Report No. 111

5.6. Relatives in the womb-Proposal.-

It is also proper that persons in the womb at the time of death should also be covered, if subsequently born alive.1

1. See Appendix 1, Clause 2(b); compare section 99(ix), Indian Succession Act, 1925.

5.7. While dealing with the question of persons who should be entitled to rank as beneficiaries, some comments are in order as to divorced spouses. In England the expression "wife" as occurring, in the Fatal Accidents legislation was judicially construed as not including a divorced wife.1 However, in 1982, the law was amended. Section 1(3)(a) and section 1(4), Fatal Accidents Act, 1976 (as amended by section 3 of the Administration of Justice Act, 1982) provide that the expression "dependant" means, inter-alia, the wife or husband or former wife or husband of the deceased, it is also made clear that the reference to the "former wife or husband of the deceased.

It is also made clear that the reference to the "former wife or husband" of the deceased includes a reference to a person whose marriage to the deceased has been annulled on declared void, as well as a person whose marriage has been dissolved. On merits, this is a good provision. On the passing of a decree of divorce or nullity of marriage, the court generally orders a spouse to make to the other spouse, periodical payments by way of maintenance. If the spouse so ordered to pay maintenance dies, liability should survive against the estate of the deceased. But in India, this has now been achieved judicially. Hence no statutory provision is needed.1

1. Payne Collins v. Taylor Woodrow Construction Co. Ltd., (1975) 1 All ER 899.

2. Aruna v. Dorothea, AIR 1983 SC 916.