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
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
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
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.
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
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:
- To include the testimony of BWS in the litigation process to make the
victim's plea more authorised.
- 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
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.