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Why Is There A Need For The Inclusion Of Battered Woman Defence In Indian Law

The term 'Battered Woman Syndrome' was introduced by a female psychologist named Lenore E Walker in the 1970s to shed light and explain the psychological state of women who were suffering from 'intimate partner violence.' It can be understood as the behavioral reactions and tendencies which were exhibited by women after being subjected to long-term, gruesome domestic violence. The two elements which are central to the understanding of battered woman syndrome are 'Cynical Violence' and 'Learned Helplessness.'

Cynical Violence refers to the repetitive nature of battering which usually occurs in three distinct stages. The first stage involves tension building which thereby consists of the gradual escalation of tension in the ways of name-calling, psychological abuse, and/or physical violence where the woman tries to appease the batterer. In the second stage, the battering flares up to extremely damaging levels due to the uncontrollable levels of tension that were built during the first stage.

The explosive rage results in incidents of acute battering in this stage. In the third stage, the batterer expresses regret for his behavior and apologizes, promising to quit battering. This adoring remorse serves as a justification for remaining with the batterer. However, the process repeats itself each time the frequency and intensity of the violence rising.

The concept of 'learned helplessness' helps in explaining the behavior of the battered woman. It can be described as a state of paralysis which is induced due to the continuous battering which makes the woman feel perpetually stuck in the relationship. The continued experiences of physical violence in the relationship induce the woman to believe that there exists no scope to ever leave this abusive relationship, in spite of her best efforts to prevent such violence. The mentality of the woman now shifts towards survival instead of escaping the abusive relationship. [1]

BWS: The New Reasonable Standard

In most cases of battered woman killing their husbands, the liability of the defendant is dependent on whether the actions of the defendant were reasonable given the situation and the prevailing circumstances. More often than not, the question of what should be considered 'reasonable' depends upon the subjective conception of the Judge.

The major flaw with the 'reasonable man' standard is that the male idea of reasonable behavior does not include the experiences of women and the gendered aspect of violence. For Instance, it would not be considered 'reasonable' for a woman to react in a violent manner toward hateful words since it is not something that a 'reasonable person 'would do.

However, what the court fails to consider is that such a response may be justified by the psychological state which is induced by the past violence of the person who is uttering those words. A reasonable man test fails to consider the possibility of this dimension to the behavior of the battered woman. Therefore, this theory necessitates the evolution of a different standard of reasonability in cases involving battered women by considering their situation of prolonged abuse.

The traditional model of rationality fails to do justice by not considering the past of the defendant or the cultural factors since it only conforms to the general requirement that the offender need to intend to commit an act that constitutes a crime. In many instances, a battered woman's intention to kill her batterer is likened to her being a rational actor, committing the act while intending to do so which is not always the case.

The use of BWS would enable the Judges or Jurors to look beyond the surface level to find the reasons which can be attributed to such retaliation and also determine if the present circumstances are extenuating in nature or not. [2]

Responding To Criticism Around The Inclusion Of Bws As A Defence

There have been criticisms that revolve around the fact that if women are allowed to take the defense, the laws which have been formulated would lose their ability to discourage crimes committed by such women. This result would be problematic on two levels: first, it would encourage women to kill their husbands in retaliation at the slightest provocation by letting them off lightly; and second, it would restrict the right to a fair trial for male homicide defendants and victims.

However, the basis for this argument is problematic on several levels- First, BWS as a legal defense does not entail the creation of new grounds altogether for seeking exceptions. The essence of the argument for statutory recognition of BWS is that the literal interpretation of the defense should not be a hurdle in availing the defense in cases where the situation of the battered woman is in conformity with the intent and object with which such a defense was established.

In addition to this, there may exist a requirement to carve out a separate defense to make sure that the understanding of battered woman's behavior is consistently applied across cases that are appropriate irrespective of the fact whether it fits into the exception or not.[3]

Second, it must also be noted that the defense of BWS does not provide complete exoneration but rather only acts as a partial defense. In cases involving battered women, the defense only limits the liability of the battered women from a higher offense of murder to the lower one of that of manslaughter. Thus, the criticism of the defense of BWS exaggerates the negative impact on deterrence caused by mitigation to still severe punishment. [4]

On the other side, a criticism that evokes the need to have a deeper engagement is the guarantee of the application of the BWS defense based on being a battered woman would permit women to intentionally kill their husbands. Therefore, to counter this line of criticism, it would be best if instead of being a general exception available to every woman who is battered by her partner, the defense could be availed on the basis of the facts and circumstances of each individual case. This helps in considering the interests of both stakeholders in a just, fair, and equitable manner.

BWS as a defense expanded the ambit of reasonability of the behavior of battered women through the successful rationalizing of their seemingly 'irrational' behavior. The defense has quite visibly unlocked alternative ways for the women to explain their behavior and enabled the usage of defenses such as necessity and self-defense. [5]

Battered Woman Syndrome In The Context Of Indian Law

Indian law does not explicitly provide for any statutory recognition for the defense of BWS. No exception, including general and specific exceptions provided in the statutory framework of IPC, is prima facie applicable to the case of a battered woman.

There exists a need for the application of BWS as a defense by amending the current statutory framework so that the actions of a battered woman could be included under defenses such as the right to private defense, grave, and sudden provocation or necessity. In addition to this, an argument for carving BWS as a separate exception under section 300 of the IPC could also be assessed.
  1. Grave and Sudden Provocation
    The first exception to section 300 of the IPC entails the conditions required for the application of the defense of grave and sudden provocation. In a bid to make use of this defense, the woman must have killed her battered 'while in a state of being deprived of power and self-control by grave and sudden provocation. ' The standard in this respect is similar to that of the ' sudden and temporary loss of self-control' test as laid down in the case of R vs Duffy [6]by Lord Devlin.

    The objective standard of provocation, which requires the court to consider whether a reasonable man in the same situation as the accused would have been prompted to kill the victim, has been recognized in the majority of cases. This fails to take into consideration the subjective experiences of battered women, who have been provoked by their partners. The case of KM Nanavati Vs the State of Maharashtra [7]made it clear that the existence of any lag between provocation and the event of loss of self-control would render the causal link between the two as broken. Therefore, such a lag would mean that the accused had regained self-control.

    For the abovementioned reason, it becomes absolutely necessary that BWS be applied to the exception of 'grave and sudden provocation.' In the current times, in order to avail the exception, the provocation must be sudden and immediate in nature. The loss of self-control which resulted in the killing of the batterer must be a result of the provocation. The passing of sufficient time between provocation and the act of killing invalidates the usage of the exception.

    Thus, the need for "sudden" provocation is unfair to battered women because provocation works quite differently in those situations. Since the battering typically lasts a long time and is ongoing, it is impossible to pinpoint a single event that caused the loss of self-control.

    More crucially, a woman does not immediately lose self-control following extended battering because of the sense of isolation brought on by the violence. As a result, the provocation is maintained for a long time. Sustained provocation must be recognized as a legitimate exception due to the gradual and "slow-burn" aspect of provocation in battered women.
  2. Private Defense
    The application of BWS also gains significant popularity for battered women to be able to claim the general exception of private defense under sections 96-106 of the IPC. Section 100 of the IPC does deal with certain situations in which the right of private defense may be extended to causing the death of the person. However, the situations in which batterers kill their husbands make it extremely difficult for them to claim that their case falls within the exception provided.

    This happens due to the qualification mentioned in the clause, according to which the right of private defense can be extended to cases where reasonable apprehension exists. In most instances, battered women kill their husbands where there exists no physical apprehension of death, grievous hurt, wrongful confinement, etc., it becomes unlikely that the defense would be successful in the court of law unless it could be justified by applying the defense of BWS.

    The two relevant ingredients which need to be successfully met in order for the battered women to avail of this exception are- reasonable apprehension of death or grievous hurt and the proportionality of the response.

    The requirement for the application of reasonable apprehension of danger is that the battered woman considers it highly likely that the batterer would strike or hurt her immediately. The requirement is not conclusive since it does not take into account the perpetual state of danger that the woman constantly lives in. The battered woman continues to re-experience the violent behavior as if it is occurring repeatedly.

    Furthermore, the cyclic and sporadic phases of non-violent behavior by the partner do not in any way indicate that the threat to the woman's life is over[8]. The apprehension of violence on the basis of past experiences of the defendant may lead to the killing of the batterer. However, it would not satisfy the standard of imminent danger which is mandated by the law.

    Most women attack their batterers due to the fear of renewed violence, either when they are in a state of vulnerability or there is an absence of violence at the time like in the case of R Vs Ahluwalia[9], the offense was committed when the husband was asleep. The apprehension in these types of instances is just as critical, although it doesn't fit into the legal test of 'reasonable apprehension.'

    The second aspect of private defense falls short in protecting battered women as it assesses the proportionality of a response based on variables that do not reflect a battered woman's psychological state. Several battered defendants physically and violently attack their partners while carrying deadly objects like knives. One Indian instance involved the accused throwing large stones at her sleeping partner.

    When determining the proportionality of the act, it is crucial to evaluate the offender's mental condition. When a woman is subjected to constant physical violence at home, she feels helpless relative to the batter. Her physical and mental limitations make it necessary for her to utilize such weapons to deal just "proportionate" damage to a batterer.[10]
  3. Necessity
    The defense of necessity is provided in Section 86 of the IPC which deals with the acts which are likely to cause harm but are done without any criminal intention, in order to prevent to people or property. This defense poses issues in respect of the options which are available to the battered woman in the relationship. It is argued that necessity as a defense cannot be availed since the battered woman was the one who made the decision to remain in her husband's house even after the violence.

    The fact that needs to be considered is even after having the physical ability to leave the house, the woman is unable to do so. The same is due primarily to two factors. The first type results from the batterer's threats, which include harm to the woman or her children, which instills fear in the victim.

    The second argument is on the logistical challenges involved with such a move. A woman might not have any type of job or support to be self-sufficient financially. For the benefit of the family, she is supposed to endure the suffering and hold onto her marriage. These issues make it extremely difficult for a woman to leave an unhappy marriage. She might be forced to kill her batterer if the decision is between staying wed to her spouse and ensuring her survival.

The Situation Of Courts In India

The inclusion of the BWS defense in the statutory framework may seem a far-fetched goal at this point in time, but Indian courts have started to accept the BWS testimony in deciding the cases of battered women. The court's recognition of sustained provocation is an adoption of the idea that the mental state induced by the deceased's preceding behavior may be considered in determining whether there was sufficient cause for provocation.

The precedent-setting ruling of Manju Lakra v. State of Assam[11], handed down in 2013, was the first Indian case to deal explicitly with BWS and established the door for its inclusion in instances involving battered women's defense. In this case, the accused wife fatally attacked her violent and intoxicated husband while he was beating her one night. The court studied the research on the BWS and allowed the victim's history of abuse to be weighed in determining whether her acts fell within section 300's exception for provocation.

The objective of this research was to argue in favor of lessening the unreasonable culpability placed by the IPC on battered women who kill their husbands. The present structure of criminal law completely understands the psychological state of battered women, their situations correspond to those for which statutory defenses have been envisaged. The BWS theory is a technique for explaining why women who have endured long-term violence kill their perpetrators.

The application of BWS in the court shows judges and juries the state of mind that brings to light the behavior of battered women within the mitigatory circumstances. In other words, it avoids the literal interpretation of the statute from hindering its proper application.[12]

  1. Borthakur, Amandeep, "The Case For Inclusion of 'Battered Woman Defence' In Indian Law" (2018) <> accessed 1st November 2022
  2. Lenore Walker, Battered Woman Syndrome and Self-Defence, 6 NOTRE DAME J. OF ETHICS AND PUB. POL'Y 321 (1992)
  3. Rebecca Bradfield, Women Who Kill: Lack of Intent and Diminished Responsibility as the Other Defences to Spousal Homicide, 13 CURRENT ISSUES IN CRIMINAL JUSTICE, 143-167, 151 (2001-2002).
  4. Juliette Casey, Legal Defences for Battered Women Who Kill: The Battered Woman Syndrome, Expert Testimony and Law Reform (1999) (unpublished Ph. D. dissertation, University of Edinburgh, Edinburgh) (on file with author)
  5. Borthakur, Amandeep, "The Case For Inclusion of 'Battered Woman Defence' In Indian Law" (2018) <> accessed 1st November 2022
  6. R v. Duffy, (1949) 1 All ER 932, 935
  7. K. M. Nanavati v. State of Maharashtra, 1962 SCR Supl. (1) 567, 572
  8. Borthakur, Amandeep, "The Case For Inclusion of 'Battered Woman Defence' In Indian Law" (2018) <> accessed 1st November 2022
  9. R v. Ahluwalia, (1993) 96 Cr App R 133, 134
  10. Lenore Walker, The Battered Woman Syndrome 58 (4th ed., 2016).
  11. Manju Lakra v. State of Assam, (2013)'
  12. Borthakur, Amandeep, "The Case For Inclusion of 'Battered Woman Defence' In Indian Law" (2018) <> accessed 1st November 2022

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