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Report No. 42

16.31. Section 30.-suicide in the Dharma Shastras.-

Section 309 penalises an attempt to commit suicide. It may be mentioned that suicide was regarded as permissible in some circumstances in ancient India. In the Chapter on "The hermit in the forest", Manu's Code1 says.-

"31. Or let him walk, fully determined and going straight on, in a north-easterly direction, subsisting on water and air, until his body sinks to rest.

32.A Brahmana having got rid of his body by one of those modes (i.e. drowning, precipitating burning or starving) practised by the great sages, is exalted in the world of Brahamana, free from sorrow and fear".

Two commentators on Manu, 2Govamdhana and Kulluka, say that a man may undertake the mahaprasthana (great departure) on a journey which ends in death, when he is incurably diseased or meets with a great misfortune, and that, because it is taught in the Sastras, it is not opposed to the Vedic rules which forbid suicide.3 To this Max Muller adds a note as follows.-4

"From the parallel passage of Apas tambha II, 23, 2, it is, however, evident that a voluntary death by starvation was considered the befitting conclusion of a hermit's life. The antiquity and general prevalence of the practice may be inferred from the fact that the Jaina ascetics, too, consider it particularly meritorious."

1. Laws of Manu, translated by George Buhler Sacred Books of the East, edited by F. Max Muller, (1967 Reprint), Vol. 25, p. 204, Shlokas 31 and 32.

2. See Medhatithi's commentary on Manu.

3. Laws of Manu, translated by George Bulger Sacred Books of the East, edited by F. Max Muller, (1967), Vol. 25, p. 204, footnote 31.

4. Ibid.

16.32. Should attempts to commit suicide be punishable.-

Looking at the offence of attempting to commit suicide, it has been observed by an English Writer:1

"It seems a monstrous procedure to inflict further suffering on even a single individual who has already found life so unbearable, his chances of happiness so slender, that he has been willing to face pain and death in order to cease living. That those for whom life is altogether bitter should be subjected to further bitterness and degradation seems perverse legislation."

Acting on the view that such persons deserve the active sympathy of society and not condemnation or punishment, the British Parliament enacted the Suicide Act in 1961 whereby attempt to commit suicide ceased to be an offence.

1. H. Romilly Fedden Suicide (London, 1938), p. 42.

16.33. Section 309 to be repealed.-

We included in our Questionnaire the question whether attempt to commit suicide should be punishable at all. Opinion was more or less equally divided. We are, however, definitely of the view that the penal provision is harsh and unjustifiable and it should be repealed.

16.34. Inducing suicide by ill-treatment.-

Among the diverse reasons which lead a person to seek the ultimate refuge in death, one that occasionally comes to light and shocks society is continuous cruel treatment. The Suicide Inquiry Committee set up by the State Government of Gujarat reported in 1964 that systematic ill treatment of a young woman by her husband and/or in-laws leading to her committing suicide was, allegedly at any rate, not uncommon, in that State. Such cruel conduct deserves to be punished as criminal.

The provisions as to abetment of suicide may not be applicable to such conduct because the series of acts constituting ill-treatment may not be regarded as 'instigation' or 'intentional aid'. The need for a separate provision on the subject was felt during our preliminary examination of the Code, and we included in our Questionnaire the question, "should there be a provision in the Code for punishing a person who drives another person by systematic cruel treatment to commit suicide."

Most of the replies to this question were opposed to any provision for punishing such acts. Even in Gujarat which for some time had a high female suicide figure, Judges of the High Court and lawyers were generally not in favour of the suggestion, but some of the Sessions Judges were. Some Judges of a High Court have suggested making penal an omission to report promptly to the authorities an unnatural death caused by persistent ill-treatment. But we do not think that this will be enforceable in practice and in any way effective.

The main grounds on which the suggestion was opposed were that it would be difficult to detect and prosecute the offenders, that proof of casual connection would not be easy, and, therefore, prosecutions would not succeed, and that a person could be punished for his own cruelty, but not for another's suicide, even though it was provoked by his cruelty.

While we appreciate the relevance of the first two objections, we are nevertheless of the opinion that where such cases do come to light, the law should not overlook them. Difficulties of proof not withstanding, there is justification for expressing strongly the law's condemnation of such conduct, which tantamounts to homicide caused indirectly through the hands of the luckless victim herself. It has been observed by some Judges of a City Civil Court that there are clear cases where the victim appeared to have committed suicide only because life became unbearable and in order to escape persistent cruelty. There are cases where there is no proof of any overt acts on the part of the offender, but still the circumstances clearly establish that the victim was driven to commit suicide to escape the mental torture and agony. It was observed by Dua J. (as he then was of the Punjab High Court),.-

"Women in such circumstances as those of the appellant, in our society, normally submit themselves to their fate and bear ill-treatment at the hands of their husbands, and unless a climax is reached, they usually do not take the desperate step of going to a police station to lodge a report; the poor financial condition of such women and lack of proper understanding on their part would also stand in their way of securing a proper medical certificate. Besides, even if the injuries on the person of Smt. Kaushalya are considered not to be so serious as to call for their treatment by a medical practitioner, if she has actually been ill-treated as deposed by her, that treatment must be held to amount to cruelty according to the standards of all civilised societies.

The approach of the court below appears to me to be inconsistent with the public policy clearly discernible in the recent legislative measures whereby attempts have been made to raise the social status of woman in this Republic. New rules of social behaviour and conduct in respect of the status of women in Indian society of today must in my view, be recognised and kept in the forefront while determining what would really amount to cruelty under the Hindu Marriage Act."

1. Kaushalya v. Wisakhi Ram, AIR 1961 Punj 521 (524).

16.35. New section recommended.-

We are strongly of the opinion that this type of cruel conduct towards a member of the family ought not to go unpunished for want of a suitable provision in the Penal Code. We, therefore, recommend that the following section should be inserted after section 308 of the Code1.-

"309. Whoever, by persistent acts of cruelty, drives a member of his family living with him to commit suicide shall be punished with imprisonment of either description for a term which may extent to three years, and shall also be liable to fine."

1. Cf. Article 107 of the R.S.F.S.R. Penal Code which is a more general provision reading.-

"Inciting a person economically or otherwise dependent on the guilty person to commit suicide or to attempt suicide, by cruel treatment of the victim or systematic lowering of his personal dignity, shall be punished by deprivation of freedom for a term not exceeding five years."

16.36. Sections 310 and 311 to be omitted.-

Sections 310 and 311 relate to "thugs". These are obsolete, and may be omitted.

Causing of miscarriage and injuries to unborn children

16.37. Sections 312 and 31.-abortion.-

Culpable homicide is causing the death of a human being. The offence would not be committed by an act which destroyed a life before it had separate existence from the mother. This gap is filled up in the Code by five sections,1 312 to 316, dealing with abortion. The main offence is described in section 312 as voluntarily causing a woman with child to miscarry. It is only when the miscarriage is caused in good faith for the purpose of saving the life of the woman it is not punishable.

1. Section 315 punishes acts done with intent to cause an infant to die after birth, as well as acts done with intent to prevent an infant being born alive.

16.38. The Medical Termination of Pregnancy Bill pending in the Rajya Sabha.-

The movement for the reform of the law of abortion, which has been going on outside India for the last thirty years, has found official support in India. Some time ago, the Government of India appointed a Committee to study the subject, and in the light of its recommendations,1 introduced i Bill2 in the Rajya Sabha. Its provisions may be summarised.-

(1) A registered medical practitioner shall not be guilty of an offence under the Code or under any other law if a pregnancy is terminated by him in accordance with the provisions of the Bill.

(2) A registered medical practitioner can terminate a pregnancy if he is of opinion, formed in good faith, that

(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of injury to her physical or mental health, or

(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

Where the pregnancy is alleged by the woman to have been caused by rape, "the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman."

(4) Where a pregnancy occurs as a result of failure of any device used by any married woman or her husband for the purpose of limiting the number of children, "the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman."

In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned above, account may be taken of the pregnant woman's "actual or reasonably foreseeable environment".

(6) If the length of the pregnancy does not exceed twelve weeks, the opinion of one registered medical practitioner is sufficient. If it exceeds twelve weeks, but does not exceed twenty weeks, the opinion of two medical practitioners is required. If it exceeds twenty weeks, the Bill does not apply.

(7) The termination of pregnancy must be with the consent of the woman.

(8) The operation is to be performed only at a Government hospital or other place approved by the Government.

The Statement of Objects and Reasons annexed to the Bill, first emphasises that (i) this very strict law has been observed in the breach in a very large number of cases all over the country; (ii) most of these mothers are married women, under no particular reason to conceal their pregnancy; and (iii) doctors have often been confronted with gravely ill or dying pregnant women "whose pregnant uterus have been tampered with." It then sums up the evil by stating that "there is, thus, avoidable wastage of the mother's health, strength and sometimes life".

It is then stated that the proposed measure, seeking to liberalise existing provisions, has been conceived (i) as a health measure, when there is danger to the life or risk to physical or mental health of the woman; (ii) as a humanitarian measure, when pregnancy arises from a sex crime; and (iii) as an eugenic measure where there is substantial risk that the child, if born, would suffer from deformities and diseases.

1. Report of the Committee to study Legislation of Abortion, (1966).

2. The Medical Termination of Pregnancy Bill (Rajya Sabha) (1969).

16.40. Position in England.-

In this context, a scrutiny of the development of the law in other countries will be helpful. In England, abortion was not a common law offence, but was made an offence by statute. Until 1967, the statute law in England was very strict. There was no express immunity, not even for an act done to save the woman's life.1 In the celebrated case of Dr. Bourne, a Harley Street specialist aborted a sixteen-year old girl who had become pregnant following rape.

He reported his action to the police and successfully defended himself at his trial by claiming that the operation was, in his opinion necessary to the future health of the girl. His acquittal seems to have been based mainly on the view taken by the jury that the probable consequence of the continuance of the pregnancy would be to make the patient a physical and mental wreck and that consequently the operation was performed in good faith for preserving the life of the gir1.2

But a substantial section of the public took the view that the immunity should be widened in its scope. The births of tragically deformed children as a result of mothers having taken thalidomide drug prior to the births had certainly contributed to this view. The Abortion Act was passed in 1967 by the British Parliament. The operative provision of this Act is as follows.-

"1. (1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner, if two registered medical practitioners are of the opinion formed in good faith.-

(a) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical and mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated; or

(b) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.

(2) In determining whether the continuance of a pregnancy would involve such risk as is mentioned in paragraph (a) of sub-section (1), account may be taken of the pregnant woman's actual or reasonably foreseeable environment."

It will be noticed that in the English Act, risk to the life, or of injury to the health, of, the woman is not by itself conclusive: it must be greater than if the pregnancy were terminated. Secondly, there is no presumption relating to anguish caused by an unwanted pregnancy, though the Act mentions injury to the existing children of the woman's family. At some stage, there was a proposal to take into account the fact that "the pregnant woman's capacity as a mother will be severely overstrained by the care of a child or of another child as the case may be". But the provision does not find a place in the Act.3

1. Section 58, Offences Against the Person Act, 1861 (English).

2.R. v. Bourne, (1938) 3 All ER 615.

3.(1966 May) 274 House of Lords Debates, 1201.

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