Victims of intimate partner violence often do not retaliate while the violence is occurring. ANUKRITI PRAKASH examines the scope of the Battered Wife Syndrome within the framework of domestic violence in India, highlighting the need to widen the standards of reasonableness when it comes to responses to sustained trauma.
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THE abuse of women is a significant social problem, and with the Covid-19 pandemic and subsequent lockdowns becoming a frequent phenomenon, there has been a rise in the number of cases of domestic violence. It has been seen that domestic violence cases often have definitive outcomes, that is, either they end up in the infliction of grievous hurt or the death of the women or in rare circumstances, the women kill their partners – the batterers.
The most common defence taken by women who kill their partners/ abusers/ batterers is that their actions were in reaction to the constant abuse and more in-line with self- defence. The mental state of such women is referred to as the ‘Battered Woman Syndrome (BWS)’. While the syndrome is well discussed in the field of psychology, not much is available on this being a valid ground for legal defence. Though one can find exhaustive literature on the use of BWS as a legal defence in North American and Australian journals, a critical dialogue in India is yet to emerge.
Back in June, a French court found one Valérie Bacot guilty of killing her husband, but did not sentence her to imprisonment. She had been the victim of constant abuse at the hand of her step-father, who later became her husband. She snapped and shot her husband when it became clear her daughter would suffer the same fate as her. Taking her circumstance and the lifetime of abuse into consideration, the court suspended three out of the four years of imprisonment she was sentenced to. The remaining one year was considered complete as she had already spent a year in prison while the trial took place. While everybody celebrated the win, her lawyer, Nathalie Tomasini, said she hoped BWS would one day become an acceptable defence, as it is in Canada.
Under Canadian law, BWS is an acceptable legal defence. However, its use has been very erratic, thus making one wonder whether, given the increasing number of domestic violence cases and persisting forms of intimate partner violence, Indian laws are equipped to deal with similar cases. Another aspect of this question involves determining the form in which BWS can be introduced in the Indian scenario.
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The concept of BWS was introduced in the public sphere in India when actress Aishwarya Rai portrayed Kiranjit Ahluwalia in the film ‘Provoked’. The film was based on Ahluwalia’s real-life experiences of initially being convicted by a British court for the murder of her husband, and later having the conviction overturned on the ground of diminished responsibility.
Though one can find exhaustive literature on the use of BWS as a legal defence in North American and Australian Journals, a critical dialogue in India is yet to emerge.
It was not until recently that an Indian television series was made on the same concept. The serial, titled ‘Criminal Justice: Behind Closed Doors’, shows the horrific side of what domestic violence can lead to and how, if the circumstances and mental condition of the woman are not considered, gross injustice can occur. The show is based on the concept of BWS and illustrates how the masses, the legal system, and moreover, the woman (the accused) herself, is oblivious to the existence of the syndrome and its impact. The story revolves around a woman who kills her seemingly ‘perfect’ husband one night and confesses to the crime. At first look, it appears to be an open and shut case but when the defence counsel starts to dig deeper, the real story surfaces. A cycle of constant sexual and mental abuse becomes evident, a reality which the woman first denies due to her internalized trauma, and later opens up about as the trial progresses. Throughout the series, the audience can feel the dilemma, suffocation, and pain of the female lead character, who is constantly fighting with internalized guilt even though she was the victim of the situation.
Lack of physical and mental support, especially in the socio-cultural context of India, makes it extremely hard for women to free themselves from the stronghold of their abusive partners.
This series once again draws attention to BWS and how it needs to be understood by society at large. It depicts not only its psychological aspect, but also provides a legal perspective on the situation. The serial sheds much needed light on the treatment of abused women and the need for sensitization to the condition within the Indian context. It is time that India develops its own literature and scholarship on the subject of BWS, not only in the socio-psychological sphere but also in the development of legal policy and jurisprudence.
The current literature on BWS in India lacks a critical analysis of its inclusion in the statutory framework of the country. And so, with the increasing number of domestic violence cases during the pandemic, it becomes all the more important to bring BWS into the spotlight and critically analyze its legal merits and demerits. Doing so will not only lead to a better and wider understanding of mens rea, a principle that is heavily dependent on psychological factors, but also lead to a more gender-just dispensation of criminal law. The biggest roadblock while discussing the inclusion of BWS as a legal defence comes from the understanding of the term ‘reasonable man’ standard as construed under the Indian Penal Code (IPC).
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Before delving into the intersection of the two concepts, lets first understand what these two concepts mean. A ‘reasonable man’ may be described as a hypothetical person in society who exercises average care, skill and judgment in conduct, and who serves as a comparative standard for determining liability. ‘Battered Woman Syndrome’ is a term that was coined by American feminist psychologist, Dr Lenore E. Walker in the 1970s to understand the psychological implications of women suffering from ‘intimate partner violence’. This theory takes into account the continuous violence faced by women who kill their batterers and the psychological impact of such battering on them.
‘Reasonableness’, here, like most other rules and laws, has been evaluated from the perspective of a man, hence ignoring this dimension to women’s behavior.
Criticism and counterarguments
While the concept of BWS is slowly gaining acceptance in various jurisdictions, it does carry its fair share of criticism. The most common of these questions is why these women bear with the violence and do not just leave their partners.
The concept of ‘learned helplessness’ (co-opted by Dr Walker from American psychologist Martin Seligman’s psychological studies to explain the behavior of a battered woman) stems from here. The continuous battering and violence make the female feel trapped in the relationship. Lack of physical and mental support, especially in the socio-cultural context of India, makes it extremely hard for women to free themselves from the stronghold of their abusive partners.
This leads us to the next criticism, of women using this standard or exception to escape punishment. This may be argued on two levels. First, it would give women the freedom to retaliate and kill their husbands on the slightest provocation, allowing them to get off easy, and second, it would interrupt the right to a fair trial to male homicide defendants and victims. Additionally, it is also criticized for its application to non-confrontational homicide, such as killing in sleep or the killing of an incapacitated spouse, which is what happened in R v. Ahluwalia.
This line of criticism does not sit well with feminists, human-rights activists, and women in general. To address such criticism, the following explanations are advanced:
1) BWS as a legal defence does not simply mean the creation of a new exception, but rather an opening into statutory defences to help judges understand the condition of a battered woman and consider their experience and their trauma.
2) BWS does not promise a full exoneration and only acts as a partial defence. This means that the use of BWS in a case of provocation or diminished responsibility only shifts liability from a higher offense such as murder to that of culpable homicide not amounting to murder. While many psychologists disagree over the gravity of this condition, it must be evaluated on a case-to-case basis rather than making it a general exception for all women. Additionally, courts do partially implement this kind of reasoning, albeit without acknowledging the terminology explicitly.
A simple point that needs to be understood here is that BWS is not being asked to be made into a separate defence altogether. Rather, what is being suggested is that as BWS pertains to a psychological condition, it should be taken into consideration in cases where women end up killing their husbands/batterers. In such cases, the ‘reasonable man’ standard fails to do justice as it completely sidelines the mental state or condition that led to the event.
Conflicting intersection
1. Right to private defence
Under the IPC, two of the exceptions to the offence of murder are the right to private defence, discussed under Sections 96 to 106, and grave and sudden provocation, provided as the first exception under Section 300. Both these defences are based on the ‘reasonable man’ standard which excludes BWS. While BWS may be considered important under private defence, the qualification laid down in the clauses under these sections, especially Section 100, makes it difficult to apply, as ‘reasonable apprehension’ needs to exist. The law requires the threat to be immediate, but in the case of BWS, the defendant kills her batterer on an apprehension based on past violence.
Additionally, women, due to the fear of renewed violence, attack when the partner is vulnerable as in the Ahluwalia or Sarah Thompson cases. It becomes important to note that apprehension, in such a situation, is as serious as an immediate threat even though it does not meet the criteria of ‘reasonable apprehension’. The continuous repetition of violence leaves a perpetual fear of being beaten even during periods of relative calm. Thus, their apprehension becomes equally reasonable as the danger persists as long as the batterer is around.
2. Grave and sudden provocation
Similarly, in ‘grave and sudden’ provocation, the law requires that there has to be sudden and temporary loss of self-control as was held by the Supreme Court in its judgment in the case of Muthu vs. State (2007). Further, in the case of K.M Nanavati vs. State of Maharashtra (1961), it was made clear that there should not be any lag between the provocation and loss of self-control. The reaction should stem from the ‘grave and sudden’ provocation and not the idea of revenge. When there is a lag, it leaves room for cooling down and for one to regain self-control, as per the apex court’s ruling.
The requirement of suddenness is extremely unfair in the case of battered women as the idea of provocation works differently in their case. Most cases approve of the objective test of provocation according to which a ‘reasonable man’ standard is used by the court to determine the reaction of a reasonable man in a similar situation and circumstance as the accused. This leads to a discriminatory view towards such battered women, as it fails to account for the subjective experiences of such victimized women who are provoked by their partners. The gradual and slow-burn nature of provocation in the situation of battered women justifies the need for having ‘sustained provocation’ as a valid legal exception.
Recent developments
In the current status quo, what we lack is a ‘reasonable woman’ standard or a more inclusive standard catering to a wider audience. Though the Indian judiciary in the recent past saw a shift in paradigm when, in its judgment in Suyambukkani vs. State (1989), the Madras High Court discussed the idea of ‘sustained provocation’ as a product of judicial interpretation, created in addition to the exception provided for in section 300 of the IPC.
A similar interpretation was applied by the same high court in 2012 in the case of Povammal v. State, wherein a mother had killed her son in a fit of grief and anger. While the idea of ‘sustained provocation’ has been discussed in several cases in the past, and more extensively in the K.M. Nanavati case, it is still not considered a valid exception to murder. While some courts interpret sustained provocation as an addition to the exception under of section 300, others claim that such an interpretation amounts to judicial overreach. Hence, due to a lack of clarity on whether sustained provocation can be used as an exception or not, survivors are left to the mercy of the courts and the judges’ interpretations, leading to an uneven dispensation of justice.
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In Suyambukkani, the ‘Nallathangal syndrome’ was recognized as the Indian version of BWS. In this case, the appellant was subjected to domestic violence by her husband, and when the situation became unbearable, she, along with her children, jumped into a well. While she survived, her children died, and she was charged with murder. Later, on appeal to the High Court, the sentence was changed from murder to culpable homicide not amounting to murder, taking into consideration this very syndrome.
The ‘Nallathangal syndrome’ takes its name and reference from a ballad in which a woman commits suicide, unable to bear the misery and agony caused due to poverty.
While it can be seen as a step forward in recognizing psychological trauma and its effect on an abused woman, the terminology, at its core, does not take into consideration women who are subjected to violence. The ‘Nallathangal syndrome’ takes its name and reference from a Tamil ballad in which a woman commits suicide, unable to bear the misery and agony caused due to poverty. It nowhere refers to violence against women or abusive partners. The syndrome originates more from a perspective of pity and empathy, rather than a practical assessment of continuous violence and battering, which are essential components of BWS.
The Guwahati High Court, too, in 2013, set aside the murder charge against the appellant Manju Lakra, basing its judgment on this very syndrome. Although it considered the concept of sustained provocation, the interpretation was devoid of reference to the ‘lapse of time’ notion, which is one of the main aspects of BWS.
Many a time, women who have been continuously battered tend to attack their batterer when they are either asleep or in a non-combative state, thus, resulting in a lapse of time between the act of provocation/abuse and the time of the attack. Going by the principle laid down in Nanavati, the court held that though the concept of sustained provocation can be considered, there cannot be a lapse of time, meaning there should not be any cooling down between the offense and the provocative act. Similarly, in B.D. Khunte v. Union of India & Ors. (2014), the Supreme Court held that the response to provocation must be immediate, and the cooling-off period must be absent.
Thus, Manju Lakra, the accused in the case before the Guwahati High Court was considered to have retaliated during the period of abuse, with no lapse in time, bringing her case within the first exception under section 300. The judge, in this case, also went on to state that ‘sustained provocation’ cannot be read/ interpreted as being part of ‘grave and sudden’ provocation as that would amount to judicial overreach.
There has been no occasion to test the application of ‘Nallathangal syndrome’ and ‘sustained provocation’ by the Supreme Court so far, making the use of these concepts and their interpretation selective, more so in the case of sessions courts that tend to stick to the letter of law.
Final word
The concept of BWS has lately been a focus of media attention, with movies, TV series, and public forum discussions being organized to sensitize people about such a condition. Though all of these initiatives and the concept of ‘Nallathangal syndrome’ have drawn a little attention to BWS in India, acceptance of the syndrome is still at a nascent stage. It is important to note that interpretation/application of the ‘Nallathangal syndrome’, in the absence of sustained provocation with the lapse of time, fails to take into account the ‘learned helplessness’ of the woman, due to which she may kill her abuser when he is in a non-combative state, thus side-tracking the concept of BWS being used as a defence.
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Hence, there is a need for lawmakers to realize the existence of such a group of women who have been battered at the hands of their husbands/partners. These women resort to acts of violence in retaliation to the abuse, and such violence should be judged in light of those particular circumstances. These women should not per se be considered or declared ‘mentally ill’ but should be seen as victims of their situation. Moving forward, the ‘reasonable man’ standard must be widened to be inclusive of BWS, or a separate understanding/standard needs to be carved out to take into consideration such women’s behaviour and reasonability. What we need now is legislative reform in the understanding of the defence of provocation and self-defence. There is a need for critical dialogue to assess the use of BWS in the Indian legal framework in the best possible manner.
Indian jurisprudence on BWS needs to progress beyond the ‘Nallathangal Syndrome’. One way of doing this is to reflect upon the progress made in other jurisdictions and accordingly initiate a comprehensive discourse for the inclusion of BWS. While the concept of ‘sustained provocation’ emerged from Indian courts, it is time that a robust understanding and use of this concept, especially in cases of BWS, be established. Moreover, this can be seen as a step towards ‘un-gendering’ the IPC, which has been long overdue.
(Anukriti Prakash is a second year law student at the Faculty of Law, University of Delhi. The views expressed are personal.)
