Legal status: Animals, Dead and Unborn Person


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.


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.