Topic: Legal rights of unborn child, dead

person and animals

Introduction:
The term ‘person’ is derived from Latin word ‘persona’ which means a mask worn
by actors playing different roles in a drama. In modern days it has been used in a
sense of a living person capable of having rights and duties. Now it has been used
in different senses in different disciplines. In the philosophical and moral sense
the term has been used to mean the rational quality of human being. In law it has
a wide meaning. Law personifies some real thing and treats it as a legal person.
There are human beings who are not persons in legal sense such as slaves (in
early times). In the same way there are legal persons who are not human beings
such as corporations, companies, trade unions; institutions like universities,
hospitals are examples of artificial personality recognized by law in the modern
age. Hence, the person is an important category of concept in legal theory,
particularly corporate laws have extensively used the concept of person for
protection as well as imposing the liability.
Legal person refers to a non-human entity that is treated as a person for limited
legal purposes. For example. Legal persons can sue and be sued, own property,
and enter into contracts. In most countries, legal persons cannot vote, marry, or
hold public office

Definition of Person:

According to Prof. Salmond:

“A person is any being whom the law regards as capable of rights or duties. Any
being that is so capable is a person, whether a human being or not and no being
capable is a person, even though he is a man.”

According to Gray:
“Person is an entity to which rights and duties may be attributed.”

Person - Black's Law Dictionary 6th Edition, pg. 791, defines 'person' as follows:

"In general usage, a human being (i.e. natural person), though by statute term
may include labor organizations, partnerships, associations, corporations, legal
representatives, trustees, trustees in bankruptcy, or receivers.
Persons can be classified into (a) natural person, and (b) legal or artificial or
juristic person. There are some natural persons who do not enjoy the status of
legal persons and vice versa but the society has some duties towards them.

 Legal Status of Dead Person:

Dead persons have no legal personality and hence, cannot sue and be sued. Dead
men are no longer persons in the eye of law. Legal personality of a person dies
with his person. They do not remain the owners of their property until their
successors enter upon their inheritance. When a person dies leaving Will, his
property is distributed according to the Will. Law recognizes and takes account
after the death of the person of his desires and interest when alive. There are
three things in respect of which the anxieties of living men extend even after their
death. Those are his body, his reputation and his property.

Rights of Dead Person:

There are three things in respect of which the anxieties of living men extend even
after their death. Those are his body his reputation and his estate.

Body:

A living man is interested in the treatment to be given to his own dead-body. A

corpse is the property of no one. Criminal law secures a decent burial for all dead
men and the violation of a grave is a criminal offence.
The Supreme Court in the case of Ashray Adhikar Abhiyan v Union of India has
held that even a homeless person when found dead on the road, has a right of a
decent burial or cremation as per his religious faith.
Under Roman law any insult to the body of the deceased at the timing of funeral,
gave the deceased’s heir a right to sue for the injury as it is treated as insult to the
heir.
Reputation:

Everyone is interested in maintaining reputation even after death.

Defamation suit can be filed for loss of reputation of a dead person. In English Law
as well as in Muslim Law the violation of a grave is a criminal offence. As regards
reputation of a dead man, it is to some extent protected by criminal law. Under
the law of France the relative of the defamed deceased can successfully sue for
damages, 

Property:

A dead man continues to determine the enjoyment of the property, which he

owned, while he was alive. The law of succession permits the desires of the dead
person to regulate the actions of the living persons. In addition to this, whatever
he has left behind to distributed as gifts or given in charity will be respected by
law and enforced according to his wishes laid down in a proper document i.e., will
deed. English Law provides the rule that permanent trust for the maintenance of
a dead man’s tomb is illegal and void and property cannot be tied up for this
purpose.

Case law: 

William Vs. William 33 Bombay 122. 

In this case, court held that a person during his lifetime cannot make a Will,
disposing of his body. e.g. giving his brain, bones etc. to the museum or giving any
part of his dead body to the medical college. But the trend changed today and it is
legal to donate one's eyes of part of his body after his death. It was further held in
this case that even temporary trusts are neither valid nor enforceable.

Legal Status of Unborn Person:

Before discussing the status of unborn person, we must distinguish a child who is
living in womb of its mother and an unborn child in the sense of future
generations i.e., who is not conceived in the womb of its mother. The law gives a
status of person to a child who is not yet been born but conceived in its mother’ s
womb.

Contingency of Rights of Unborn Person:

The rights of unborn person whether proprietary or personal are all contingent on
his birth as a living human being

Rights of Unborn Person:

Following are the rights of an unborn person.

Rights to Compensation:

An unborn child is entitled to compensation for the death of his father.

Rights to be born:

An unborn person has a right to be born. Under section 315 of the Indian Penal
Code, the infliction of pre-natal injury on a child, which is capable of being born
alive and which prevents it from being so could amount to an offence of child
destruction.
Section 416 of Criminal Procedure Code provides that if a woman sentenced to
death is found to be pregnant, the High Court shall order the execution of the
sentence to be postponed, and may if it thinks fit, commute the sentence to
imprisonment for life.

Right to Inherit:

An unborn child may inherit, but if he dies in the womb, his inheritance fails to
take effect and no one can claim through him.

Beneficiary of trust:
 Under section 13 of the Transfer of Property Act, property can be transferred for
the benefit of an unborn person by way of trust and such trust cannot be varied
without obtaining the consent of the Court.
Similarly, section 114 of the Indian Succession Act, 1925 provides for the creation
of prior interest before the unborn person may be made the owner of property –
corporeal or incorporeal, but no property will be deemed to be vested in the
unborn person unless and until he is born alive.

Right to own:
There is nothing in law to prevent a man form owing property before he is born.
His ownership is contingent on his being born alive and once born alive, his
contingent ownership will become vested.

Right to gift:

A direct gift may be made to the child in womb. But, according to Mohammedan
Law a gift to a person not in existence is void

Right to Partition:
In Hindu Law, if a partition is made, a share should be allotted to a child in the
womb which is contingent on his birth as a living human being.

Legal Status of Animals:

Law does not recognize beasts or lower animals as persons because they are
merely things and have no natural or legal rights.

Primitive View:

Ancient Law - However, in ancient times animals were regarded as having legal
rights and being bound by legal duties. Under the ancient Jewish Code ‘if an ox
injured a man or woman resulting in his or her death, then the ox was to be
stoned and its flesh was not to be eaten.
There are many examples in ancient Hebrew Codes where cock, bulls, dogs and
even the trunk of trees which had fallen on human beings and killed him were
tried for homicide.

There are similar instances in India as well. In number of cases found that, animals
were sued in courts in ancient India. There is popular story about the Mughal
Emperor Jehangir in which the bullock was presented before the Emperor.
However, these instances are merely of historical interest and have no relevance
in modern law.

Modern View:

Modern Law does not recognize animals as capable of rights and duties. Law is
made for human beings and all things including animals are for men. No animal
can be the owner of property from a person to an animal. Animals are merely the
object of transfer and are a kind of property, which are owned and possessed by
persons. Of course, for the wrongs done by animals the master is held liable.

Reasons for Incapability:

Following are the reasons for incapability of animals as person.

Not subjects of rights:

They are often the object of legal rights and duties but never the subject of them.

Acts:

Their acts are neither lawful nor unlawful.

Subject-matter:

They are not recognized by law as the appropriate subject-matter either of

permission or prohibition.

Recognition:

His interests are not recognized by law.

Moral rights:

They possess moral rights but those are not recognized by any legal system.

Cannot be the owner:

No animal can be owner of any property even through the medium of a human
trustee.

Exceptions:

There are two cases in which beasts may be thought to possess legal rights.
1. Cruelty to animals is a criminal offence.
2. A charitable trust can be created for the maintenance of stray cattle,
broken horses and other animals. Such a trust is created with a view to
promote public welfare and advancement of religion. However, if the
charitable trust is created only for the benefit of a single horse or a dog, it
cannot be regarded as public charitable trust

Criticism:

Cruelty to animals is an offence not because of any love animals but because of
the ill effects produced in society by perpetuation of cruelty.
The trust is created for the protection and benefit not an individual animal but for
a group as it is charitable and public trust. All these duties are contemplated by
law not towards the animals but towards society.

Conclusion:

To conclude, I can say, that according to the legal theory, only that being is
designated as person who is capable of holding rights and duties, irrespective of
the fact whether he is human being or not, existed or not. i.e., corporations, idols,
dead and unborn child are the best examples of his concept of personality.