ROUGH DRAFT

OF
“FAMILY LAW II”

SUBMITTED TO: Ms. Pooja Srivastava SUBMITTED BY:

(Faculty of Family Law II) Shreya Sinha
Roll No. 1648
Semester: 3rd
Session: 2016-2021

“TOPIC”
Position of “Child in Womb” in Hindu Coparcenary

“INTRODUCTION”
There are certain general provisions relating to the succession, as laid down from section 18
to 28 of the Hindu Succession Act, 1956. These provisions apply to all the properties
irrespective of the fact whether it is left by a male or a female Hindu dying intestate. These
provisions are supplementary to the provisions in section 5 to 17 of the Act. Moreover, the
provisions are not only explanatory but some of them lay down substantive rules involving
legal principles.
Before 17 June 1956 the succession of Hindus was regulated by classic Hindu law. The
Hindu Succession Act is a codification of the Hindu Law of intestate succession and came
into operation on 17th June 1956. It introduced key changes to classic Hindu law of intestate
succession. The Hindu Succession Act is, to a large extent, a codification of the Hindu law of
succession. It makes provision for certain changes to the classic Hindu law of succession, and
although it is in essence a codification of the Mitakshara law of succession, it is uniformly
applicable to all the schools of Hindu law in India.
Section 20 provides that “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.” A child in the
mother’s womb is presumed to be born before the death of the intestate, although
subsequently born. To quote Mulla, “It is by fiction or indulgence of the law that the rights of
a child born in justo matrimonio are regarded by reference to the moment of conception and
not of birth and 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. The view is not peculiar to the
ancient Hindu Law but one which as adopted by all mature systems of jurisprudence. This
section recognizes 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.”
But for the purposes of the application of the provisions of section 20, it is essential that child
must be in womb at the time of the death of the propositus and the child must be born alive.

AIMS AND OBJECTIVES

The aims and objectives of this project are:
1. To study the position of Child in Womb in Hindu Coparcenary.
2. To study the Changes in the Hindu Coparcenary regarding the position of Child in
Womb.
3. To compare the position of child in womb before and after the enactment of the Hindu
Successions Act.

TENTATIVE CHAPTERIZATION
1. Introduction
2. History and Development of the Hindu Succession Act, 1956
3. Position before the enactment of the Hindu Succession Act, 1956
4. Position after the enactment of the Hindu Succession Act, 1956
5. Comparison in the position before and after the enactment
6. Relevant Case Laws
7. Conclusion
 RESEARCH METHODOLOGY
For this study, primary research method was utilised. Various articles, e-articles, reports and
books from library were used extensively in framing all the data and figures in appropriate
form, essential for this study.
The method used in writing this research is primarily analytical.