Request denied: Nikita and Haresh Mehta with Dr Nikhil Datar. The court rejected their plea to abort Nikita's 25-week-old foetus, on the grounds that a foetus is a living being and cannot be killed. file pic

August 4, 2008

Division bench of Justices R M S Khandeparkar and A A Sayed of the HC dismisses Nikita Mehta's plea to abort her 25-week-old foetus, suffering from congenital heart blockage. It holds that a foetus is a living being.

May 2, 2008
A single bench of Justice Abhay S Oka of the HC rejects compensation for the death of a foetus, saying it could not be counted as a living person.

Why this contradiction?

While the Mehtas have not been allowed to abort their foetus, as it considered it a living being, just three months ago, another bench of the HC rejected a demand for compensation for the death of a foetus, as it could not be counted as a living person.

On Monday, a division bench of R M S Khandeparkar and A A Sayed dismissed Nikita Mehta's plea to abort her 25-week-old foetus, as it was suffering from congenital heart blockage.

The court held it couldn't allow the killing of a foetus, as it is a living being.

Barely three months ago, a single bench of Justice Abhay S Oka of HC had announced a verdict that the death of a foetus could not be compensated, as it is not a living person.

Margappa Vadar had sought compensation for the death of his pregnant wife and her seven-month-old foetus after an accident in January 1992. The Motor Accident Claims Tribunal (MACT) had granted him compensation only for his wife, but not for the foetus. Even the HC did not bring him any relief.

The HC had then observed, "When the statute refers to a person, the reference is to a human being, which exists in the world. It is true that a foetus may have a life or may have signs of life. However, a foetus becomes a human being or a person only after he or she is born… Therefore, the 'death' of a foetus in the womb cannot be termed as a death of a person. Therefore, thetribunal does not get jurisdiction to entertain such a claim," the court had announced on May 2.

Lawyers say

Subhash Jha, a lawyer, said that though the views expressed are different, the division bench is not bound by the order passed by a single bench. "It can only have persuasive value," He added.

Another senior lawyer, Manjula Rao said the two cases were different and could not be compared.

 "In the first case the parents want to abort a foetus, fearing that the kid will be born handicapped. In the case of compensation for the death of a foetus, the baby, when born may or may not help him, so on that count, the compensation can be denied."