Qui in utero est, pro jam nato habetur, quoties de ejus commodo quaeritur

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Qui in utero est, pro jam nato habetur, quoties de ejus commodo quaeritur

Literal Meaning

He who is in the womb is considered as already born as far as his benefit is considered.

Explanation & Origin

Qui in utero est, pro jam nato habetur, quoties de ejus commodo quaritur is latin term which means , he who is in the womb is treated as if already born, as often as it is questioned concerning his benefit.

Explanation – This term is quite frequently used in the family law or when it comes to division of property among the Joint Hindu family. This term mean that unborn child has right when he is in the womb of his mother as much a born child does.

Illustration

In case of the division of a land among the family one of the shares will allotted to the child in the womb for his benefit.

Case Reference

In the case of Priyesh Vasudevan vs Shameena[1]  it was observed  that  Right of child in womb:– A child who was in the womb at the time of the death of an interstate 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.” “It is by fiction or indulgence of the law that the rights of a child born 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. This view is not peculiar to the ancient Hindu law but one which is adopted by all mature systems of jurisprudence. This section recognises 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.”

In the case of Laxmanrao Madhavrao vs State Of Maharashtra And Ors[2] it was seen that Mr. A.V. Savant, the learned Advocate for the petitioner, submits that, enlarging of ceiling area, under Section 6 of the Act is aimed at, providing means of sustenance for larger families of more than five. A child in the womb, so pregnant on the appointed day with veritable possibility of an addition to the strength of dependents, so contends Mr. Savant, cannot be excluded from the membership of the unit contemplated under this section. With the inclusion of daughters, the family unit would become seven members strong and would not be liable to be declared as surplus. It would be entitled to a larger ceiling area of 18 acres more. Mr. C.J. Sawant, the learned Additional Government Pleader for the State, on the other hand, contends that only living and existing persons on the appointed day can be said to be members of the unit under this provision, and not the conceived unborn children. The family unit of the petitioner, says Mr. C.J. Sawant, cannot claim larger ceiling area. The question is: Can the unborn but conceived child still in the womb, be considered to be member of the unit under Section 6 of the Act? Section 6 reads as follows:– Where a family unit consists of members which exceed five in number, the family unit shall be entitled to hold land exceeding the ceiling area to the extent of one-fifth of the ceiling area for each member in excess of five, so however that the total holding shall not exceed twice the ceiling area, and in such case, in relation to the holding of such family unit, such area shall be deemed to be the ceiling area.” Now, family can ordinarily be said to consist of members who are physically in existence. The same is true of the family unit which is just a scion of the family under the scheme of the Act. It cannot be said to consist of any one not in existence. A child in the womb can never be considered to be in existence. It is impossible to think of the actual physical existence of any unborn child even if conceived in the womb. The legislature does at time create legal fictions as to existence of things or facts which do not physically and actually exist. Everyone including the Court then has to take notice of it and recognise it for all practical purposes. The language of Section 6 does not admit of any such legal fiction. But, contends Mr. Sawant, such legislative intent is implicit in the object with which enlargement of the ceiling area is conceived there under.  The contention of Mr. Savant, that unborn child also is as good as minor, is devoid of any merit. The person remains a minor, till he reaches the age of 18. But age begins to run from the date of birth and not that of conception.

In the case of New India Assurance Co. Ltd. vs Kiritkumar S. Sheth And Anr[3] it was observed that After having seen the condition of the plaintiff, Dr. Sheth immediately started administering treatment and medicine and took written consent from one of the relatives Ambalal Zinabhai which is produced at exhibit 115 for the purpose of undertaking emergent and urgent operation. Dr. Sheth was also given the history by the relatives that there was a still born child in the womb of the mother, In view of the physical condition then prevalent, Dr. Sheth was left with no alternative but to immediately undertake the operation for the purpose of delivery of the child. Operation was performed at 6 a.m. Required tests before taking the plaintiff to the operation table were carried out. Medicine was also given. Glucose saline with other required injections had been administered by the doctor. We make it clear, that if the doctor is found guilty of negligence we would not and we should not hesitate to award compensation against him for his negligence. However, we also make it clear that no compensation could be awarded against a medical practitioner who has not spared any stone unturned for saving the life of a lady. In our opinion, the version of the plaintiff is farthest from the truth and we have no hesitation in finding that the defendant doctor had acted promptly, reasonably, skillfully in treating and operating the plaintiff on the day when she was admitted in his clinic and thereafter. Unfortunately, though the plaintiff had suffered because of injury on the bladder, we are unable to uphold the impugned judgment and decree directing the insurance company to pay the compensation alone (which appears to be a mistake as the decree is passed only against the insurer and not the doctor). The facts and circumstances explicitly go to show that the defendant doctor had not exhibited any want of care or that he was negligent or that he failed to exercise due care and caution expected of a reasonable and prudent doctor. It would be difficult to resist the temptation of saying that the defendant doctor had done a very good job by taking positive, prompt and timely action by taking out the still born child from the womb of the plaintiff so as to save her life. Unfortunately, it appears that at the instance of somebody, the plaintiff creating a false case, raising false story, giving false evidence, filed the suit for compensation on the alleged ground of errors of the doctor who has turned out to be her saviour.

Edited by Vigneshwar Ramasubramania

Approved & Published – Sakshi Raje

Reference

[1] 2005 (4) KLT 1003

[2] AIR 1979 Bom 276

[3] 1997 ACJ 1103