Status of the unborn, minors, lunatics, drunken and dead persons

1. Beginning and end of personality

Ordinarily legal personality begins at birth and ends at death. Salmond notes two departures: the law in some respects treats an unborn child as already a person, and in some respects protects a dead man’s interests after death. Between birth and death, the law gives full personality to every human being but limits the capacity of some to act: minors, persons of unsound mind and intoxicated persons.

2. The unborn child

The rule from Roman law is that a child in the womb is treated as born whenever that is for its benefit (nasciturus pro iam nato habetur), provided it is afterwards born alive.

• Property. Property may be transferred for the benefit of an unborn person through a prior interest, provided the whole remaining interest is given to him: section 13 of the Transfer of Property Act, 1882. Section 20 provides that where an interest is created for an unborn person, he acquires it on birth unless a contrary intention appears. The rule against perpetuity in section 14 limits how far vesting can be postponed.
• Succession. Under section 20 of the Hindu Succession Act, 1956, a child in the womb at the time of the intestate’s death who is subsequently born alive has the same right to inherit as if born before the death, and the inheritance vests from the date of the death. A son in the womb was likewise treated as in existence for partition in Mitakshara law.
• Tort. At common law a child born with injuries caused by negligence before birth could sue once born alive (recognised in England by the Congenital Disabilities (Civil Liability) Act, 1976). India has no corresponding statute; the claim rests on the general law of negligence, and the child must be born alive to sue.
• Criminal law. The Bharatiya Nyaya Sanhita, 2023 protects the unborn child: causing miscarriage (section 88, formerly section 312 IPC), miscarriage without the woman’s consent (section 89, formerly 313), an act done to prevent a child being born alive or to cause it to die after birth (section 91, formerly 315), and causing the death of a quick unborn child by an act amounting to culpable homicide (section 92, formerly 316). The Medical Termination of Pregnancy Act, 1971 permits termination in the cases it lists, which shows that the child’s protection is not absolute.
• Limits. The unborn child cannot own property or sue until born, and if it is not born alive the rights it would have taken fail. It is not a “person” who can be murdered: killing a child in the womb is not murder, though it may be an offence under sections 88 to 92.

3. Minors

A minor (under eighteen, Indian Majority Act, 1875) is a full person but has limited capacity.

• Contract. A minor is not competent to contract (section 11 of the Indian Contract Act, 1872), and his agreement is void: Mohori Bibee v. Dharmodas Ghose (Privy Council, 1903). He can be a beneficiary, a promisee, and an agent.
• Property. He can own and inherit property, managed by a guardian under the Hindu Minority and Guardianship Act, 1956 or the Guardians and Wards Act, 1890.
• Tort. He is liable for his torts, but not where the tort is in substance a way of enforcing a void contract.
• Crime. A child under seven cannot commit an offence (section 20 BNS, formerly section 82 IPC); a child between seven and twelve is exempt if he has not attained sufficient maturity to judge the nature and consequences of his conduct (section 21, formerly 83). A child in conflict with law under eighteen is dealt with under the Juvenile Justice (Care and Protection of Children) Act, 2015.

4. Persons of unsound mind (lunatics)

• Contract. A person is of sound mind for contracting if he can understand the contract and form a rational judgment of its effect on his interests (section 12 of the Indian Contract Act). A person usually of unsound mind may contract in a lucid interval. A contract by a person of unsound mind is void.
• Crime. Nothing is an offence done by a person who, at the time, by reason of unsoundness of mind, is incapable of knowing the nature of the act or that it is wrong or contrary to law (section 22 BNS, formerly section 84 IPC). This follows the M’Naghten rules (1843).
• Tort. Unsoundness of mind is generally no defence in tort, except where a specific state of mind (malice, intention) is an element of the wrong.
• Property. He can own and inherit property; it is managed for him by a guardian or manager appointed by the court.

5. Drunken (intoxicated) persons

• Crime. Involuntary intoxication is a defence if it made the person incapable of knowing the nature of the act or that it was wrong (section 23 BNS, formerly section 85 IPC). Voluntary intoxication is no defence; where an offence needs a particular knowledge or intent, the intoxicated person is treated as having the same knowledge as if sober (section 24, formerly 86).
• Contract. A person who is so drunk that he cannot understand the contract or form a rational judgment about it is not of sound mind for that purpose: the illustration to section 12 of the Contract Act gives the example of a man so drunk that he cannot understand the terms of a contract.
• Tort. Drunkenness is no defence.

6. Dead persons

A dead man is not a person; he has no rights. But the law protects three interests connected with him, mainly for the sake of the living.

• His body. Offering indignity to a human corpse, or trespassing on a place of sepulture, is an offence (section 301 BNS, formerly section 297 IPC). The Supreme Court has recognised that the right to dignity under Article 21 extends to a decent burial or cremation after death.
• His reputation. Imputing anything to a deceased person may be defamation if it would harm his reputation if living and is intended to hurt the feelings of his family (Explanation 1 to section 356 BNS, formerly section 499 IPC).
• His estate. His property passes by will or on intestacy, and the law gives effect to his wishes as expressed in a will, within limits such as the rule against perpetuity. Actions in tort survive for or against his estate in many cases, under the Legal Representatives’ Suits Act, 1855.

How this is examined

As a short note: “Status of unborn person” (January 2026, Q.8(a); June 2025, Q.4(b)). As an essay: “Define person. Explain the legal status of an unborn child” (February 2025, Q.4(a)). For the essay, give Salmond’s definition of person and then the four branches (property, succession, tort, criminal law) with a section for each. Older papers ask for the legal status of the dead or of a lunatic; use the matching section above.