persons. Thus under Section 5 of the Transfer of Property Act, 1882, cannot be transferred directly. If such a transfer of property is made to an unborn person, it will lead to a scenario wherein the property will remain without an owner from the date of transfer of property till the date the unborn person comes into existence.

Transfer of a property to unborn child can be effected by creating prior interest:

Such transfer can be effected using the provisions of Section 13 of the Transfer of Property Act, 1882. As per the provisions, in order to transfer a property for the benefit of an unborn person on the date of the transfer, it is imperative that the property must first be transferred by the mechanism of trusts in favour of some person living other than the inborn person on the date of transfer. Thus to create the interest of unborn child, first prior interest should be created. The prior interest persists from the date of transfer and the date when the unborn child comes into existence. As soon as the unborn child takes birth, the property rights immediately get transferred in his/her name. Post which he or she will be the sole owner of the property.

The transfer of property to unborn child under Section 13 of the Transfer of Property Act, 1882 must be absolute:

When an interest is created in favour of an unborn child, such interest shall take effect only if it extends to the whole of the remaining interest of the person transferring the property in the property, thereby making it impossible to confer an estate for life on an unborn child. Thus absolute transfer of interest means The entire property must be transferred to the unborn person. The transfer to an unborn person must be absolute and there should be no further transfer from him to any other person. The principle behind such a provision is that a person disposing of property to another person shall not cause obstruction in the free disposition of that property in the hands of more than one generation. This concept can be understood by reading, the illustration attached to the Section 13.

Illustration: A transfers property of which he is the owner to B in trust for A and his intended wife successively for their lives, and, after the death of the survivor, for the eldest son of the intended marriage for life, and after his death for A’s second son. The interest so created for the benefit of the eldest son does not take effect, because it does not extend to the whole of A’s remaining interest in the property.

Section 20 of the Transfer of Property Act, 1882:

When unborn person acquires vested interest on transfer for his benefit.—

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.

According to this provision, unborn person may not be able to enjoy the possession of property as soon as he is born but he may, however, acquire a vested interest in the property since his birth.  The mentioned provision however may be waived off if the terms of the agreement mention a contrary clause.

For example, if “A” transfers an estate to trustees for the benefit of A’s unborn son with a direction to accumulate the income of such estate for a period of ten years from the date of the birth of A’s son and then to hand over the funds to him. A’s unborn son acquires a vested interest upon his birth, although he is not entitled to take and enjoy the income of the property for a period of ten years.

Interest created in favour of unborn person such as referred in Section 13 is dissimilar to the interest envisaged by Section 20. Section 20 refers to the creation of a limited interest by the transferor in favour of someone in the first instance and creation of successive interest in someone else thereafter.

In K. Vasanthappa v. Channabasappa, AIR 1962 Mys 98 (100) case, where A donor transferred his property by a gift in favour of H a living son of his daughter (donor’s daughter). In the gift deed, it was also provided that the property gifted shall also be enjoyed by other sons who might be born to the donor’s daughter before H attained the majority. T was born to the donor’s daughter before H attained the majority. H transferred the entire gifted property. It was held that T, on birth acquired ½ share in the gifted property in view of Section 20, and T was entitled to petition and recover possession of his ½ share in the property. Court also held that Section 20 is not controlled by the provisions of Section 13.

In F. M. Devaru Ganapathi Bhat v. Prabhakar Ganapathi Bhat, AIR 2004 SC 2665 (2668) case, where a donor by gift deed gave the property to her brother’s son then living and also stated in the gift deed that other male children born to her brother would also be joint holders with the donee. The Court held that the gift deed was valid in view of the provisions of Section 20 and was not hit by the provisions of Section 13 of the T.P. Act.

Transfer of Property to Unborn Child under Personal laws:

Under Hindu Law and Mahomedan Law, a gift or bequest to a person unborn is void.

Conclusion:

The transfer of property to unborn child cannot be executed in respect of unborn persons directly but it can be executed indirectly by the machinery of trusts (i.e. by creating a prior interest). The prior interest persists from the date of transfer and the date when the unborn child comes into existence. As soon as the unborn child takes birth, the property rights immediately get transferred in his/her name. Post which he or she will be the sole owner of the property. The underlying fundamental principle enshrined under section 13 of the Transfer of Property Act is that a person disposing off property to another person shall not create hurdles for the free disposition of that property in the hands of one or more generations.

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These are Bare Act Provisions of Section 13 of the Hindu Marriage Act, 1955. The Provisions of Section 13 shall be discussed in upcoming articles

Section 13: Divorce:
(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party

(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation:

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or

(iv) has been suffering from a virulent and incurable form of leprosy; or

(v) been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;

Explanation:

In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.

(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,

(i) in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality; or

(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or

(iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Explanation.

This clause applies whether the marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).

Section 13-A. Alternate Relief in Divorce Proceedings:

If any proceeding under this
Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of Section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

Section 13-B. Divorce by mutual consent:

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the mean time, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree

Indian Legal System > Civil Laws > Family Laws > The Hindu Marriage Act, 1955 > Divorce (Section 13) Provisions

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A Hindu marriage is considered a sacrament. It is an irrevocable relationship between husband and wife established through rituals and customs. In case of a failed marriage, they had to continue with the marriage and couldn’t break the marriage. The Hindu Marriage Act, 1955 provide that in case of a failed marriage, the parties do not need to suffer in the marriage and can easily break their matrimonial alliance through Judicial Separation (Section 10) or by a decree of Divorce (section 13).  It is upon the parties to choose between the two methods of dissolution.

Prior to enactment of the Hindu Marriage Act, 1955, it was practiced that in the absence of a custom to the contrary, there can be no divorce between a Hindu husband and his wife, who by their marriage, had entered into a sacred and indissoluble union and neither conversion nor degradation nor loss of caste nor the violation of an agreement against polygamy dissolves the marriage tie.

In Keshav v. Gandhi 39 Bom 588 case, the Bombay High Court condemned a custom allowing divorce as a matter of course on payment of a fine fixed by the caste.

In Thangammal v. Gangayammal (1945)1 MLJ 229 case, the Madras High Court holds a custom valid which enables either spouse to divorce the other with the latter’s consent.

Provisions of Section 13 of the Hindu Marriage Act, 1955:

Either party to the marriage, whether solemnized before or after the commencement of the Hindu Marriage Act, 1955 can under Section 13 of the Act file a petition for divorce. This petition can be filed only after completion of one year of marriage. It is a permanent end of marital rights between the spouses. Thus in divorce, the marriage ends. The relief of divorce may be obtained in respect of any marriage whether solemnized before or after the commencement of this Act. Thus, Section 13 is retrospective as well as prospective operation.

Grounds for Divorce Section 13(1) and 13(2):

The grounds for divorce as given under Section 13(1) of the Act. Either party to the marriage, whether solemnized before or after commencement of the Hindu Marriage Act, 1955 can under Section 10 of the Act file a petition for judicial separation on any one ground as prescribed in Section 13(1) and in case of wife also on any of the grounds specified in Section 13(2) of the Act.

• Adultery: If other spouse after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse after solemnization of marriage.
• Cruelty: If after solemnization of marriage, one of the spouses treats the other with cruelty. Cruelty can be of both kinds: physical and mental. It is physical when the body is injured. It is mental when feeling and sentiments are wounded. The petitioner may be meted with the cruelty of either or both types.
• Desertion: Desertion means withdrawing from the matrimonial obligation, i.e., not permitting or allowing and facilitating the cohabitation between the parties. If the other party has deserted the spouse without the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage for a continuous period of 2 years without any reasonable ground immediately preceding the presentation of the petition.
• Conversion: If one of the spouses has ceased to be a Hindu. When one spouse voluntarily relinquishes one’s religion and adopts another distinctive religion after formal ceremonies, it is conversion on his part.
• Insanity: If the other party is of unsound mind or has been suffering continuously from mental disorder of such a kind and to such an extent that the petitioner cannot live with the other party.
• Leprosy: If the other party has been suffering from a virulent and incurable form of leprosy.
• Venereal disease: If the other party has been suffering from venereal disease in a communicable form.
• Renounced the world: If the other spouse has renounced the world by entering any religious order. Entering into the sanyasa ashrama in the old age is in accordance with Hindu religion. A person may enter into a holy order even at a young age and it is not contrary to the Hindu religion. But it becomes a ground for judicial separation.
• Presumption of death: Nothing has been heard about the spouse’s aliveness for seven years.

All these grounds shall be discussed in detail in upcoming Articles.

In addition to the above-mentioned grounds, Sub- Section (2) of Section 13 of the Hindu Marriage Act, 1955 provides four additional grounds to the women for obtaining a divorce from her husband. Thus, a wife may file a petition for divorce on any one of the following four grounds:

• Husband has more than one wife living: If the husband had married before the commencement of the Act and after the commencement of the Act has again remarried either of the wives can present a suit for judicial separation provided the other wife is alive at the time of presentation of the petition;
• Rape, Sodomy, or Bestiality: If a Husband is guilty of an offense like rape, sodomy, or bestiality, the wife can present a petition for judicial separation;
• A Criminal Suit Against HusbandNon-Resumption of Cohabitation after a Decree/Order Of Maintenance: If in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, (or under the corresponding Section 488 of the Code of Criminal Procedure 1898, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;
• Repudiation of Marriage: If the marriage of women was solemnized before attaining 15 years of age, on her attainment of 15 years she could repudiate it but before attaining the age of 18 years.

Section 13 lays down three types of grounds for divorce, which may be classified as follows:

1. Nine grounds based on the “fault-disability” theory of divorce which only the ‘aggrieved spouse’ may avail. These are laid down in sub-Section (1).
2. Two grounds based on the “Break down” theory of divorce which either the ‘aggrieved’ or the ‘guilty’ spouse may avail.
3. Four special grounds, which only a wife can avail. These are laid down in subSection (2).

In all, there are 15 grounds for divorce.

Amendments in Section 13 of the Hindu Marriage Act, 1955:

This Section has, since its initial enactment in 1955, been amended twice- first in 1964 and then, drastically in 1976.

The Hindu Marriage Act, 1955 originally based divorce on the fault theory and enshrined 9 fault grounds in Section 13 (1) on which, either the husband or the wife could sue for divorce. Section 13 has undergone a substantial change by reason of subsequent amendments. The grounds mentioned in sub-Section (1) and (1-A) are available to both the husband and wife; while the grounds mentioned under sub-Section (2) are available only to the wife.

In 1964, Section 13 (1-A) has been inserted containing two clauses under which, non-resumption of cohabitation for two years or upwards after the decree of judicial separation or restitution of conjugal rights was made a ground of divorce. This is a modification of clauses (viii) and (ix) of Section 13 of the Hindu Marriage Act, 1955. By the Marriage Laws (Amendment) Act 1976, the period of two years is reduced to one year. Section 13 (1-A) introduced an element of Break-down theory in the Hindu Marriage Act 1955.

The Hindu Marriage Act, 1955 originally contained two fault grounds in Section 13 (2) on which, a Hindu wife alone could sue for divorce. The Marriage Laws (Amendment) Act 1976 has inserted two additional fault grounds of divorce for wife and a new Section 13-B under which, divorce by mutual consent has been made available as a matrimonial relief. Thus, in the modern Hindu law, the position is that all the three theories of divorce are recognized and divorce can be obtained on the basis of any one of them. Further, the customary mode of divorce is also retained.

Indian Legal System > Civil Laws > Family Laws > The Hindu Marriage Act, 1955 > Divorce

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