GITAM SCHOOL OF LAW

JURISPRUDENCE-II
ON

Legal Status: Animals, Dead And

Unborn Person

2019-2024
BY:- Venkata Sai Rampelly

3rd YEAR, BA.LLB (hons.).

ROLL.NO. 121933101040

                    
 DECLARATION

I, declare hereby the assignment titled “Legal

Status: Animals, Dead And Unborn Person”
submitted by me to GITAM School of Law, GITAM
Deemed to be university, Vishakhapatnam is a bona
fide project work carried out by me under the
guidance of Uma Rao madam
I hereby further declare that the work in this project
has not been submitted nor will ever be submitted
elsewhere.

Place : Vishakhaptnam
                             
Signature of the candidate

Date:
Introduction
The main objective of this law is to protect the interests of the persons or animals who cannot
speak for themselves and cannot protect their rights by themselves. The law has several
provisions for them. The article includes the rights and the duties of the unborn child, dead
person and the rights of the animals which is explained with the help of legal terminology,
maxims, legal provisions and case laws. The juristic personality of different persons living,
non-living or a thing is explained in the present article. All those acts which are beneficial for
others are liable as lawfully and are in favour of protecting the interest of mankind. But the
act done in order to exploit someone’s rights and morals is punishable and it is an unlawful
act.

The concept of legal personality and the rights of the dead person, unborn child and animals
are elaborated in this article.

Legal Personality
The origin of the word person is driven from the Latin word ‘ persona ‘ which means a mask
worn by an individual playing different roles like in the drama. The word personality
originates from the same word root which denotes the ‘member of Trinity’. The personality is
the integration of all traits which are the status, role and reputation of the person in a society.
Legal personality means that the person is enjoying their legal status. In the eyes of law legal
status or juristic personality means that the person is able to protect his own rights and duties.
There are basically only two types of people: one is natural and other is legal. The natural
person is who is capable of deciding what is right and wrong and capable of bearing rights
and duties. Legal person is nothing but an artificial custom of law. The legal personality are
those to whom the law vested the rights and duties.

The word ‘Status’ has different meanings. Salmond has given four meaning of the word
status

1. Legal condition of any kind, whether personal or proprietary.

2. Personal legal conditions, excluding proprietary relations.
3. Personal capacities and incapacities as opposed to other elements of personal status.
4. Compulsory as opposed to conventional legal position.
In other words status means the condition which arises due to the membership of a particular
class or group and also affects the right and duties of the members of that class. The general
principle of status is that when created by the law of one country, it ought to be judicially
recognised all over the world.

Legal Status Of Animals

The legal system of modern law does not consider animals as a person. Therefore, they don’t
have legal rights and duties. But in the ancient law and some of the other provisions the
animal being held liable for their wrongful acts. In the ancient times when an ox kills a man
then that ox will be stoned in the wall and the flesh of that box will not be eaten.

The modern law does not consider the right and duties of the animal rather they consider it as
the rights and duties of the owners of the animal. This means that the owner of the animal
will be liable for the wrongful act of his animal. The liability arises on the master is not
because of vicarious liability ( the master be held liable) but because of the negligence of the
master to control his animal in causing harm. This can be explained by an example, a man
was the owner of a ferocious dog. He was well known about the ferocity of his dog and then
also has not taken any precautions. One day the dog was unleashed and bit a man. In this
case, the master or the owner of the dog is liable as he is negligent.

There are two principals where we can say that a animal can possess some legal rights:

Cruelty to animals is criminal offences.

A trust for the benefit of a particular class of animals, as opposed to one for individual
animals, is valid and enforceable as public and charitable trust.

Section 11 of Prevention of Cruelty to Animals Act,1960 made it punishable that whoever

causes cruelty to anyone’s animal either by beating, causing pain, kicking, torturing or
forcing them to overload. Any of the acts done will be punishable under this act. The rights
and freedom are guaranteed to the animals by the Constitution of India under Article 51 A (g)
(h) which is the Magna Carta of animal rights.

In the case of Animal Welfare Board of India v. Nagaraja, it is stated that Article 21 of the
Constitution of India will safeguard the rights of all humans and protect their lives. The
definition of the word ‘life’ is expanded and explained that it includes all forms of life
including animal lives and all the animal has honour or dignity. Every species has an inherent
right to live and is required to be protected by the law.

The cases where the animals are poached either for their skin, bones, teeths and flesh or for
the purpose of hunting is strictly banned. The implementation of such laws is still in question
and there is still the need to increase the strictness for the laws regarding the protection of
rights of animals.

In the case of Pettingall v. Pettingall, it is laid that the trust for the benefit of the Animal’s
maintenance can be made. The charitable trust is created for the promotion of public welfare
and the advancement of religion. The testator has left a deed for the horses and dogs for as
long as they live. The trust deed was held valid and enforceable by law.

Legal Status Of Dead Person

The right of a person begins from his birth and ends when he dies. But there are some of the
provisions where a dead man can protect his rights after his death as well. It is true that the
legal rights of a dead person are no longer present but some of the provisions are there even
after their death. The dead person loses their personality with their life. But the legal
testaments, will or any kind of deed made by a dead person while alive, will be obeyed by the
law even after his death. These testaments will not be changed or barged by anyone in any
condition. This means that if a person has a will after death, then his property will be
inherited by his legal legates. And if the will does not include any kind of disposition of
property in favour of legal legates, then in that case the will is not enforceable.

In law, the dead are not a person, but a thing. The juristic personality comes from the birth
and goes when the person is dead. After death they are not entitled to any rights but there are
some of the rights they can possess even after death. The rights are:

● Right of reputation
● Right of will
● Right of decent burial
The reputation of a dead person is protected by the law. The defamatory statement made on a
dead person will affect the living members of the family. When someone defames a dead
person, then it is actionable in the court as it will affect the family of the dead person
emotionally and mentally. Under Section 499 of the Indian Penal code, it is a punishable
offence. If the sentiments of the living member of the deceased person’s family get hurt, then
the person defaming will be held liable. Thus, defamation is actionable in this case.

Similarly, with the case of right to will. The person has a right to write a will before his death
and make it enforceable with the help of his lawyer. So, the distribution of the property can
be done accordingly. The property will be distributed among the legal legates and the heirs of
the deceased person. The person who writes the will is the testator and the legal heirs are the
legates. The will is called a testamentary document.
In the eyes of law, a dead man’s corpse is a property which can be disposed of by any
instrument. But the law ensures that the dead man’s corpse must get a decent burial and a
proper cremation ceremony. Now in the modern law, the man in his will make a valid trust
for the repairs and maintenance of his graveyard.

In the case of R v. Price, it is said that any violation of the grave is a crime. Every man’s
corpse is entitled to a decent burial. Similarly, in the case of Williams v. Williams, it is said
that the testamentary directions of a man as to the disposal of his body are without any
binding force.

Legal Status Of Unborn Person

The child in the mother’s womb has the same rights as that the child will possess after the
birth. The maxim ‘Nasciturus Pro Jam nato bachelor’ explains the legal status of the unborn
child. The legal fictions regarded the unborn child as an already born child. The Latin maxim
that refers to law protects and guards the rights of the foetus which can be right related to
property, shares of the undivided family, inheritance etc. It says that the unborn is deemed to
have been born to the extent that his own benefits are concerned. The term Nasciturus means
the one who is about to be born or a conceived foetus. This concept was first found in Roman
laws and after that European and American law as well in respect of inheritance. In the case
of Elliott v. Joicey, it is stated that the legal fiction is only applied for the benefit of the child
who is yet to be born.
In criminal law also if any harm is caused to an unborn child in the womb of the mother it
will be considered as an offence. Under Section 315 of Indian Penal Code, killing a child in
mother’s womb was a crime but not a felony and if the child was born alive and thereafter
died of the pre-natal injuries, it was murder. This can be explained by a case R v. Senior in
this case the child’s head was extruded from the mother’s womb and the surgeon
intentionally crushed the skull of the child. The surgeon is liable for the offence of
manslaughter. Thus is liable for imprisonment. In Criminal Procedure Code under Section
416 It is stated that a woman who is sentenced to death is found pregnant, then execution of
the sentence will be postponed until the child is born and also after the birth of the child
attains a particular age.

The rights of an unborn child whether it is proprietary or personal are contingent on his birth
as a living being. The legal personality of the dead person is not present but this not the case
with the unborn child. The law presumes the child is yet to be born and there is nothing in
law to prevent the person from owning property before he is born. In the case of inheritance,
the man can settle his property to his wife and child to be born stated in his will or may die
intestate and his unborn child will inherit his estate. The provisions for the same are provided
in Family law. The Hindu undivided family also has the provision for the same. If the Karta
dies and his wife is pregnant, the shares of the Hindu family will be divided considering the
child to be born as living and the unborn child will also get the shares in the property. Even
the posthumous child also has the right to property and may inherit, but if he dies in the
womb of stillborn, his right to inheritance fails and is not in effect. The legal exception of this
is that it is exclusively applied for the purpose of inheritance and the conditions must satisfy
for its validity is that the child is unborn and is yet to be born.

Conclusion
Legal status is given in order to protect the interests of such people who either cannot have
the ability to do so or not in a position to protect their own rights. As explained in Article 21,
the word life also includes the life of an animal as well as those things which affect the life of
a human being. In a recent report it is said that all types of animals whether flora and fauna
are considered as legal entities. Like a dead man cannot protect his or her certain rights which
they can enjoy even after death. An unborn child cannot exercise its rights and not even
protect them. So, there are certain legal provisions where the rights of an unborn can be
protected. Same is with the case of animals, they cannot speak, tell and fight for its rights.
That’s why there are various provisions for the protection and safeguard of animals. In this
way their rights can be protected and no one can exploit the rights of others for their selfish
needs.

Bibliography

Books referred
Animals And The Law by Jaideep Verma

Animal Laws of India by Menaka Gandhi 6th edition

Understanding Jurisprudence by Raymond Wacks 5th edition

Legal status: Animals,Dead,Men and Unborn Person by Mr. Dhiraj kumar

Websites

https://blog.ipleaders.in/concept-of-rights-and-duties-under-jurisprudence/

https://lexforti.com/legal-news/rights-of-an-unborn-child-with-reference-to-article-21-of-the-indian-
constitution/#:~:text=As%20per%20%E2%80%9C%20Article%2021%20of,to%20a%20normal
%20person%20because

https://thewire.in/rights/nhrc-covid-19-bodies-ganga-rights-of-the-dead