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Why Defenses For Battered Women Have Limited Approach?

This article seeks to critically investigate the judicial reasoning behind the social upheaval faced by women in the backdrop of domestic violence. Examining the case laws of the past will indicate that the path to justice is not always a linear graph of greater equality and liberty, but rather an intricate tale of ups and downs. Going deeper into the judgements will demonstrate the influence of majority male groups.

Exploring the defence of grave and sudden provocation through the lens of parity will unveil how biased the regulations are. A discussion of the circumstances that were neglected in order to invalidate women's agency and their defence of provocation will prove the malesness of law.

Ancient Indian legal philosophy derisively looks at the law of nature called matsya-nyaya, or "justice in the world of fish," in which a large fish swallows the smaller fish. The concept is built on the premise of "might is right" which must be abandoned in the pursuit of justice. The key idea is that achieving justice requires not only assessing institutions and regulations, but also judging society.[1]. In the early twentieth century, niti (moral rules) were substituted by state intervention to curb the influence of "law of the fish'' in any kind of social regulation.

The element of patriarchy in the formulation and execution of Indian Penal Code exemplifies a modern-era paradox. According to the IPC gender is defined as "the pronoun "he" and its derivatives." It becomes unusual for people to grasp that the terms "woman" and "she" encompass "man" and "he" rather than the other way around.

The purpose of this essay is to discuss how criminal law has made men its major focus when it comes to developing, defining, and interpreting offences meant to protect women. While the laws seek to provide social fairness and accountability they continue to reflect ingrained gendered notions.

There have been countless cases where culpability has been pushed to the woman despite the fact that she was the subject of harassment by her in-laws' family. In Emperor v. Mt. Dhirajia (AIR 1940), the defendant's wife allegedly jumped or fell into a well when she noticed her husband was following her trail. Her sister-in-law and husband had mistreated her, and she was forbidden from visiting her natal family. The end result was the death of her baby.

Judges recognised that while she had no intention to kill the child, her state of mind was of panic which constitutes an excuse and she was found guilty of culpable homicide[2] not amounting to murder. The facts of Gyarsibai v. The State (AIR 1953) is identical, involving a distressed woman plunging into a well with her three children. While Dhirajia was in a state of panic no one was on the hunt for Gyarsibai. As a result she was found to be at fault and convicted for murder[3] and attempt to commit suicide.

According to the slow burn theory, women who have been subjected to prolonged violence over an extended period of time may develop a strong violent streak.[4] When this happens, battered women gradually become more angry and helpless until they reach a state of learned helplessness. [5] The domestic abuse Gyarsibai experienced was normalised by the court through the reasoning of "as is the want of the husband to beat up the wife." Nowhere was the contribution of the conjugal family or the spouse accounted for, which was the primary catalyst pushing a lady to take such extreme steps.

Does the reasoning seem conclusive to the concept of nyaya? The right to equality before the law is not fully enforceable since many personal laws impede equality for women. Most of the time, a woman's role is dictated by cultural and religious mores, which are difficult to transform thanks to entrenched biases. What options did married women who had experienced long-term domestic abuse have in 1953?

Women, as a marginalised social group, experienced economic and social instability. Caste and class linkages that shaped land ownership were also biased against women. Women's domestic and reproductive labour has always been devalued[6]. The further challenge in North India is that the kinship structure involves village exogamy paired with patrilocal residency, such that most villages have a population of families continuing in the male line which become dominant[7].

On top of that, a woman after marriage loses her right to reside at her parent's home. Gyarsibai was most likely illiterate and had nowhere to travel, reside, or earn. Is this what drove her to send her children to the gallows? Social practises and legal frameworks hold that a woman is the primary care-giver for her children. Who could she have trusted if she was contemplating suicide?

When the gender roles are reversed, the same pattern is not observed. In numerous situations, courts have prioritised long-term history when judging men's state of mind. In K. M. Nanavati v. State of Maharashtra (AIR 1962), the appeal upheld the issue of an alleged murder by the furious husband of his wife's paramour.

The court did not examine whether the person who provided the provocation (wife's confession of adultery or her paramour's use of foul language?) was murdered or not since an exception to the provocation clause is not invoked in the first place. The reasoning of the judgement was based on the 3 hour delay between the act of confession and killing which accounted for premeditation.

While a detailed conversation regarding Nanavati's state of mind is lacking, throughout the proceeding a number of instances were cited where benefit of historical background was given to determine a man's state of mind.[8] In the case of Boya Monegaru the judges upheld the plea of grave and sudden provocation when he observed the deceased (with whom his wife had cohabited) eating with his wife. Likewise in the case of C. Narayan, the accused, a young man with a persistent concern about his wife's behaviour, strangled her to death after she admitted to having an illicit affair with another man and became pregnant as a consequence. The court ruled that the case was protected by the exception of grave and sudden provocation.

The test of 'grave' and sudden' provocation was laid down in the Nanavati judgement. First, consider if a reasonable man from the same social class as the accused, placed in a similar position, would lose self-control. Second, provocation can be created by both words and gestures. Third, if the victim's mental condition, as indicated by earlier behaviour, justifies the inference of causing grave and sudden provocation.

Finally, the provocation must be of such a character that there is no opportunity for premeditation or reflection, and the conduct must be purely motivated by the accused's passion of the moment.[9] This shows that the court recognised the victimhood of men when they turned into offenders; however a similar discourse does not occur when a battered woman is tried for murder.

Double Standard And Its Reasons?

The idea of "reasonable man" is the result of English judicial creativity. "He" has been used as the yardstick to measure deviance and delinquency. The existence of the Reasonable Man however awakens us to the possibility of the Reasonable Woman. This proposition is in sharp contrast to the Victorian middle-class of women being "the angel in the house," who kept the family safe.

Such a nuanced approach didn't exist because judges followed the societal norms as per which male experiences were by default the rule.[10] This double standard was regularly observed in decision-making during the early years of Indian judiciary. Katherine Donovan argues that the core of the contradiction is that laws are formulated by judges and politicians who are mostly of one gender and have limited experiences.

Judges could sympathise with men's agony over a long history of infidelity, but not to women's despair because striking wives was deemed "normal," while wives being "adulterous" or "reactive" was not.[11] An analysis suggests it was not an intentional prejudice on part of the judges, but their training, education, sensitivity, and exposure that led to them misinterpreting and failing to relate to the experiences of "the other." However, given the judges' position of responsibility, the inherent prejudice is a failure on their part.

Stages Of Violence

While analysing legislative provisions meant to protect victims of homicide it is vital to acknowledge that the conditions in which men confront danger differ substantially from those in which women face danger. Men are not subjected to continual but sudden violence. While the vast majority of male killings occur outside the house, the most unsafe area for women is home. In 2021, approximately 56% of all female homicide victims were killed by intimate partners or other family members. Only around 11% of total male homicide victims were killed by intimate partners or other family members.[12]

When invoking the right of private defence, the element of proportionality and apprehension of danger is critical. However, in the personal realm, women experience violence that begins abruptly but quickly becomes a routine. Most women who have suffered intimate partner violence have gone through three stages of cyclical violence:
  1. firstly tension-building coupled with a mounting sense of risk
  2. secondly escalation of battering to highly destructive levels
  3. thirdly batterer expresses regret and contrition for his conduct, promising that the battering will cease.
This sympathetic contrition serves as a justification for remaining with the batterer. The cycle then begins again, with the magnitude and severity of violence growing with each passing day.[13]

The application of men's experiences as a criteria to judge whether or not a woman reacted fairly is partial. There seems to be a pattern in cases of abused women who commit homicide. Before striking, the woman waits till the batterer is drunk or lying in bed. This is in stark contrast to the situation necessary to avail the plea of private defence (an immediate response and imminent danger). Her innate sense of self-preservation warns her that the only time she can strike back is while he is quiet, and that waiting period is dubbed as "premeditation" for "revenge" in court. The concept of force proportional to the violence is based on the assumption that people are about equal in strength and hostility. A woman using a firearm in reaction to a punch or a slap does not meet the proportionality requirement.

Physical force is not a viable option for a woman who is smaller and lighter in weight than her abuser.[14] Analysing cases of battered women demonstrates how exceptions under private defence and grave and sudden provocation are penned in a gender neutral manner, but women do not benefit from them since they do not confront identical circumstances in which such defences might be utilised.[15] These are questions the law does not address to protect a woman from violence.

In the English case of R. v. Ahluwalia, Kiranjeet Ahluwalia splashed petrol on her husband after he had gone to bed and lit him on fire. Though the lower court found her guilty of murder, medical investigations were submitted to demonstrate that she was not completely in control of her mind, and the conviction was lowered to manslaughter based on diminished responsibility (an abnormality of mind that significantly diminished her accountability for her actions).[16]

Donovan challenges the notion that when a woman explodes in the face of long-term abuse, she is not acting unreasonably. However, the law has labelled this state of mind as a medical ailment rather than a natural human condition. She is not considered fit to be a legal subject responsible for her actions.

In India gender-neutral legislation disregards the fact that the majority do not become so enraged that they kill. According to case studies and societal research, women seldom resort to violence in response to their husband's infidelity. How can the male-centric law measure the actions of one ordinary woman, pushed to the extremes, who kills her husband's paramour? On one level, we may argue that it is gender neutral and apply the defences.

On the other hand, there's a dilemma as to how we can judge a woman's reasonable conduct. While men, women, and third genders react differently[17] anyone who falls into the straitjacket reactions of males will benefit from the exception of "whilst deprived of the power of self-control." Should we, however, promote such aggressive behaviour? When men's exceptional behaviour is portrayed by legislation as a human failing one needs to ask is it a human failing or a male failing?

According to studies, women are unable to regulate their reactions as a result of cumulative violence and rage builds up, which is also a human failing. Shouldn't there have been a defence for that behaviour as well? There is no exemption for a woman who kills as a result of accumulating anger over time. To acquire that exemption, she must behave like a man. In case she behaves like a woman too she must get a medical report. Ordinary reactions by women are seen as psychiatric disorders, yet losing one's temper abruptly is regarded as a human failing.[18]

Who Are The Killers And Why?

Men are the majority of killers and victims as a result of cultural and societal standards that exalt violent masculinity and gender stereotypes. In comparison to males, females rarely kill. Even when attackers have no explicit (misogynistic) objectives, there is often a chain of (intimate partner) violence that ends in the death of women (femicide).

Men and women appear to have evolved specialised forms of caring that manifest in distinct contexts (small groups vs. larger groups) and types of provisions (emotional care/comforting vs. chivalrous/risky). According to the Ministry of Statistics and Programme Implementation Time Use Survey (2019), males spend 97 minutes per day on unpaid domestic activities for household members, while women spend 299 minutes. Women spent 134 minutes per day on average on unpaid caregiving services for household members, while males spent 76 minutes.

Such differences reflect cultural norms, societal expectations, patriarchal bent of mind as well as distinct personality traits.[19] One such trait is associating masculinity with independence and competitiveness and femininity with care and concern. According to women's personal testimonies, the notion of leaving without her children is horrifying, and they also share an emotional link with the abuser. That is another reason why women continue to stay in abusive relationships[20].

The viewpoint that the law represents is a demonstration of power or powerlessness. 'Critical legal theory' investigates how critical thinking undermines what is assumed to be the natural order of things. It discovers that the affluent and powerful utilise the law as a tool of oppression to retain their position in the hierarchy. Far from reflecting rationality, the law adheres to the interests of the law-makers.[21] Rousseau proposed the social contract theory as per which human authority is established by agreement with their subjects to perform specific duties, and the state was founded to provide more stability, law, and order.

While he famously said law is the expression of the "general will", "general" included only a restricted majority (men). Slaves and women were not included in the formation of a state. The social contract idea, in particular, aimed to legitimise control and the boundaries that it should have in relation to man's moral nature. This vantage point also explains why laws exist that safeguard the interests of the powerful even when they are intended to benefit the weak.

According to the Association of Democratic Reforms' analysis of 763 Lok Sabha and Rajya Sabha MPs, 306 had criminal charges (40%) and 194 (25%) had serious criminal cases outstanding against them when they filed their affidavits. There are at least 21 MPs who had ongoing accusations of participation in crimes against women, four of which were rape, at the time of their election.[22]

The problematic ways of defining standards to constitute crime and punishment expresses the idea of maleness of law. Law has been less inclined to confront policies that are impartial in appearance but discriminatory in actuality. In conclusion, laws protect males and negatively impact women[23]. While male and female are the accepted categories of gender identities, society is resistant towards embracing the transgender community. The specially-abled people have endured discrimination and exclusion resulting from the apathy of the able-bodied.

The reality of being born differently is termed as "undesired differentness" which are distant from the socially established norm of "normality."[24] Because one cannot see well at night, lights are installed. Because one cannot fly, stairs are constructed. These are not considered unique measures for people with disabilities, but rather ordinary human situations. As a consequence, we define and constrain what is "normal." What is deemed normal are norms of higher class / education / power / resources.

Hence it is critical to think about society's most obvious and conspicuous aspects.[25] Good practices include ensuring that the judicial seat is openly advertised and that candidates from different backgrounds are invited to apply. Laws must be built from the perspectives of its many stakeholders.


  1. Sen Amartya, The Idea of Justice, Belknap, pp. 20-24
  2. The unfortunate woman has already been in prison for a period of eight months and we think the proper sentence is that she should be sentenced to undergo six months' rigorous imprisonment
  3. The judges acknowledged that she had not become legally insane, but her mental condition was not normal when she plunged into a well with her children. They believe that this case does not warrant a harsh punishment and petitioned the government to reduce her sentence to three years of rigorous imprisonment.
  4. L. Walker, The Battered Woman, Harper, New York, 1979
  5. Martin E.P. Seligman, Learned Helplessness, 23 Annual Review of Medicine, 407-412, 407 (1972). This is the result of an experiment in which they placed a mouse encircled by an electric wire. The rodent attempts to run away and discovers they cannot escape the electric line. After some time, the experimenters will cut the electric cable. The animal will not cross the boundary since it has learned that it is helpless.
  6. Chhibber, Bharti. "Women's Rights Are Human Rights." World Affairs: The Journal of International Issues 22.1 (2018): 122-135.
  7. Leonard, K. B. "Women and social change in modern India." Feminist Studies 3.2 (1976): 117-130.
  8. The judges have recognized that past incidents can give rise to fresh provocation
  9. Suryansh Singh, 'Case for objective standards to determine 'grave and sudden provocation' as an exception to murder, Leaflet, 2022
  10. Ramanathan, Usha. "Reasonable Man, Reasonable Women and Reasonable Expectations." Engendering Law: Essays in the honor of Lotika Sarkar. Pp (1999): 33-70.
  11. Subbia Goundan was charged for causing intentional harm to his 20-year-old wife by beating her, as well as injuring her mother when she interfered, culminating in her death. The incident prompted the Sessions Judge to declare the right of the husband to beat his wife for impertinence and impudence. Ramanathan,"Reasonable Man, Reasonable Women, and Reasonable Expectations." Engendering Law: Essays in the honor of Lotika Sarkar. pp 5
  12. Women, U. N. "Statistical framework for measuring the gender-related killings of women and girls (also referred to as femicide/feminicide)." (2022).
  13. Walker, Lenore EA. The battered woman syndrome. Springer publishing company, 2016.
  14. Kumari, Ved. "Gender Analysis of the Indian Penal Code by Ved Kumari. P. 139-160. In Engendering Law: Essays in Honor of Lotika Sakar, Lucknow: Eastern Book Company, 1999."
  15. Katherine O'Donovan, Defenses for Battered Women Who Kill, 18 (2) Journal Of Law And Society, 219-240, 224 (1991).
  16. L. Walker, The Battered Woman, Harper, New York, 1979
  17. Provocation is a concept that is relative to the defendant's traits, circumstances, and current societal norms. It seems unclear that the courts will accept cumulative fear and rage as a gender attribute. Donovan, Defenses for Battered Women Who Kill, 8 (2) Journal Of Law And Society, 219-240, 224 (1991).
  18. Kumari, Ved, Lectures on Law of Crime, 2021
  19. Mayseless, Ofra. The caring motivation: An integrated theory. Oxford University Press, 2015.
  20. Katherine O'Donovan, Defenses for Battered Women Who Kill, 18 (2) Journal Of Law And Society, 219-240, 224 (1991).
  21. Wacks, Raymond. Philosophy of law: a very short introduction. Vol. 147. Oxford University Press, USA, 2014.
  22. It is vital to note that a single case may contain many charges. Some of IPC charges listed against women are sections 354, 366 (kidnapping, abducting, or inducing a woman to marry), 376 (rape), 509 (word, gesture, or act intended to insult a woman's modesty), 354A, 354B (assault or use of criminal force on a woman with intent to disrobe), and 498A (husband or relative of a woman's husband)
  23. Law, Sylvia A., and Patricia Hennessey. "Is the Law Male: The Case of Family Law." Chi.-Kent L. Rev. 69 (1993): 345.
  24. Singh, Parmanand. "Disability, Discrimination and Equality of Opportunities: A Comparative Analysis of the Legal Framework." Journal of the Indian Law Institute 45.2 (2003): 173-199.
  25. Kumari, Ved, Lectures on Law of Crime, 2021
Written By: Aarushi is a graduate in History honours from Miranda House, University of Delhi. Her areas of interest include Medieval history, Art history and Gender Studies. She is currently pursuing LLB from Faculty of Law, Delhi University.

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