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Balancing Justice And Protection: The Underlying Need To Inculcate The Battered Woman Syndrome In The Indian Penal Code,1860

The history of women's abuse dates back to as early as the Middle age, when the abuse came in the form of well-established norms that were detrimental to women's dignity. In India, right after the Upanishad age, the status of women was declined by ill-treatment equivalent to that of Sudras. With time, deliberate steps were taken to deny women access to education and other societal privileges. Their social standing declined, and abuse became more widely accepted.

The abuse of women has become deeply embedded in the culture that of the total 4.05 lakh crimes against women registered by the national crime records bureau (N.C.R.B.) during 2019, 1.26 lakh (over 30%) were of domestic violence. However, despite various legal protections to victims, the psychological impact that such incidents leave on them remains unexamined in the country. This breeds uncertainty and obscurity, not only during the treatment of the victims but also during the litigation stage in such cases.

What Is Battered Woman Syndrome?

Battered woman syndrome ('BWS') is a psychological theory that explains why battered women continue to stay in abusive relationships and why they may be compelled to kill their partners despite other options of escape ostensibly being available to them. The term was coined in the late 1970s by Psychologist Lenore F. to explain a set of behavioural and psychological reactions displayed by women subjected to severe, long-term domestic abuse. It is often considered a subtype of Post Traumatic Stress Disorder (P.T.S.D.) in which the victim constantly faces physical assault and fears death in most cases.

According to Walker, abused women who cannot control their violent situation gradually become passive, believing that it is impossible to escape their situations even if possible ways exist. Under the influence of socio-economic factors, BWS creates a sense of powerlessness in abused women who believe that legal recourse will only worsen the situation. The sense of helplessness may lead these battered women to consider the death of the abuser to be a final and straightforward solution to their vicious cycle of violence.

Battered Woman Syndrome In The Indian Context

BWS has not been recognised as a legitimate defence under any criminal legislative framework in the country. The idea that women, who have been constantly subjected to domestic or intimate partner violence, can choose to kill the perpetrator of violence has not been given a legal shield nor the required social acceptance. However, in various instances, the Indian High Courts have recognised the condition of the battered woman at the time of the murder and thereby set aside the murder charges. The first Indian case that recognised BWS was Manju Lakra v State of Assam.

Here, the accused was a woman who bore the brunt of her alcoholic husband's violent tendencies. During one such altercation, she snatched a piece of wood in his hand and beat him to death. The Guwahati High Court recognised her plight as a 'battered woman', found no mens rea and convicted the accused for culpable homicide not amounting to murder, thus allowing the battered woman to take the Exception to Section 300 of Indian Penal Code as a defence.

In another case, Rajendran v. Tamil Nadu, the court allowed the defence of sustained provocation under the trigger for a provocation. It held that the consequent loss of self-control cannot be viewed in isolation from other acts and circumstances. The Madras High Court conceptualised 'Nallathangal Syndrome' for women coerced to commit suicide and kill their children to escape the misery of the violence they are subjected to. In the recent case of State v. Hari Prashad, the Delhi High Court convicted the accused husband for provocation, which led the wife to commit suicide.

Existing Murder Exceptions In India

There are defences available in cases of murder under the Indian penal code of 1860. While examining the defences and the requirements to avail the defences, it is learnt that these need to fit into the framework of BWS. Hence, the need to recognise it as a separate criminal defence arises.

According to I.P.C.,1860, there are two types of immunity in the cases of murder: the first category in chapter 4 includes general immunity under sections ranging from 76-106, which includes defence of necessity and private defence. The second category is a series of specific legal exceptions under section 300, which defines murder, including severe and sudden provocations that mitigate crime only in the most serious circumstances. Culpable homicide that is not murder will be punished under section 304.

Grave and sudden provocation:
The defence of grave and sudden provocation can only be pleaded if the provocation is immediate and so grave that a reasonable person might lose his 'self-control'. This is explained in Exception 1 of Section 300 of I.P.C. However, the battered woman's continuous abuse creates a whole different case of provocation.

A specific act or behaviour might not trigger retaliation. In addition, due to the feeling of isolation caused by the prolonged battering, a woman does not immediately lose self-control after being battered. The provocation is thus sustained over a considerable period. The established test of provocation in the case of K.M Nanavati v. State of Maharashtra ('nanavati') does not apply to battered women. A need arises to include an additional explanation to Exception 1 for a "sustained provocation" to represent the case of BWS rightly.

Right of private defence:
The right of private defence necessitates two components:
First, reasonable apprehension of danger would require the victim to consider it likely that the batterer(abuser) would immediately hit her. This requirement fails to consider the perpetual State or the nature of the abuse that the victim finds herself in during the cycle. However, this would not meet the standard of immediate danger required under the law. Additionally, most women fight their batterers when they are weak or when there is a break in the violence out of dread of further abuse.

The second requirement of private defence, i.e. the amount of force being proportional to the imminent harm or injury, fails to meet the situation of BWS since the defence assesses the proportionality of a response based on factors which do not reveal the mental health or State of a battered woman during the attack. In various instances, the victims were found to be attacked with dangerous weapons such as knives. In the case of Malliga v. State by the Inspector of Police, the accused dropped heavy stones on her sleeping partner.

Section 81 of the Indian Penal Code, 1860, which deals with activities likely to cause harm but carried out without criminal intent and to stop other harm to people or property, provides the defence of necessity. This defence further erects concerns that the victim always had the choice of leaving the batterer. However, it should be considered that the 'honeymoon' stage of Walker's cycle might trap the victim with the batterer. Another constraint might be threats in the form of killing or causing harm to the victim. In the Indian context, the societal constraints in the form of heteronormative sociological expectations from women force them to stay in relationships or marriages that might consume their dignity and lives.

Will Including Bws In The Indian Legislative Framework Lead To Its Unjustified And Unwarranted Use As A Defence In Murder Cases?

The criticism of using BWS as a legal defence has gained momentum ever since the debate on recognising the clinical condition of battered women started. While one section of society remains sceptical of the psychological impact of the perpetual violence inflicted on women, the other raises doubts over its misuse. However, the case concerns itself only within the litigation sphere. It would help throw some light on the psychological plight of battered women in the eyes of the jurists.

One of the many concerns in the crystallisation of this theory revolves around a situation where the victims might be labelled as mentally ill or insane even when they are not. To resolve this doubt, one must consider that BWS, while often cited as a subtype of P.T.S.D., may or may not show the mentioned symptoms.

Added to this is the fact that the battered woman is not shadowed by insanity at the time of the killing but does it only to protect herself. Another doubt is about the complete absolving of the charges of murder. However, this is not the case. The victim may not be absolved of all the charges but will only be allowed to plead relief in the quantum of the punishment. It would act only as a private defence and not a complete exoneration from the charges.

Among other concerns, one centred on its misuse concerns instances in which the sufferer may wilfully kill her husband or spouse. While the claims cannot be suspended for being redundant or unreasonable, a case-by-case examination of the seriousness may shed light on this concern.

The inclusion of BWS as a legitimate criminal defence will not put an extra burden on the existing criminal mechanism. However, it will only pave the way for better-imparting justice for the victims of perpetual violence. It will only be complementary to the existing defence framework.

What Lessons Could India Borrow From Foreign Jurisdictions Regarding The Applicability Of Bws As A Criminal Defence?

BWS entered the criminal justice system as a legal defence when Dr Walker began giving testimonies supporting the existence of such a psychological condition in criminal trials involving battered defendants. Various governments gradually began to acknowledge the impact that BWS could have on the judicial process by legalising it. While India is far from using it as a defence continually, it can learn some difficult lessons from each of the nations listed below to incorporate BWS in its criminal framework.

United States:
The United States was one of the first countries to include BWS as evidence in the form of testimony. In the case of State v Koss, the testimony of BWS was allowed for the first time. While the court admitted the syndrome only through testimony, this paved the way for its legal inclusion in the Violence Against Women Act of 1994. This gave way to the extension that BWS can be used in a trial that the courts of law would assess in the States of the U.S.A. Here India might absorb Section 40507 of V.A.W.A.,1994, into the I.P.C.,1860. The legality of BWS as:
Testimony will help the victims not only plead self-defence but also help the jurist to determine the situation that spiralled up to the death of the batterer.

United Kingdom:
The U.K. moved another step ahead by including BWS under the blanket of provocation. In its landmark case of R V. Ahluwalia ('Ahluwalia), the English court moved away from its R V.

Duffy's ('Duffy') standards of provocation required immediate provocation to plead the indigent defence successfully. In this case, it was held that the background of perpetual abuse and violence and the subsequent mental State of the victim would be considered while applying the defence of provocation. This developed into the legislative form of Section 56(2)(a) of the Coroners and Justice Act, 2009, which cut away the requirement of immediate provocation. India may include such legislative inclusion into its criminal framework, which, in its present State, fails to determine the mental State of the victim and the root of such incidents.

Australia has also managed to place BWS under the defence of provocation. In 2005, based on the Victorian Law Reform Commission's defences to homicide, the then Government amended the homicide laws in which victims of family violence will be able to put evidence of their abuse before the court as part of their defence and argue self-defence even in the absence of an immediate threat, and where the response of killing involved greater force than the threatened harm.

While bodies like the Law Commission in India failed to observe the adverse impact of long-term abuse on battered women, countries like the U.S., the U.K., Australia, and Canada made way for women to defend provocation and self-defence after killing the batterers.

What India, at this juncture, can learn from these countries is:
  1. To include the testimony of BWS in the litigation process to make the victim's plea more authorised.
  2. To place BWS under the defences available in the I.P.C.,1860.

In conclusion, the absence of recognition and inclusion of Battered Woman Syndrome (BWS) as a legitimate defence in the Indian Penal Code (I.P.C.) has created significant challenges for the criminal justice system in addressing battered women's unique circumstances. The existing murder exceptions and defences under the I.P.C. fail to adequately capture the sustained provocation, fear, and helplessness experienced by these victims, leading to a lack of coherence in the law.

While some Indian courts have acknowledged the condition of battered women in certain murder cases, these instances are inconsistent and lack a comprehensive legal framework to support the plea of BWS. The reliance on defences such as grave and sudden provocation or the right of private defence does not fully capture the complex psychological State of a battered woman who may be compelled to kill her abuser as a final and desperate measure to escape the cycle of violence.

Foreign jurisdictions, such as the United States, the United Kingdom, and Australia, have taken steps to incorporate BWS into their criminal defence frameworks. These countries have recognised the need to consider the impact of long-term abuse and the victim's mental State in cases involving battered defendants. By allowing BWS as testimony or under the defences of provocation and self-defence, these countries have provided a more coherent approach to addressing battered women's plight within their legal systems.

The lack of coherence in the Indian legal framework concerning BWS makes it increasingly difficult for victims to obtain justice. The absence of a specific provision or defence for BWS denies these women the opportunity to present their experiences and the psychological trauma they have endured. This uncertainty in the law perpetuates the obscurity surrounding the treatment of victims during both the trial and litigation stages.

In order to provide a more just and comprehensive legal framework, India must recognise and incorporate BWS as a legitimate defence within the I.P.C. This would acknowledge the psychological impact of sustained abuse and ensure that the criminal justice system is better equipped to address the specific circumstances battered women face. By doing so, India can foster a more coherent and just approach to dealing with the complexities of domestic violence and provide victims with the justice they deserve.

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