Criminal Law class at college some days back left me feeling dejected, helpless and confused. It unfurled a thread of thoughts that have been doing the rounds in my mind for sometime. The topic was Exception to Murder and we were doing the first Exception to S. 300 IPC pertaining to something called 'grave and sudden provocation'. The basic ratio of this exception being that no person should be punished for murder if his action was a result of a grave and sudden provocation by the deceased ie. he should only be punished for Culpable Homicide.
The uninitiated should suffice to know that killing of a human being may be of two types: Murder or Culpable Homicide. The difference between these two is very slight and a good lawyer always tries to bring down the sentencing of his/her client from Murder to at least Culpable Homicide in case no other defence is available. In order to understand the relation between murder and culpable homicide, it is enough to know that while Culpable Homicide is the genus, Murder is a species..just like a circle within a circle..well that's how I picture it.
However, this defence, mentioned in Exception 1 to S 300 IPC, cannot be taken for any kind of provocation. In many of the earlier Indian and English judgments it has been settled and widely accepted that the terms grave and sudden means that 1.) the provocation should be grave in nature and 2.) should be sudden as in the time gap between the provocation and the act of killing should be minimal otherwise it would come under the category of killing with an intention to take revenge, which has no defence in the court of law. What kept my grey cells working was, however, not this. The immediate topic was with regard to the killing of an abusive husband by his wife after a prolonged period of physical and mental harassment, beating and assault by the husband.
In various Indian and English cases, it has been proved beyond doubt that where a husband sees his wife in a compromising position with another man, it is enough grave and sudden provocation for him to kill the wife or the man, as he is seen to have been provoked by the act of is wife and her paramour. There are also cases where a sentence of murder was not reduced to culpable homicide because provocation was not considered sudden enough as considerable time (even a few hours) had elapsed. It is presumed in such cases that a reasonable person should have regained his cool or composure to have thought about the consequences of his act and to have harboured a guilty intention. Thus, the defence is out of his reach.
A case in point is K.M. Nanavati v State of Maharashtra (1961), which is one the most high-profile cases on this subject. In this case, a young naval officer Kawas Nanawati killed his wife's lover in cold blood after he got to know about their illicit relationship. It was held that since the accused had dropped his wife Sylvia and children to the cinema hall and then went to the deceased office, then to his home and shot him dead thus it could be inferred that he must have regained his self control by that time. The case got much media attention and close scrutiny.
It was in fact such a landmark case that though the jury pronounced Nanavati not guilty by a verdict of 8-1, the judge referred the case to a higher court. What is more noteworthy is that after this case the system of jury trials was abolished by the government as it was widely felt that the jury had got biased in this case because of media attention and public support that the case had generated over the duration of the trial.
Moving back to the defence of grave and sudden provocation with regard to women who are physically abused, I was shocked to find that we in India have not yet accepted or acknowledged the battered woman syndrome as has been done in various other countries. If you have seen the movie 'Provoked' you would definitely know what i am talking about. Battered Person Syndrome is a kind of ailment that leaves a person devoid of all self control. The patients of this syndrome are those persons, mainly women who have been at the receiving end of regular beatings, thrashings and whipping of their husband or other family member(s). Out of fear of further abuse or to simply rid themselves of the aggressor, such persons may kill the abuser. In various other countries such a syndrome is considered to be a defence, but not in India where cases of domestic abuse are much higher in number. However, we do have a Domestic Violence Act 2005, which i hope has provisions to cover such cases, as of now, i am unaware.
Now, as law sees it, if a person has had the mens rea to kill a person and he/she does so in a premeditated manner, there are chances that the act would fall under the crime of Murder (S 300) AND such an act would not be covered under the Exception of Grave and Sudden Provocation. But are things the same for a man and a woman?
Between a married couple, the woman is generally the weaker person (physically) who can easily be overpowered by her husband. She has already been subjected to lots of physical abuse since many years and now fears for her life. Does such a woman have any other way out than to premeditate something? Had it been the husband at the receiving end, he would be thrashed the wife back or killed her on the spot and would have easily availed the provocation exception. But the woman who has had the fortitude to be a silent sufferer, and also the limitation of her physical weakness over that man, has no defence left than to keep bearing the brunt, laps and kicks of her abusive husband.
Here, we see a lacuna in the exception which ought to be covered under some case so as to provide reprieve to such battered women who attack their abusers in the middle of the night when the husband is sleeping. This is not because of some sudden provocation but as the result of an accumulated amount of gravest provocation that over the years manifests itself inside her and comes out at a time and under those circumstances when she thinks she CAN physically overpower the abuser, because otherwise he is sure to beat her up even more mercilessly. No marks for guessing who would end up beaten in case a wife, in a fit of loss of control, and under sudden and grave provocation, decides to physically hurt the aggressor. Had it been the case, she would have done it long ago and not been the sufferer for so long a time.
In R V. Ahluwalia, the case on which Provoked was based on, raised a very pertinent issue about what is a provocation for a woman and what for a man. All throughout the IPC we read about "what a reasonable man would have done in similar circumstances". Why don't we ever stumble upon what a "reasonable woman" would do. Agreed that in the IPC the term "men" is inclusive of women too but in cases such as these where a woman is already a victim, how far is it right to hold her guilty of one more crime which she very well may have done to save herself from further assault or a a natural reaction to the repeated provocation by the abuser. While considerable time may have passed but it is important to appreciate the fact that the way men and women react are very different. While men act more in the "spur of the moment" and don't usually emotionally attach themselves with someone who is giving them pain, women, on the other hand take time to react and are so emotional so as to not even leave the husband readily because she is married to him and the social stigma that of being a deserter is too much for her to take.
A still from Provoked
This made me wonder, how easy it is for a man to dodge his conviction under murder as he can take the defence of "grave and sudden provocation" (this he can take for his wife's unchaste behaviour or illicit affair with another man). While a woman, (who instead dodges that provocation and keeps tolerating the heinous acts of the abuser) when faced with a situation of utter hopelessness and fear makes an effort to save herself from further hardships, uses basic common sense not to try to try the impossible act of confronting the husband physically (because she will lose the fight anyway), is considered to have had premeditated the attack and thus, cannot take the defence of provocation. So should we say the man who kills under grave and sudden provocation is less guilty than a who kills under graver but continuous provocation? Because if we go by the law, such a man would get a lighter punishment than such a woman.
A few questions of this unsettled mind, seeking answers
Is it possible to draw that thin line that separates a female mind from that of a male? Would Indian law take into account social pressure, fortitude, restraint and fear that such a woman succumbs to? Should it or should it not??
Why is it that for him unchaste behaviour is considered provocation but for her at times constant abuse cannot be? Is such a woman left without a defence because she is more mindful than she is impulsive? A man acts in impulse because deep down that loss of self control he KNOWS he can physically overpower the woman. But
unlike a man, a woman does not act on impulse in a majority of cases because she has the fear of her incapability to overpower the man she waits. Can such awareness in the subconscious be of any significance in a court of law? Finally, how sudden can sudden be?
Having poured these questions here, I suddenly recall one dialogue from the movie Spiderman when his grandfather gently tells young Parker, "Just because you CAN beat someone, does not give you the right to do so".
