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A Casebook on Land Law

A CASEBOOK ON

LAND LAW
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A Casebook on Land Law

UNIVERSITY OF DHAKA

Submitted to

Md. Towhidul Islam Ph.D.

Professor, Department of Law,
University of Dhaka.

Submitted by

Md. Hafijur Rahman

ID: 07, LL.B. (Hones), 2nd year
Department of Law, University of Dhaka.
Email: [email protected]
Phone: 01912146141

Submission date: 30 March 2023

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A Casebook on Land Law

Table of content

Case Case name and citation Page no

No.

1 Sadrul Huq and Ors. vs. Farhana Firdousi and Ors. : 74 DLR (2022) 371 04

2 07
SHAFIQUR RAHMAN VS. IDRIS ALI 37 DLR (AD) (1985) 71

3 AZIZUR RAHMAN VS. BHAYETULLAH & ANOTHERS, 45 DLR (AD) 11

(1993) 120

4 SERINA BEGUM AND ANOTHER VS. MOFIZUL ISLAM AND 13

OTHERS42 DLR (AD) (1990) 77

5 Yusuf Ali Chowdhury and Ors. Vs. Province of East Pakistan and Ors.11 14
DLR (1959) 316
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Case #1
Case name: Sadrul Huq and Ors. vs. Farhana Firdousi and Ors.

Citation: 74 DLR (2022) 371

Facts:

• The appellant became owner of 27.00 decimal land in 1987 by purchase. On 11 July
2005, the appellant's son married the respondent and the dower amount was set 500001
tk out of which tk 200000 was realised against ornaments and furniture.

• Out of the remaining portion, the appellant i.e. the father of the husband transferred 9.0
decimal of his 27 decimal land to the wife on behalf of his son by writing in clause 16 of
the Kabinnama.

• In 2008 the husband moved to England and stopped communicating with the wife. Being
informed that the husband would never take her to England, she claimed her remaining
portion of dower along with the partition of the said 9.0 decimal land.

• The appellant denied such transfer and consequently the partition. The wife as a plaintiff
filed a partition suit in the District Court and the court decreed in favour of her
considering the evidence produced. Being aggrieved by the decree the appellant
preferred this appeal before the High Court Division.

Issues:

1. Whether father or any other person can undertake the liability to pay dower on behalf of
the bridegroom.

2. Whether on behalf of a party to the marriage, any person may undertake to transfer land
instead of the dower money or what may be the form of dower.
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A Casebook on Land Law

3. Whether such transfer of land by the father of the husband as against dower may be
effected and enforced under the Muslim Law and the law of the land.

Rule of Law:
• Rule 19 of the Muslim Marriage and Divorce RegistrationRules, 1975
• Section 123 of the Transfer of Property Act, 1882
• Sections 17A and 17B of the Registration Act, 1908
• Section 5 of the Family Court Ordinance 1985.

Case cited:
• Altab Hossain vs. Aziza Begum, 17 BLC (2012) -71

Analysis
Issues #1 and #2
Under Rule 19 of the Muslim Marriage and Divorce Registration Rules, 1975, the nikahnama is
registered between two parties, namely, husband and wife.

The learned counsel appearing on behalf of the appellant argued that the father is not a party
thereto and thus cannot undertake the liability. Also the settled amount was in taka and the
payment made by land transferred by the father of the husband through kabinnama. So such
transfer is of no legal effect.

The respondent contested that under Sharia law the liability is upon the husband but anyone
can pay on behalf of him and by any valuable instead of the settled amount.

As the matter involved questions of religious importance, the court sought assistance of two
amici-curiae from Islamic Foundation. Both of them unanimously expressed that the father or
anyone else can take the responsibility to pay dower on behalf of the husband including his
father, and also it can be paid instead of money by anything valuable. The court appreciated the
view of the learned amici curiae.

Issue #3
According to section 123 of the Transfer of Property Act, 1882, any gift of immoveable property
must be effected by a registered instrument.

Similarly the sale of immoveable property mandatorily be effected by a registered instrument as

per the provisions of Section 17A and 17B of the Registration Act, 1908, as amended in 2004.
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A Casebook on Land Law

So, the appellant counsel argued that such transfer in the Kabinnama can neither be effected as
gift nor as sale as the instrument was not registered in the manner required by law and as the
marriage was solemnized after such amendment.

Section 5 of the Family Court Ordinance, 1985 is about jurisdiction of the Family Court as the
section states that subject to the provisions of the Muslim Family Laws Ordinance, 1961 (VIII of
1961), a Family Court shall have exclusive jurisdiction to entertain, try and dispose of any suit
relating to, or arising out of, all or any of the following matters, namely:-

(a) dissolution of marriage;

(b) restitution of conjugal rights;
(c) dower;
(d) maintenance;
(e) guardianship and custody of children.

The responden counsel admitted that the marriage was solemnised after the Amendmentment
Act 25 of 2004. But referring to the provisions of the Family Court Ordinance, 1985, he argued
that the Family Court is a special court which has overriding jurisdiction to any other law
including the Registration Act,1908 and the Transfer of Property Act, 1882. As the wife chose
the wrong forum in filing a civil suit in a court of local jurisdiction, she should have the
opportunity to withdraw the same and file a fresh suit in the Family Court which exclusively
deals with matters relating to marriage, dower, dissolution of marriage etc.

Conclusion
The court set aside the decree made in favour of the respondent by the lower court. Because
the transfer in clause 16 of the Kabinnama does not fulfil the requirements of registration in the
manner prescribed by the Registration Act, 1908. Also the lower court wrongly relied upon the
case Altab Hossain vs. Aziza Begum, 17 BLC (2012) -71 where the marriage was solemnised
long before the Amendment Act 25 of 2004.

The court also held that the wife should have an opportunity to withdraw the case at this
appellate stage and file a fresh suit seeking dower before the Family Court. Because the
property in question can be treated as dower in Muslim Law as settled before, and since the
Family Court is a special court with an overriding jurisdiction to any other law inconsistent as per
to the section 3 of the Family Court Ordinance, 1985. Also the Family Court deals with matters
related to dower, dissolution of marriage, custody etc as stated in section 5 of the same
Ordinance.
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A Casebook on Land Law

Case #2
Case name : SHAFIQUR RAHMAN VS. IDRIS ALI

Citation: 37 DLR (AD) (1985) 71

Facts
The plaintiff's father filed a case for the recovery of a loan, which was decreed. The plaintiff
purchased two properties of the judgment-debtor in 1959 and 1961 respectively through
auctions to realize the decrial amount, but he could not take actual possession. Later, the
plaintiff found out that the defendant colluded with the judgment-debtor to create an ante-dated
sale-deed in respect of the same properties on 30 January 1958. The plaintiff filed a case for the
declaration of his title and recovery of possession, which was contested by the defendant. The
trial court and the High Court Division accepted the defendant's contention that the sale-deed
was genuine and that the transfer was not hit by a section 9(1) of the State Acquisition and
Tenancy Act. The High Court Division also rejected the plaintiff's contention that his vested
interest in the properties was not affected by the subsequent amendment of the law. The suit
was dismissed.

Issues :

1. Whether the transfer made by the judgment-debtor was hit by section 9(1) of the State
Acquisition and Tenancy Act, 1951 that the transfer was made in violation of mandatory
provision for obtaining prior permission from the prescribed authority.

2. Whether the judgment-debtor had any saleable interest in the suite land to be
transferred by court-sale.

3. Whether the subsequent Amendment of the law dated 7 August 1961 affected the
plaintiff's vested interest in the properties created by the court sales on 20 September
1959 and 16 February 1961, and whether the transfer of the suit land under the sale-
deed dated 30-1-58 was valid.

4. Whether the vested right created by court sale can sustain following equity justice and
good conscience when there is express provision of law in favour of nullifying such right.
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Rule of Law
• Section 9(1) and section 3(1) of the State Acquisition and Tenancy Act, 1950
• Article 3 of Ordinance No. 27 of 1961.

Case cited
• Colonial Sugar Mills Company Vs. Irving" (1905) AC 369
• Delhi Cloth & General Mills Company vs. Income-tax Commissioner", AIR 1927 PC 242

Analysis:
Issue #1
According to subsection 1 of section 9 of the State Acquisition and Tenancy Act, 1950, after the
publication of a notification under Section 3(1), no one listed in that notification as a rent-
receiver may transfer their rights and interests in any estate, taluk, tenure, holding, or tenancy
mentioned in the notification without prior permission from a prescribed authority. This includes
transferring land that they possess without permission. This restriction cannot be bypassed
except as provided in subsection (1a).

There is no dispute that the original judgment-debtor was a rent-receiver whose rent-receiving
interests were acquired under section 3(1) of the Act. As such he was prohibited from
transferring any interests without prior permission of the prescribed authority under section 9(1)
of the same. So, it is clear that he violated the mandatory provision of that particular section.

However subsection 1 of section 9 of the Act was substituted by Ordinance No. 27 of 1961
promulgated on 7 August 1961 which lifted the embargo on transfer of land, agricultural or non-
agricultural, not exceeding ten bighas and this amendment was given effect from the date of
coming into force of original section 9 of the State Acquisition and Tenancy Act that is 16-5-
1951.

So, after amendment of the said subsection the bar to transfer such land had been
retrospectively withdrawn leaving the judgment-debtor with authority to transfer the disputed
land as it was less than 10 standard bighas as required by the law to be subject to prior
permission under the Act.

Issue #2
The amendment of the State Acquisition and Tenancy Act, though made in August 1961, is
found to have been given effect from the commencement of the original section 9(1). The
words, the section ''shall be deemed always to have been so substituted" are clear and
unambiguous enough to show that this amendment has been given retrospective operation from
long before the transfer by the original judgment-debtor was effected and also before the
plaintiff's auction was held.
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A Casebook on Land Law

In view of this provision of law as stood after the amendment the transfer of the suit land under
the kabala by the judgment-debtor stood valid. This being the position the judgment-debtor had
no saleable interest in the suite land to be transferred by court-sale.

Issue #3
In Colonial Sugar Mills Company Vs. Irving a tripartied rule regarding retrospective effect has
been established which later on been followed in "Delhi Cloth & General Mills Company vs.
Income-tax Commissioner" aswell.

1. Laws that only deal with procedural matters can be applied retrospectively unless it's
explicitly prohibited.
2. However, laws that affect existing rights cannot be applied retrospectively unless it's
clearly stated in the law or intended by the lawmakers.
3. If a law applied retrospectively would change or remove final orders that were made
before the law was passed, it is considered as affecting existing rights.

Relying upon this rule, the appellant's lawyer argued that argued that the amendment of 1961 is
not applicable to the transfer under the kabala deed dated 30-1-58 and that the appellant's
vested right could not be affected by the Amendment. Because the amended provision of the
section 9(1) affects the existing right of the parties.

Article 3 of the Ordinance 27 of 1961 clearly depicts that ''In section 9 of the said Act—
(i) for sub-section (1), the following shall be substituted, and shall be deemed always to have
been so substituted."
The retrospective effect has been firmed and specified reflecting intention of the legislating
authority.
The court found nothing contradictory between the principles developed in "Colonial Sugar
Mills" case. Rather the simultaneous existence is possible as the principle 2 gives authority to
make laws affecting existing rights provided the intention of the lawmakers has been clearly
expressed.

Issue #4

The appellant argued that even if the the Amendment has been given a retrospective operation
from the original date of the emergence of the section 9, the appellant's subsequent right by
court-sale should not be taken away in view of equity and justice specially when the sale deed
by the debtor in favour of the defendant was a void one in light of the existing position of law at
that time.

But the court was of the view that in that case the expression "shall be deemed always to have
been so substituted" will be useless, meaningless and totally unnecessary. A cardinal principle
of construction is that it must be presumed that the legislature does not use any word
unnecessarily or without any meaning or purpose.
Of course, on the grounds of equity and justice the appellant's vested right by court-sale should
not have been affected by a subsequent enactment. But in view of the express language of the
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A Casebook on Land Law

amending statute the Court cannot give a different interpretation on the ground of equity and
justice.

Conclusion
Based on an examination of the relevant facts, the legal framework, and the judgment rendered
by the High Court Division, the Appellate Division has determined that the transfer of land to the
defendant, which was executed by the judgment-debtor, is lawful. This is because the
retrospective effect of amending Ordinance No. 27 of 1961 nullifies the legal impediment that
existed at the time of the sale deed. As a result, the transfer that was made via the kabala dated
30 January 1958 remains valid, and the plaintiff, who purchased the property through auction,
has no legal right to claim ownership. Therefore, the Appellate Division finds that the dismissal
of the plaintiff's suit was appropriate and lawful.
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A Casebook on Land Law

Case #3
Case name: AZIZUR RAHMAN VS. BHAYETULLAH &
ANOTHERS,

Citation: 45 DLR (AD) (1993) 120

Facts:
A disputed land transfer took place on 24th January 1961. The respondents first filed a Misc.
case in 1964 in the First Court of Munsif against the transfer. Then the respondents filed an
application for pre-emption on 24th January 1974, which was resisted by the pre-emptee on the
grounds of limitation. The Munsif allowed pre-emption by rejecting the objections of the
preemptee. However, the Subordinate Judge reversed the decision on the ground of a defect of
parties. The pre-emptor went to the High Court Division in revision, and the court set aside the
Subordinate Judge's decision and restored the Munsif's order. The respondent went to the
Appellate Division.

Issues:
The main issues before the Appellate Division to consider are

1. Whether the court below correctly decided the issue of limitation.

2. Whether the President's Order No. 98 of 1972 (Bangladesh Land Holding Limitation
Order) which puts a ceiling as to ownership to 100 Bighas of land stood as a bar in
allowing pre-emption.

Rule of Law:
• Section 26C and 26F of the Bengal Tenancy Act, 1885
• Article 181 of the Limitation Act
• President's Order No. 98 of 1972
• Section 90 of the State Acquisition and Tenancy Act, 1950
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Analysis:
Issue #1
It is well-settled that Article 181 of the Limitation Act applies to an application under section 26F
of the Bengal Tenancy Act by a co-sharer tenant who has not been served with notice under
section 26C of the same, and his application would be in time if made within three years of the
sale.
The learned Munsif mistakenly found that the three-year limitation period would run from the
date of sale, and the application was filed within this period. But the court admittedly found that
the application for pre-emption was filed within the three-year limitation period as required by
law i.e. within three years from the date of sale, and the objection was not challenged by the
pre-emptee.

Issue#2
Bangladesh Land Holding Limitation Order, 1972 (P.O. 98 of 1972) puts a ceiling of 100
standard Bighas regarding land ownership. Section 90 in part V of the State Acquisition and
Tenancy Act, 1950 also puts ceiling.

In the present case the court stated that the right of pre-emption accrued a decade before the
Bangladesh Land Holding Limitation Order came into being. Furthermore, the cause of action
arose before part V of the State Acquisition and Tenancy Act came into force. So, limitation as
to land holding as provided in the State Acquisition and Tenancy Act is also not attracted.
Therefore, the appellant's contention that the pre-emptor had already got 100 kanis of land and
the P.O. 98 of 1972 stood as a bar in allowing pre-emption is not valid.

Conclusion:
In light of the above discussion, the appeal is found to be without substance and is dismissed
without any order as to cost.
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A Casebook on Land Law

Case #4
Case name: SERINA BEGUM AND ANOTHER VS. MOFIZUL
ISLAM AND OTHERS

Citation: 42 DLR (AD) (1990) 77

Facts:
The case involves a pre-emption claim over 0.70 acres of land out of 3.22 acres. The pre-
emptor deposited Taka 4000/- with compensation at the rate of 10% while filing the pre-emption
case. The pre-emptees contended that the deposit is short and the application for pre-emption
must fail. The pre-emptor made an application for leave to deposit the balance consideration
money with statutory compensation, which was allowed by the learned Munsif but objected to by
the pre-emptees. The pre-emptee filed a Civil Revision and obtained a rule, contending that the
application for pre-emption was filed with a short deposit and was, therefore, incompetent.

Issue:
• Whether the prayer for deposit of balance consideration beyond four months was
accepted illegally.

Rule:
• Section 96(3)(b) of the State Acquisition and Tenancy Act provides that in certain
circumstances, the court may hold an inquiry after giving all the parties an opportunity of
being heard for direction to deposit further sum if necessary within a specified period.

Application:
The High Court Division considered the circumstances of the case and held that the pre-emptee
petitioners cannot complain of not getting an opportunity of being heard and of not holding any
inquiry. The pre-emptor and the court had accepted the proportionate valuation of the land
under pre-emption as objected to by the petitioners themselves, and an inquiry would not have
raised the proportionate value beyond the amount stated by the petitioners in their written
objection. The learned Munsif rightly granted the prayer for leave to deposit the balance
consideration money with statutory compensation.
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Conclusion:
The appeal is dismissed without any order as to cost, as the High Court Division was correct in
taking the view that the prayer for deposit of balance consideration beyond four months was not
accepted illegally.

Case #5
Case name: Yusuf Ali Chowdhury and Ors. Vs. Province of East
Pakistan and Ors.

Citation:11 DLR (1959) 316

Facts:
The case involves an appeal from a judgement of the High Court of East Pakistan, which
refused to issue a writ of mandamus on the Province of East Pakistan and the Secretary,
Finance and Revenue Department, Government of East Pakistan. The appellants are rent-
receivers who own Tepakhola gohata and a daily bazar, which were acquired by the
government under the East Bengal State Acquisition and Tenancy Act, 1950. The appellants
contended that they are entitled to retain possession of their hats and bazars within the limits
permitted by the Act under section 20, and they relied on a previous case, Mohar Ali and
another vs. The Province of East Pakistan & another D.L.R. [1957] 569.
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Issue:
• The main issue at stake is whether hats and bazars fall within the three classes of lands
mentioned in section 20(2)(b) of the East Bengal State Acquisition and Tenancy Act,
1950.

Rule:
Section 20(2)(b) of the East Bengal State Acquisition and Tenancy Act, 1950 provides that a
rent-receiver, a cultivating raiyat, a cultivating under-raiyat or a non-agricultural tenant shall be
entitled to retain, as a tenant under the Provincial Government, possession of lands in his khas
possession of the following classes:
• (i) lands used for agricultural or horticultural purposes including tanks;
• (ii) lands which are cultivable or which are capable of cultivation on reclamation, and
• (iii) vacant non-agricultural lands.

Application:
The appellants contended that their hats and bazars fall within the classes of lands mentioned in
section 20(2)(b) of the Act.
However, the court noted that the khatian (Revenue Record) relating to these hats and bazars
exhibited in the case, Plot No. 341 is a bazar and in the remarks column it is stated that it is held
every day in the morning, and from the affidavit it appears that there are also certain structures
on this land. With regard to the other disputed plots, Nos. 342 and 346 are described as hats
and in the remarks column it is stated 'Gohata once in a week on every Tuesday'. The hats
remain vacant.

Conclusion:
The court held that hats and bazars do not fall within the three classes of lands mentioned in
section 20(2)(b) of the Act. The court noted that the explanation provided in clause (a) of sub-
section (2) of section 20 specifically states that lands covered by buildings do not include hats or
bazars. Therefore, the court concluded that the appellants are not entitled to retain possession
of their hats and bazars, and the government's acquisition of their lands is valid
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THE END
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An Assignment on:

Analysing the Provisions of Section 309 of the Penal Code, 1860 for
the Purpose of Evaluating its Rationale and Justification.

Submitted to: Submitted by:

Dr. Farzana Akter Md. Hafijur Rahman

Associate Professor, ID: 07, LL.B.(Hons) 2nd year,
Department of Law, University of Department of Law, University of Dhaka
Dhaka Email: mdhafijur-48-
[email protected]
Phone: 01617917226

Course title: Criminal Law

Course code: 202
Submission date: 2 April 2023
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Analysing the provisions of Section 309 of

the Penal Code, 1860
for the purpose of evaluating its rationale and justification.

Introduction
The present global approach towards suicide considering it as an offence is way more liberal
than that of it used to be few decades earlier. With an exception of handful of countries, almost
all of the nations have successfully decriminalised suicide and its attempt. Suicidal tendency is
considered to be a mental health issue and it needs to be dealt with soft treatment rather than
imposing sanction. However, countries holding attempt to commit suicide as a criminal offence
justifies imposition of punishment for they believe that penalising has deterrent effect.
Bangladesh is of the handful of countries which still criminalizes attempt to suicide under its
Penal provisions though the judiciary shows reluctance to penalise the accused following this
provision. The rationale and justification behind incorporating Penal provision in order to
deter suicide is need to be reconsidered and scrutinised in the context of present legal and
social set up.

Analysing penal provision

Section 309 of the Penal Code 1860 criminalizes attempted suicide and provides for
punishment with imprisonment up to one year or fine, or both.

The section reads,

"Whoever attempts to commit suicide and does any act towards the commission of such
offence, shall be punished with simple imprisonment for a term which may extend to one year,
or with fine, or with both."
The section is plain and straightforward which includes any sort of "attempt to commit
suicide"
within its ambit and criminalizes it. The intention of the legislature while formulating this
provision was clear as the provision implies that if someone tries to commit suicide and fails to
achieve his or her goal, he or she may face simple imprisonment for up to one year, a fine, or
both.
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Definition of suicide
Neither the section 309 nor any other provision of the Penal Code, 1860 defines the term with
certainties. The plain reading of section 309 provides a generalized view of the term
incorporating any act by a person capable of killing himself within its periphery.
The subject matter of this provision is ‘suicide’ and understanding the same is significant with
respect to the discussed provision. Suicide is made up of two words, ‘sui’, which means self,
and ‘cide’, which signifies killing. In other words, a person committing suicide must do it
themselves, regardless of the tools they use to accomplish their goal of killing themselves.
Black's Law Dictionary defines suicide as the wilful and voluntary act of a person who
understands the physical nature of the act, and intends by it to accomplish the result of self-
destruction.

Rationale
Article 32 of the Constitution of the People's Republic of Bangladesh guarantees right to life
and personal liberty. This is a fundamental right of the citizen of this land that the state shall
ensure their enjoyment of right to life and liberty without being hampered neither by the state
itself nor by any third party intervention.
According to survey Each suicide death leaves an estimated 135 other individuals exposed to
the suicide.1 In such a scenario the state has justification to take offence of suicidal activity in
order to ensure public safety and public policy. Also the traditional deterrent theory of
punishment supports the view that penalizing keeps potential wrongdoer aloof from criminal
activity.
In a nutshell the rationale for criminalizing attempted suicide is based on the premise that life
is precious and it is the constitutional duty of the state to protect it. Attempted suicide is
considered a threat to the individual's life and society's well-being, and therefore, it should be
prevented by imposing legal sanctions. The supporters of this provision argue that the fear of
legal punishment acts as a deterrent and dissuades people from taking the extreme step of
ending their lives.

However, data collected from primary sources and secondary sources like newspapers do not
support this presumption that positivism in penalising deter commitment of suicide. Rather
the contrary scenario is evident from social practice as the person who once tried to take his
own life tries further to escape stigma and maltreatment from the society. In such a case the
antagonistic approach from the state end plays as a final nail in the coffin.

1
Cerel J, Brown MM, Maple M, Singleton M, van de Venne J, Moore M, Flaherty C. How Many People
Are Exposed to Suicide? Not Six. Suicide Life Threat Behav. 2019 Apr;49(2):529-534. doi:
10.1111/sltb.12450. Epub 2018 Mar 7. PMID: 29512876.
 4

Justification
The provision has been widely criticized for being irrational and insensitive towards the mental
health of individuals who attempt suicide. It has been argued that punishing an individual who
is already suffering from mental illness and is in distress is not only illogical but also
counterproductive. Such individuals need support and medical intervention, not punishment,
to overcome their problems.

Constitutionality test
Whether section 309 is constitutional or unconstitutional is a burning question among legal
practitioners and scholars. However, there lacks cases in the judiciary to develop materials and
scope of judicial activism. That is why the provision of Section 309 has not been tested in light
of the Constitution of Bangladesh. However, those who advocate the unconstitutionality of the
provision argue that it violates right to life enshrined in article 32 of the Constitution of the
People's Republic of Bangladesh. To them, right life also includes the right to not to live or the
right to die.
It is pertinent to mention reforms that has been taken in India to draw justification and
constitutionality of section 309 as both Bangladesh and India share the same Penal Code.

Reforms in India
India has brought in development and reduced the generalised ambit of section 309 of the
Penal Code, 1860 through a series of cases.

1. In State of Maharashtra V. Maruti Sripati Dubal2 the Madras High Court held section
309 of the Penal Code violating to section 21 of the Indian Constitution which is
analogous to article 32 of the Constitution of Bangladesh. The court reasoned that right
to die is enshrined in right to die as expressed in article 21.
2. In Chenna Jagdeshwar V. State of Andhra Pradesh3 the Andhra Pradesh High Court held
posited view of the Maruti case stating the right to die is not a fundamental right under
article 21. So, section 309 is not unconstitutional.
3. The contradicting issue this two High Courts has been decided in Rathinam V. Union of
India4 . In this case the Supreme Court of India upheld the decision of Madras High
Court in Maruti case and stroke down section 309. This decision of of the Supreme
Court of India gave rise to several questions of ethics and morality like This ruling will
impact the young and immature minds that tend to act or react in haste.

2
(1986) 88 Bom LR 589

3
(1988) cr LJ 549

4
(1994) 3 SCC 394
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• Right to die an unnatural death should not be included under Article 21 of the
Constitution.
• What about those people who in the disguise of protest threatens to kill
themselves if their demands are not meet, in front of government offices.
• Suicide owing to frustration in love, failure in examinations, and failure to get a
job is not a solution and should not be encouraged. This would raise many social
problems.
• Even different religions across the globe be it, Hinduism Islam, Christianity,
Jainism or Buddhism treats Suicide as a negative act.

To provide some clarity regarding the right to die and constitutionality of section 309 of the
IPC, The constitution bench of the Supreme Court in Gian Kaur V. State of Punjab5 held that
right to die under Article 21 of the constitution does not include the right to die or right to be
killed. The Supreme Court finally overruled its own decision and withdrawn embargo from
section 309 of the Penal Code.

There have been urges from NGOs and human right stakeholders to decriminalise attempt to
suicide considering its effect on society specially the accused who suffers multiple stress
inhumanity by penalising or tagging as criminal. But this has not yet been materialized.

Mental Health Act

In 2017 India has promulgated Mental Health Act. Section 115(1) of the Act generally
exempted a person who attempted to commit suicide, from the ambit of section 309 of the
Penal Code with a presumption that he did it out of severe mental stress. The section 115(2)
states that appropriate government shall have a duty to provide care, treatment, and
rehabilitation to a person having severe stress and who attempts to commit suicide, to reduce
the risk of re-occurrence of an attempt to commit suicide.

So these two sub-sections of section 115 of the Mental Healthcare Act, 2017 clearly lays down
guidelines regarding cases relating to attempt to suicide and it clearly reduces the scope of
section 309. It will be presumed that a person is suffering from severe stress if a person
attempts to commit suicide and the government should provide treatment and rehabilitation
to such persons so that this attempt to commit suicide should not occur again.

Bangladesh promulgated Mental Health Act In 2018 replacing the previous Lunacy Act but did
not insert any provision reducing over generalised section 309 of the Penal Code.

5
(1996) 2 SCC 648
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Evaluation of section 309

The all encompassing approach of section 309 regarding attempted suicide cases is bad for law
and public policy. Besides the section has no definition of suicide and what type of activities in
prejudice to oneself would be attempt to commit suicide is not mentioned in the act with
certainty. When a crime is not certain, it bigots loopholes for the enforcing agencies to exploit
the accused. In practice it is also evident that families tend to shut the case by feeding money
to the corrupted investigating officers.
Considering the loopholes and antagonistic effect upon the society it is admitted that section
309 I.e. attempt to commit suicide must be decriminalised. Because it is an irony and absurd
scenario that commission of an act is not an offence but attempt to commit the same is an
offence defined in law.

Way out

• To escape the mal effect of section 309 a bill should be raised immediately proposing
decriminalisation of section 309 and the legislature should reform the Penal Code.
• Revision of law is a must to strike down such absurd and draconian laws.
• Mental Health Act, 2018 should be expanded to include suicide attempter as mentally
stressed and provide treatment
• Like India, the law should introduce presumption of mental stress in suicide cases to
bypass section 309. However, this presumption can be subject to exception
considering circumstances.

Conclusion:
In conclusion, the provision of Section 309 of the Penal Code is based on the premise of
protecting life and deterring individuals from taking their own lives. However, it has been
criticized for being irrational, insensitive towards mental health, and violating to the
fundamental right to life. Therefore, there is a need to reconsider the provision and to provide
support and medical intervention to individuals who attempt suicide, rather than imposing
legal sanctions.