INTRODUCTION
The case of Kiranjit Ahluwalia Footnote 1 is a landmark case that sheds light on the plight of women who face constant and long-term domestic violence. Her case is one of the first in the United Kingdom to accept battered woman syndrome as reliable evidence. In the 1970s, feminist psychologist Lenore Walker (Reference Walker2016) introduced the term “battered woman syndrome”. Battered woman syndrome helps explains the psychological reactions of women who are put through severe, long-term domestic abuse by their partners (Walker Reference Walker2016:3). In most instances, the actions of the battered woman killing her husband are determined by asking the question of whether her actions were reasonable or not (Schneider Reference Schneider1980). As adopted by judges, the reasonable man’s perspective is an objective concept, open to various interpretations. This test fails to consider the circumstances of prolonged abuse suffered by women and the impact of the suffering on their psychological state (Schneider Reference Schneider1980). The emotional and physical turmoil faced by women domestically abused by their partners can be better understood through Ahluwalia’s case. On 9 May 1989, Kiranjit Ahluwalia threw gasoline on her husband and set him on fire. Footnote 2 The mental trauma and agony of constant battering made her take this drastic step. After seven months, the Crown found Ahluwalia guilty and convicted her of murder. Footnote 3 She was sentenced to life imprisonment. At a retrial in September 1992, the Court of Appeal allowed her to appeal against her murder conviction because the trial court judge had refused to admit the depression faced by her due to the constant battering. Footnote 4 The Appeals Court accepted the plea of “diminished responsibility” and convicted her of manslaughter. Footnote 5 The Court held that the mental state of the accused would be considered while deciding whether the defence of provocation would apply. Footnote 6
This article argues that the battered woman syndrome theory should be applied in the Indian setting; a new exception of “sustained provocation” should be created under §300 of the Indian Penal Code, 1860, while exception 1 to §300 should be retained. Furthermore, it is also argued that the present statutory framework be amended, and a separate exception for battered woman syndrome under §300 of the Indian Penal Code be implemented.
GENDER BIASES, ALONG WITH THE REASONABLE MAN TEST
One case that highlights the sexist treatment in the English Court is that of R. v Holford Footnote 7 in 1963. The wife taunted the accused several times for his unfaithful behaviour and sexual abilities. The constant chiding by the wife provoked the husband, and he took the drastic step of killing her. Footnote 8 Despite the husband’s extreme behaviour, the judge was keen to show mercy and condemned the wife’s actions. The Court considered the provocation sufficient, and the husband was convicted of manslaughter rather than murder (Williamson Reference Williamson2020). The judge sentenced the accused to only three years’ imprisonment. Likewise, in 1992, a wife was killed by her husband for constantly complaining. Joan Smith, a feminist writer, observes that the courts during the 1990s accepted the unacceptable behaviour of a husband and reasoned that “a man of reasonable self-control might have done what you did” (Smith Reference Smith and Smith1993). The husband killed his wife by cutting her with a saw and boiled her bones and skin. The extreme and gruesome behaviour of the husband was considered rational and justifiable as he could resort to the defence of grave and sudden provocation (Smith Reference Smith and Smith1993).
Contrastingly, when gender roles were reversed and the woman was the perpetrator, she could not avail of the defence of grave and sudden provocation. In the landmark case of R. v. Duffy, Footnote 9 the defendant killed her sleeping husband with a hammer. The Court was reluctant to accept the plea of a grave and sudden provocation as they felt that the wife’s actions were premeditated, not sudden. Footnote 10 The Court emphasized the requirement of “suddenness”, which would cause a temporary loss of self-control. Footnote 11 The judges failed to consider the long-term domestic abuse faced by the woman and instead emphasized the provocation to be sudden, which causes a loss of self-control. Thus, it can be inferred that the reasonable man test adopted by the courts in the United Kingdom was male-centric and failed to cater to the gruesome experiences of domestic abuse faced by women.
BATTERED WOMAN SYNDROME IN INDIAN LAW
The law in England failed to consider the battered woman’s mental agony and the prior abuse she faced. However, while formulating the battered woman syndrome as a defence in the Indian situation, it is not only essential to comprehend the social setting in which domestic abuse is undertaken in India but also the prior abuse faced by battered women. Socialization has profoundly influenced the social setting, where women are instructed to be submissive and obedient and not fight back against the abuser (Nigam Reference Nigam2016). This sentiment informs judges’ decisions when they scrutinize the reasonability of a woman’s actions.
Under the Indian Penal Code for the defence of murder, two exceptions are available. Firstly, as laid down in §76 to §106, General Exceptions consist of defences such as necessity and personal defence (Vibhute Reference Vibhute2012). The second exception is the Statutory one in §300, which defines murder. These exceptions, which incorporate grave and sudden provocation, would relieve culpability from the more rigid offence of murder to that of culpable homicide not amounting to murder, which is actionable under §299 (Vibhute Reference Vibhute2012).
GRAVE AND SUDDEN PROVOCATION
The first exception to §300 is the grave and sudden provocation defence. To avail herself of this defence, the woman must kill her husband “while being deprived of the power of self-control by grave and sudden provocation”. Footnote 12 Reasonableness of the conduct of the accused and casualties at and around the occurrence of the offence assume a significant part in deciding the accountability of the accused and the quantum of retribution (Kumari Reference Kumari, Dhanda and Parashar1999). Contingent upon the judges, perception of an act being reasonable or unreasonable, the accused may be charged with murder or culpable homicide not amounting to murder. Further, the misogynistic attitude of Indian judges and the influence of socio-normative ideas, including gender roles, inform their decisions (Kumari Reference Kumari, Dhanda and Parashar1999). Most Indian cases, such as K. M. Nanavati v. State of Maharashtra, Footnote 13 have supported the objective test of provocation, which states that the Court must look at whether the reasonable man, when placed in the position of the accused, would have been incited into killing the sufferer. Footnote 14 Another important aspect of the doctrine is the “cooling-off” period. The Supreme Court in Khunte v. Union of India and Others Footnote 15 held that the provocation should be immediate, and the offence should follow directly after. Further, the Court held that if adequate time had passed between the provocation and the occurrence of the offence, the defence of grave and sudden provocation would not apply as the accused would have adequate time to regain self-control. Footnote 16
The battered woman syndrome must be applied except for grave and sudden provocation. The current law states that the provocation must be sudden and grave for availing of this exception. Further, the provocation must result in the loss of control which causes the defendant to kill the plaintiff, and the killing must be committed immediately after the provocation. Several Indian judgments like that of Nanavati v. State of Maharashtra Footnote 17 explain that the defendant’s failure to act immediately after being provoked would be considered premeditation (Kumari Reference Kumari, Dhanda and Parashar1999).
As demanded by the law, the requisite of sudden provocation would be unfair for battered women as provocation works very differently for them. Generally, it is impossible to point to a certain triggering event that leads to loss of self-control as the battering is continuous and long term (Donovan Reference O’Donovan1991). Especially, the feeling of desolation induced by prolonged battering does not cause the woman to lose self-control immediately. Thus, in the case of battered women, the provocation is sustained over a substantial period of time (Donovan Reference O’Donovan1991). This justifies that the exception of “sustained provocation” be created under §300 of the Indian Penal Code, 1860, as battered women face a gradual and “slow-burn” nature of provocation (Young Reference Young1993). It can also be argued that the exception of sustained provocation would aid the accused, such as Nanavati, Footnote 18 who would end up walking free if not for the reasonable man test. Thus, it is proposed that a new exception of “sustained provocation” be created while retaining the existing exception of “grave and sudden provocation”. Further, the exception of “sustained provocation” would only be applicable after looking at the psychological state of the victim and the long-term abuse faced so that an accused such as Nanavati cannot take recourse under the exception.
BATTERED WOMAN SYNDROME IN THE INDIAN CONTEXT
Before proposing changes to the existing laws, it is imperative to analyse the interpretation of the battered woman syndrome in the Indian context.
Drawing inspiration from the battered woman syndrome development in the United States, women activists (feminists) brought about the first wave of the feminist movement in India in the 1970s, which is also known as the Anti-Dowry Movement. Before the 1970s, the laws related to domestic abuse were inadequate and ill-formed (Deb Reference Deb2018), thus posing a significant challenge to getting justice for domestically abused women. Intense pressure by various feminist groups in the Court led to the amendment of the Indian Penal Code in the 1980s. Acts of extreme cruelty to women, compelling them to commit suicide or causing grave injury, were penalized under §498A. Causing the death of a woman for demanding dowry was penalized under §304B (Deb Reference Deb2018). The shortcoming of the Anti-Dowry Movement was that it only addressed the issue of abuse meted out to a wife for dowry demands. Because of these restrictions, culprits of abusive behaviour at home, irrelevant to dowry requests, got away from arraignment, adding to an unavoidable cultural disposition lenient toward different types of brutality against women (Deb Reference Deb2018). The second phase of the feminist movement led to the creation of the Domestic Violence Act, 2005, which protected women from abuse within their homes irrespective of their marital status (Jaising Reference Jaising2002:73). In India, the general perception is that the sacredness of everyday life pervades the universe of law implementation. Accordingly, the detention of the abuser is seen as a final resort in cases related to domestic violence (Deb Reference Deb2018). It is only in outrageous conditions that a woman may contemplate ending the domestic violence she is facing by taking the extreme step of killing the abuser (husband) (Deb Reference Deb2018).
BATTERED WOMAN SYNDROME IN INDIAN COURTS
India has only recently recognized battered woman syndrome, unlike other countries, and hence there is limited research on the permissibility of battered woman syndrome in the Indian setting. Nevertheless, in 1989 the Madras High Court advanced the concept of “Nallathangal’s syndrome” in Suyambukkani v. State of Tamil Nadu. Footnote 19 It is considered a predecessor of battered woman syndrome. In this case, the constant domestic abuse at the hands of her husband compelled the woman to commit suicide by jumping into a nearby well Footnote 20 with her children. She survived, but her children died as a result. She was charged with murder and convicted. On appeal, her lawyer, N. T. Vanamamalai argued that the actions of the accused did not constitute murder and that she was a victim of circumstances. He pointed out how frequently these situations occur in India, with the mother believing that her duty to care for the children means that she cannot die and leave them behind. He reminded the Court that in Tamil, there is the Nallathangal ballad,
narrating in a heart-gripping manner the tribulations of a rich lady reduced to unbearable misery who committed suicide with her seven children… The ballad has created … an imitative propensity among the womenfolk, and the Nallathangal syndrome is still largely prevalent… Usually, the unfortunate mother succeeds fully … and the matter does not reach the Court. Here is a rare case where we have to determine the nature of the offence committed by the mother surviving against her will.Footnote 21
By agreeing to apply Nallathangal’s syndrome, the Court held her liable for culpable homicide not amounting to murder. It also opined that Nallathangal’s syndrome could be considered an exception to §300 of the Indian Penal Code. Footnote 22 However, in 2010 when the first research on battered woman syndrome was undertaken in India, analysers did not highlight the existence of Nallathangal’s syndrome. They emphasized that battered women could not avail of any legal defences under the Indian Penal Code in India.
Battered woman syndrome was recognized for the first time in India by the High Court of Gauhati in Manju Lakra v. State of Assam. Footnote 23 The wife suffered extreme physical and mental abuse at the hands of her husband. Incapable of handling the abuse, she snatched the wooden piece from her drunk husband’s hand and stabbed him to death. Footnote 24 The Court itself referred to battered woman syndrome and convicted the wife of culpable homicide, not amounting to murder. The High Court referred to the case of R. v. Ahluwalia Footnote 25 and explained the justification of the wife’s actions against her husband, the abuser. The High Court stated:
Though she had been controlling and suppressing the rage and the resentment, which had been building up inside her, her rage and resentment were waiting to erupt at any further violent conduct of her husband. The accused-appellant had been, thus, sitting on a volcano of resentment and rage, which had been continuously building up and boiling inside, waiting to burst open, and even a small flicker of any other intolerable behaviour of her husband could have made the volcano erupt, and that is precisely what happened on the fateful evening, when her husband, having come home in a drunken state, as usually he did, started beating her up. The provocation, which the conduct of the accused-appellant’s husband so provided to the accused-appellant, was not only grave but can be perceived as sudden, too. Footnote 26
The Court felt that the said case would fall under the first exception of §300. Thus, the wife was charged with culpable homicide, not amounting to murder. Footnote 27
Lastly, the Madras High Court recognized the battered woman syndrome in Amutha v. State. Footnote 28 The Court in Amutha v. State Footnote 29 held that the continuous abuse meted out to the wife caused a loss of self-control which caused her to take the extreme step of killing herself and her daughters. Justifying the victim’s steps, the Court reasoned that the victim’s decision was taken to put an end to the violence faced by her at the hands of her husband. Footnote 30 Analysis of the above cases highlights that the courts did not allow expert testimony on battered woman syndrome. In this way, the acknowledgement of battered woman syndrome just through legal caution leaves open the chance of conviction for women who kill their victimizers in such conditions. Besides, since there have been just three situations where battered woman syndrome has been perceived up to this point, the courts have been compelled to allude to a global point of reference to oblige the instance of a battered woman within the available defences (Deb Reference Deb2018). Hence, it is recommended that the present statutory framework be amended.
CHANGING THE LAW
The exception of “sustained provocation” should be created under §300, and the present law needs to be amended. Before considering changes to the present law, it is imperative to analyse the UK Coroners and Justice Act, 2009, which includes elements related to the exception of battered woman syndrome. The trigger of “fear of violence” Footnote 31 under the Act acknowledges the repetitive nature of battering violence and considers the danger of battering faced by a woman (Law Commission of the United Kingdom 2005). Footnote 32 Other provisions include the deletion of sexual infidelity and suddenness, which reduces the male-centric nature of the provision. Footnote 33
It is proposed here that a new exception to §300 be created, which includes the concept of battered woman syndrome that can be availed by battered victims only. The new exception would include the following explanation:
For the purpose of this exception, when the accused is suffering from continuous physical and psychological abuse, the provocation would be considered as the entire period of abuse suffered by the accused. The provocation need not be sudden but sustained.
The amendment would incorporate the “sustained provocation” rule and apply only to battered victims.
CONCLUSION
The primary aim of this paper is to make a case for battered women such as Kiranjit Ahluwalia, Footnote 34 who are often wronged by the male-centric laws and misogynistic attitude of the Indian judges presiding over lawsuits related to battered woman syndrome. Including battered woman syndrome under the Indian Penal Code would help mitigate the unjust liability imposed upon battered women. Battered woman syndrome helps explain the psychological state of battered women who face long-term domestic abuse and why such women face a slow-burn reaction when provoked. Including battered woman syndrome would also help explain to the judges the emotional state of battered women.
Nonetheless, lower courts in the past have been unwilling to entertain the defence of battered woman syndrome and have imposed harsh punishments on battered women. The creation of “sustained provocation” under §300 and amendment of the Indian Penal Code by including battered woman syndrome as a valid defence would be sufficient to reduce the charge of murder to culpable homicide not amounting to murder or manslaughter.
Acknowledgements
Although many individuals deserve to be thanked, the author would like to mention and express his gratitude to his teachers, family and friends for reviewing several drafts and providing patient support during the entire process. He is also thankful to the editorial team of the International Annals of Criminology for their constant guidance.
Dhruv Mehta is a second-year law student pursuing his BBA LLB dual degree from Jindal Global Law School, India. He is an avid sports enthusiast and has represented his school in football at the district level. Furthermore, he has completed his Trinity College London Speech and Drama course up to Grade 5. Dhruv has a keen interest in topics such as criminal law, contract law, constitutional law and human rights law. He has interned with some of the finest senior advocates in India and, after his graduation, aspires to pursue an LLM from Cambridge. He is passionate about environmental law and believes that lawyers play a pivotal role in enforcing laws to combat climate change.
