"A new principle cannot be put into effect without bringing with it new mistakes. But we may, however, be convinced that the laws of life - to which belongs the law that suffering follows the misuse of freedom - will finally be able to bring everything within its right limits." ...
"A new principle cannot be put into effect without bringing with it new mistakes. But we may, however, be convinced that the laws of life - to which belongs the law that suffering follows the misuse of freedom - will finally be able to bring everything within its right limits."
— Ellen Key
It has been suggested by some that the concept of family and marriage evolved to shield women and children from the sexual and physical exploitation by the early nomadic men. However, various reports of Domestic Violence in India during the Corona Pandemic refute the celebrated "Stay Home Stay Safe" lockdown slogan. Battering is usually de-emphasized and overlooked. It not only includes the physical injury but also an array of psychological issues which are often neglected. Battered Women Syndrome is such psychological tool which makes an attempt to understand the mental state of a woman who is battered by her husband which provokes her to kill him. The theory, developed by Dr. Lenore Walker, relies mainly upon the concepts of Cyclical theory of violence and Learned helplessness.
Domestic violence is the most lethal at the time when the person is trying to leave the situation. As per Walker's theory, Learned helplessness and hopelessness influence the battered women in such a manner that the death of the abuser seems to be the only available option to end this cycle of violence and that is when, metaphorically, Goddess Durga turns into Kaali. She considers the abuser to be very powerful and hence fears approaching any authority for help. That's how the woman who was initially the victim becomes an accused person in the eyes of law. The factors[1] which help in identifying BWS are:
- High levels of arousal and anxiety
- Disruption in interpersonal relationships
- Physical health and body image problems
- High levels of avoidance and numbing of emotions
- Sexual and intimacy issues
- Re-experiencing the trauma events intrusively
- Cognitive difficulties
Some of these factors are the clinical category from the posttraumatic stress disorder (PTSD) diagnosis category. So it is said that BWS is a subcategory of PTSD. The pre-existing conditions and childhood interconnect with the frequency and severity of the abuse to generate the factors of the Battered Women Syndrome in a person. With the rising mental health awareness in our society these days, there is a hope that the mental health of such battered women is also taken into account.
Presently, the law of self-defence in India is narrowly defined and fails to consider the plight of battered women. According to section 96[2] and section 97[3] of the Indian Penal Code, 1860, the use of force is justified as self-defence if such force is used to protect oneself where the person believes that he or she is in danger of death or serious bodily injury. In case of a battered woman, the defence of self-defence can be taken when the husband (batterer) is in the act of battering. However, the need of the hour is that such battered women are protected under a broader meaning of "self" and the idea of psychological self- defence be reasonably justified. What is disappointing is that even though there is a lot of criticism regarding the Protection of Women from Domestic Violence Act, 2005 in India, yet there is little sensitivity regarding the battered women who retaliate. The only legal framework available in the Indian criminal justice system is the gendered Indian Penal Code. Battered women have to go through a lot to endure the relationship and hide the violence they are subjected to, because of the patriarchal society and the traditional socialization process. As a result they become very submissive and tolerant. The provocation in the case of a battered woman may not be sudden as per the requirement of Section 300 of the Indian Penal Code, 1860, but is gradual. Such provocation, known as sustained provocation, constitutes a series of attacks which is escalated over a period of time and may include emotional, mental and physical torture and abuse. In K.M. Nanavati v. State of Maharashtra[4], one of the parameters evolved in this case permits the court to take into consideration all those acts which began formulating potential anger in the mind of the accused woman to come to a crescendo which is the last provocative act antecedent to the death.
As per the theory, BWS is mostly used as a clarification of a woman's view of threat which led her to commit a criminal offence in self-defence. It is applied as evidence presented during a criminal trial where the battered woman killed her abusive partner in self-defence. The aim of introducing the concept of BWS is to get an acquittal or reducing a first degree murder charge to a second degree charge. The burden includes presenting evidence that the woman was in imminent danger or even perceived herself to be. The term has been used both in a legal as well as a clinical context. It includes an understanding of the effects of battering to cover the physiological, cognitive, behavioural and emotional aspects. It requires a broad range application within the legal system and psychological evaluation and expert testimony. Forensic experts might have a significant role in explaining that how the act of killing of a partner by a battered women actually fit self-defence laws by joining the dots between the facts of the case and the typical basis of self-defence.
The provocation law in the common law scenario has evolved to include the idea of battered women. In cases of BWS, there is a reasonable amount of time between the act of such provocation and the commission of the act of crime. The provocation herein is not grave and sudden but is spread over a period of time gradually. It comprises of a series of physical torture, mental and emotional abuse. In the case of R. V. Ahluwalia[5], the subjection to a certain emotion over a long period of time was accepted as a reasonable defence even though there was a time gap between the provocative acts by the husband and the commission of act of killing by the woman. In the case of State v. Norman[6] decided by the Supreme Court of North Carolina, on similar principles, the battered woman was discharged of the liability of murdering her husband in his sleep. Reminds me of the Movie The Burning Bed where the battered woman puts her husband, the abuser on fire while he was asleep.
ManjuLakra v. State of Assam[7] is the first reported case in India where provocation was provided as a defence to a battered woman who killed her partner. This landmark judgment by the Guwahati High Court talks about the 'Nallathangal Syndrome' which is recognised as the Indian counterpart of the BWS. In India, Suyambukkani v. State of T.N[8] and Amutha v. State[9] are cases on similar grounds by the different High Courts. The Supreme Court of India has so far not recognised this theory in any of its judgments. More focus on the experiences of battered women who retaliate can bestow significantly in challenging the stereotypes that diminish the legitimacy of the experiences of women. As per an American writer, Wendy Shalit, "The best protection against rape, stalking, and domestic violence is to raise men who both understand that women are different, and would never dare take advantage of this difference."
But is this theory scientifically backed or is a claim for compassion or a recipe cooked by the feminist politics, the critics ponder. As per the critics of this theory, the men and women should be held liable for their acts of aggression equally and no compassion should be allowed to justify the cold blooded act of killing another human being. Like all other female centric laws accused of being gender biased, BWS is condemned to be a legal defence benefitting women who kill their partners without the presence of any imminent danger.
Because a law can be or would be misused should not discourage the enactment of such laws which have the potential of protecting the herd of victims. Instead of preventing the abuse, getting rid of the laws made for the wider public interest does not seem to be a logical solution to adopt. The tug of war between the male rights activists and the female rights activists regarding the use and misuse of the women benefitting laws and the gendered notions of equality continues to exist and the scapegoat, that is, the real victims continue to suffer.
The author is an Advocate and views are personal
[1] Lenore E.A. Walker, The Battered Women Syndrome (4thEdn. 2017)
[2]96. Things done in private defence.—Nothing is an offence which is done in the exercise of the right of private defence.
[3]97. Right of private defence of the body and of property.—Every person has a right, subject to the restrictions contained in section 99, to defend—
(First) — His own body, and the body of any other person, against any offence affecting the human body;
(Secondly) —The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.
[4]K. M. Nanavati v. State of Maharashtra, AIR 1962 SC 605.
[5]R. v. Ahluwalia, (1992) 4 All ER 889
[6] 89 N.C. App. 384, 366 S.E.2d 586 (1988)
[7]ManjuLakra v. State of Assam, 2013 (4) GLT 333.
[8]Suyambukkani v. State of T.N., 1989 LW (Cri) 86.
[9]Amutha v. State (2014) 3 MLJ (Cri) 562.