Delhi District Court
Mahima Suri Mukherjee vs (I) State on 20 October, 2015
IN THE COURT OF SH. SUDESH KUMAR
ADDITIONAL SESSION JUDGE03
SOUTH EAST DISTRICT, SAKET COURTS
NEW DELHI
IN THE MATTER OF
CASE ID No. 02406R0219352014
CA NO. 15/15
Mahima Suri Mukherjee
W/o Sh. Tapan Kumar Mukherjee
R/o S. 198, IInd Floor,
Greater KailashII,
New Delhi 110048
Presently at
E352, Greater KailashI,
New Delhi110048
.......................Appellant
Versus
(i) State
(ii) Tapan Kumar Mukherjee
S/o LT. Col B.K. Mukherjee
R/o S 198, Greater Kailash II
New Delhi110048
CA NO. 15/15 Page No. 1 of 20
Also At
R/o B2/2330, Vasant Kunj,
New Delhi 110070
...........................Respondents
DATE OF INSTITUTION: 03.09.2014 DATE OF RESERVING ORDER: 19.08.2015 DATE OF PRONOUNCEMENT: 20.10.2015 This is an appeal U/s 29 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred as 'PWDVA, 2005') assailing the order dated 08.04.2014 whereby the Ld. MM has dismissed the prayer of the appellant for grant of interim maintenance in favour of her unborn child. As per the appellant, the Ld. MM has rejected the request of the appellant/complainant on the ground that an unborn foetus is not covered within the definition of a child.
Briefly, as per the trial court record, the dispute between the parties can be summarized as under:
The marriage between the parties was solemnized on 07.09.2013 at Malviya Nagar, New Delhi. The complainant however alleged that her husband within one month of his marriage started harassing her, he asked her to pay a sum of Rs. 80,000/ per month as rent to her mother in law for residing in the second floor of the house No. CA NO. 15/15 Page No. 2 of 20 S198, GK - II, New Delhi. The respondent abused her parents and her sister. On the eve of first Diwali, the respondent abused the complainant verbally and physically. In January, 2014, while she was 78 weeks pregnant, the respondent again got violent, pulled her hair, threw her on the ground. She was further restrained from entering the house after she returned from a trip to Bangkok with her parents. The respondent has categorically denied and disputed the allegations raised by the complainant. He alleged that the complainant had gone to Bangkok with her parents without his consent, that despite financial problems being faced by him, the complainant always pestered him to spend beyond his means and wanted him to buy expensive cars and to travel to international destinations for their honeymoon.
Within six months of their marriage, complainant has filed the present complaint under the various provisions of the PWDV Act, 2005 on 10.03.2014. At that time she was in fourth month of her pregnancy and ultra sound report was also annexed along with the complaint as Annexure C/3. As per the complainant, she has only sought a relief of Rs.30,000/ per month towards interim maintenance in favour of her unborn child which was declined by the Ld. MM vide the impugned order.
The Ld. MM after going through the ITR records of both the CA NO. 15/15 Page No. 3 of 20 parties has observed that the income of the complainant was much more than the respondent/husband and thereafter, has decided the claim qua the unborn child by observing as under:
"Be that as it may, the relief of Rs. 30,000/ per month is being sought in favour of a child who is not in existence as on this date.
According to the CONVENTION ON CHILD RIGHTS, a child is defined as"
"For the purposes of the present Convention, a child means every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier."
An unborn foetus is not covered within the definition of a 'Child'. As the child has not yet been born, no domestic violence can be committed upon it. No maintenance can be claimed on behalf of a person who is not in existence on the date of filing of the application. The medical expenses complainant and her family including expenses to be incurred on the delivery of the child are already covered by the employer of the complainant. Accordingly, the application U/s 23 PWDV Act filed by the complainant is dismissed."
The appellant however has challenged the order on the CA NO. 15/15 Page No. 4 of 20 following grounds:
(i) That the Ld. Trial Court has only gone into definition of "child" as given in the convention on the rights of the child and quoted article 1 without specifying the date of convention which came into force on 02.09.1990. A copy of the convention on rights of the child adopted by the UN General Assembly is also annexed as Annexure A/2. That the Ld. MM has quoted article 1 and reached its final conclusion without going through the preamble of same convention on the rights of the child which is being quoted as under:
"Bearing in mind that, as indicated in the declaration of the rights of the child, the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth".
That the Ld. Trial Court erred by picking and choosing the definition as prescribed under Article 1 of UN Charter and holding that a foetus is not covered under a definition of a child and hence no domestic violence could be committed upon it. A simple definition adopted by the General Assembly has been referred without taking into consideration the entire definition specifically stated in the preamble.
(ii) That a child in womb of the mother is referred by the word CA NO. 15/15 Page No. 5 of 20 'ovum' for the first 710 days after the conception. It is called an 'embryo' from the first week to the end of the second month after which, it is called 'foetus'. A foetus becomes an infant "only when it is completely born, however, an unborn child aged 5 months in the mother's womb can be treated as equal to a child in existence."
That the Ld. Trial Court has erred in not considering that at the time of filing of a complaint under Domestic Violence Act, the appellant was 4 months pregnant and at the time of arguments i.e. on 01.08.2014, the complainant was in her 9th month of pregnancy and she gave birth to a child on 08.08.2014 i.e. the date when the impugned Order was passed.
(iii) That the Ld. MM has erred in referring to the definition of foetus in the UN Convention as the Indian Law on the subject was very clear.
(a) Section 6 of the Limitation Act, 1963 describes a minor as the child in the womb.
(b) Section 20 of the Hindu Succession Act recognizes a child in a womb.
(c) Section 112 of the Hindu Succession Act recognizes the rights of a person coming into existence after the death of the testator. CA NO. 15/15 Page No. 6 of 20
(d) Section 13 & 20 of the Transfer of Property Act deal with an interest which is created for the benefit of a person not in existence.
(e) Section 312 to 316 of the Indian Penal Code provides for punishment for the offence of miscarriage, an act done with the intent to prevent a child being born alive.
Accordingly, the Indian Legislation has minimum ages defined under various Laws related to the Protection of child's rights and in specific Clause IV of the UN Convention, with respect to the rights of a child in mother's womb, the Legislation in India is in harmony with the interpretion by the convention.
It is further contended that after her visit to Thailand on 03.03.2014, the appellant has been residing with her parents who have been providing her food, shelter, accommodation and extra care which was required to be shared by the respondent. The complainant has incurred all the expenses on her own account without any contribution from the respondent. That it is not the question whether she could afford it or not. The question is of responsibility of the respondent/father towards the complainant and her unborn child in the condition that the appellant was and refusal of the respondent to let her enter into her own matrimonial home.
CA NO. 15/15 Page No. 7 of 20
(iv) That the Ld. Trial Court has failed to consider the concept of Domestic Violence and its effect on the unborn child. The appellant has also referred to an Article by 'Tina Royles' dated 21.01.2013 whereby it has been observed that 'high stress level experienced by the pregnant woman can harm the unborn child resulting in serious mental scars.' The appellant has undergone extreme domestic violence on account of the conduct of the respondent who deliberately prevented her from entering into her matrimonial home, not providing for her financially and for the welfare of the unborn child and thereby causing tremendous stress in the life of the appellant.
(v) That the Ld. Trial Court has completely erred by holding that the medical expenses of the appellant and her family including expenses on the delivery of the child are covered by the employer's funds of the appellant. That the complainant and her spouse and children are covered for any hospitalization by her employer, the same is limited only to the hospitalization. Any other expenses incurred pertaining to the illness due to which the hospitalization is required are not covered by the employer and have to borne by the complainant. That during the course of her pregnancy, the complainant has incurred considerable amount of expenses on account of frequent medical checkups in the form of CA NO. 15/15 Page No. 8 of 20 Doctor's fee, blood investigations, ultra sound scans, various medicines and supplements, apart from the expenses on a nutritious diet for the mother to be and the unborn child.
That there are various expenses to be incurred even before the arrival of a child and by not granting maintenance to the appellant, the Trial Court instead of making the respondent/father contribute and share the responsibility put him in a position where the appellant had to take care of herself and virtually bring the child into existence without any support of the respondent and this is nothing short of Domestic Violence.
(vi) That though the child was born on the same day as the date of the Order and the appellant has a right to move an application on the ground of changed circumstances, however, the pertinent question would remain unanswered if the rights of an unborn child were not challenged by way of this Appeal.
(vii) That the Ld. Trial Court has seriously erred by holding that no Domestic Violence can be committed on an unborn child and hence, no maintenance can be awarded. Domestic Violence also includes economic abuse and hence to hold that an unborn child does not need expenses in the form of maintenance given to her mother is an erroneous CA NO. 15/15 Page No. 9 of 20 finding.
The respondent however has relied upon a Judgement passed by the Hon'ble High Court of Chandigarh in 'Pushpinder Kaur Vs Balbir Singh,' I (1991) DMC 560 wherein while dealing with proceedings U/s 125 Cr. PC, the Hon'ble High Court has observed that there was no doubt an application under this Section on behalf of an unborn child was not maintainable because no refusal or neglect on the part of the father to maintain a child can be proved or inferred.
I have heard arguments at length and also perused the entire record.
Ld. MM has relied upon the definition of the child as provided in Article 1 of the Convention on the rights of the child which came into existence on 02.11.1990. Ld. MM however has failed to take into consideration the Preamble to the said convention which specifically quoted as under:
"Bearing in mind that, as indicated in the Declaration of the Rights of the Child, "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth."
CA NO. 15/15 Page No. 10 of 20
The Preamble itself finds mention of the special safeguards and care including appropriate legal protection before as well as after birth which a child needs by reason of his physical and mental immaturity. The Ld. MM has only taken into consideration the definition of a child mentioned in Article 1 of the said Convention which was actually not relevant in the overall facts and circumstances of the present case.
I find force in the arguments advanced by the Counsel for appellant that the domestic violence committed on a pregnant women would effect the unborn child. Ld. Counsel has also referred to one Article written by 'Tina Royles' wherein the psychotherapist has observed that high stress levels experienced by pregnant women can harm their unborn children, resulting in serious mental scars. Recently, there have been a number of studies which show that a mother who experiences high level of distress and unnecessary crisis, causes an imprint to be left on the brains of her child. The result is that these babies as children and adults, are unable to cope with any sort of stress. It has been highlighted that the effect and impact of the domestic violence and abuse on unborn children is not only the immediate physical effects such as the mother suffering a miscarriage, but also resulting in the unborn baby being born with a physical impairment. It has also been identified through medical scans the CA NO. 15/15 Page No. 11 of 20 impairment to the frontal lobes; which reflect individuality associated with both physical and mental capabilities where domestic violence has been present.
The Black's Law Dictionary refers to "rights of unborn child", thus: "The rights of an unborn child are recognized in various different legal contexts; e.g. in criminal law, murder includes the unlawful killing of a foetus (Cal. Penal Code Section 187), and the law of property considers the unborn child in being for all purposes which are to its benefit, such as taking by will or descent. After its birth, it has been held that it may maintain a statutory action for the wrongful death of the parent. In addition, the child, if born alive, is permitted to maintain an action for the consequence of prenatal injuries, and if he dies of such injuries after birth, an action will lie for his wrongful death. While certain States have allowed recovery even though the injury occurred during the early weeks of pregnancy, when the child was neither viable nor quick, Sinkler v. Kneale, 401 Pa. 267, 167 A. 2nd. 93; Smith v. Brennan, 31 N.J. 353, 157 A. 2d. 497, other States require that the foetus be viable before a civil damage action can be brought on behalf of the unborn child."
Further, legal status of unborn persons is discussed in Salmond on Jurisprudence, 11th Edition, at pages 354 and 355, the CA NO. 15/15 Page No. 12 of 20 relevant portion of which reads as follows:
Though the dead possess no legal personality, it is otherwise with the unborn. There is nothing in law to prevent a man from owning property before he is born. His ownership is necessarily contingent, indeed, for he may never be born at all; but it is none the less a real and present ownership........
A child in its mother's womb is for many purposes regarded by a legal fiction as already born, in accordance with the maxim, Nasciturus pro jam nato habetur. In the words of Coke: "The law in many cases hath consideration of him in respect of the apparent expectation of his birth". Thus, in the law of property, there is a fiction that 'a child en ventre sa mere' is a person being for the purposes of (1) the acquisition of property by the child itself, or (2) being a life chosen to form part of the period in the rule against perpetuities."
In Prakash & Ors Vs Arun Kumar Saini & Anr, MAC.
APP. No. 602/2009 passed by the Hon'ble High Court of Delhi, though on a different issue, the Hon'ble High Court has observed as under:
"To decide whether a child in the womb of the mother can be called as a person, it is pertinent to discuss different stages of birth of a CA NO. 15/15 Page No. 13 of 20 child in the womb of a mother. Technically the term developing 'ovum' is used for the first seven to ten days after conception i.e. until implantation occurs. It is called an 'embryo' from one week to the end of the second month and later it is called 'foetus'. It becomes an infant only when it is completely born. The life may enter immediately on the date of conception in the form of a small cell, which gets multiplied, but physically a mother can feel the movement of child only when the foetus is twenty weeks old i.e., five months, as the cell changes its structures and texture to become an eye, legs, bones, blood, head etc. and only when the child makes movements touching the internal walls of the womb, then the actual life does take its physical form, therefore, there may be controversy as regards the exact date of life entering the foetus but there cannot be any controversy as regards the life of the unborn child if a woman is carrying seven months pregnancy, as in many instances premature delivery takes place during the seventh month of pregnancy and the child still survives."
"An unborn child aged five months onwards in the mother's womb till its birth can be treated as equal to a child in existence. The unborn child to whom the live birth never comes can be held to be a 'person' who can be the subject of an action for damages for his death. As CA NO. 15/15 Page No. 14 of 20 already stated above a person means a human being regarded as an individual and an individual's body: concealed on his person'. Therefore, human foetus to whom personhood could be attributed was also destroyed in the accident in the instant case; had the accident not occurred the unborn child would have survived and seen the light of the day."
The rights of an unborn child are well recognized in various different legal contexts which are as under:
(i) Section 6 of the Limitation Act, 1963 provides that where a person entitled to institute a suit or make an application for execution of the decree is, at the time from which the prescribed period is to be reckoned, a minor, he may institute the suit or make the application within the same period after the disability has ceased. Explanation to Section 6 reads thus:
"Explanation: For the purposes of this section, 'minor' includes a child in the womb."
(ii) Section 20 of the Hindu Succession Act, 1956 recognizes the rights of a child in the womb. Section 20 reads thus: CA NO. 15/15 Page No. 15 of 20
"Section 20. Right of child in womb: 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."
(iii) Mulla on Hindu Law, Fifteenth Edition, contains a commentary by the author while dealing with Section 20. The commentary reads thus:
"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 (MAC. APP. No. 602/2009 Page 15 of 40), 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 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 CA NO. 15/15 Page No. 16 of 20 effect from the date of the death of the intestate."
(iv) In the Indian Succession Act, 1925, 'minor' is defined under Section 2 (e), which reads as follows:
"Section (2) (e) "minor" means any person subject to the Indian Majority Act, 1875, who has not attained his majority within the meaning of that Act, and any other person who has not completed the age of eighteen years; and "minority" means the status of any such person."
Section 7 of the Indian Succession Act provides that the domicile of origin of every person of legitimate birth is in the country in which at the time of his birth his father was domiciled and in the case of a posthumous child, in the country in which his father was domiciled at the time of the father's death. Section 112 of the Indian Succession Act recognizes the rights of a person coming into existence after the death of a testator.
(v) Section 13 and 20 of the Transfer of Property Act deal with situations in which on a transfer of property, an interest therein is created for the benefit of a person not in existence. As per Section 20, where on a transfer of property an MAC. APP. No. 602/2009 Page 16 of 40 interest therein is created for an unborn person, he acquires on his birth, a vested CA NO. 15/15 Page No. 17 of 20 interest.
(vi) Sections 312 to 316 of the Indian Penal Code provide for punishment for the offence of miscarriage; for doing any act with intent to prevent child being born alive; for causing death of quick unborn child by act amounting to culpable homicide etc. The Hon'ble High Court also referred 'Manikuttan Vs M.N. Baby, 2009 ACJ 1497,' Kerala High Court wherein it was observed that "The accident resulted in the death of a pregnant woman carrying a fourth month old foetus. Compensation for loss of foetus was claimed. The Kerala High Court held that foetus in another life in the woman and it comes as a baby in the course of time. Loss of foetus upon death of a pregnant woman is actually loss of a child in the offing for the husband of the woman. The Court held that compensation to be granted for the death of a pregnant women is for loss of two lives.
"In the first place, foetus is another life in the woman and it comes as a baby in the course of time. Though foetus grows in the body of the woman, it cannot be CA NO. 15/15 Page No. 18 of 20 equated to or considered to be a part of the body of the woman. In effect, loss of the foetus consequent upon the death of the pregnant woman is actually loss of a child in the offing for the husband of the woman.
In view of the aforesaid, I am not in consonance with Ld. MM that the domestic violence committed on a pregnant lady will not have any effect on her unborn child. Domestic violence has the potential to have an effect on children throughout any stage of their development and can hinder that development unless help or intervention is made. There is no dispute raised to the paternity of the child. The Judgment as relied upon by the respondent is not applicable to the proceedings under PWDV Act.
A woman during pregnancy needs extra care and attention and a good diet. She should be free from stress. For the proper care of the unborn child, both parents should ensure a stress free environment and all requirements towards the unborn child should be taken care by both of them. If the father does not partake in the care, he is denying and rejecting his obligation towards his own child. Though the mother is also earning and having a good income, the same does not entitle the husband to shirk from his responsibility when he is also liable to support his child and for any failure and neglect by the father qua the child yet to be born, CA NO. 15/15 Page No. 19 of 20 is certainly Domestic Violence within the contemplation of this special enactment and the object it strives to achieve. In this background the impugned order dated 08.04.2014 is hereby set aside and I hereby hold that an unborn child do come within the definition of a child and the complainant seeking maintenance for her unborn child in the form of her upkeep, welfare and an extra care required during the pregnancy was entitled to the same.
Accordingly, the Appeal is allowed with directions to the Ld. MM to determine the extent of maintenance qua the unborn child as per Law.
Criminal Appeal record be consigned to Record Room. TCR be sent back to court concerned alongwith copy of this Order.
ANNOUNCED IN THE OPEN COURT (SUDESH KUMAR)
ON 20.10.2015 ASJ, S.E., SAKET COURTS
NEW DELHI
CA NO. 15/15 Page No. 20 of 20