Preview

BRICS Law Journal

Advanced search

Battered Woman Syndrome: Prospect of Situating It Within Criminal Law in India

https://doi.org/10.21684/2412-2343-2021-8-4-103-135

Abstract

In patriarchal cultures, like the one prevalent in India, rigid, polarised and hierarchical gender roles work to establish a strong normative relationship between gender and the treatment of offenders committing violent crimes such as homicide. While most of the common law countries have already undergone a social change towards making their criminal laws more gender-sensitive by accommodating the experiences of battered women, the situation in India is quite different. Indian courts have recognised Battered Woman Syndrome very recently in only three cases, much differently than courts in other jurisdictions. While in other countries, Battered Woman Syndrome has been adduced by the advocates of battered women to support defence pleas, Indian Courts have resorted to it only to explain the effects of a battering relationship. The fact that Battered Woman Syndrome has only been recognised in such a small number of cases and the lack of scholarship in this particular area clearly resonates the resistance of the Indian criminal law towards women’s accounts of their experiences. Drawing on the example of the three cases, the author makes an attempt to put forth feminist legal arguments and offer a fresh perspective on the possibility of using Battered Woman Syndrome as a defence to address the concerns of battered women who end the cycle of violence by ending the lives of the abuser in a “kill or be killed” situation. Since Battered Woman Syndrome as a subject has been extensively researched in other common law countries, the present study limits itself to the Indian jurisdiction only. This paper also challenges the effectiveness of the existing defences under the Indian Penal Code, 1860 in accommodating the cases of battered women, and highlights the need for the introduction of a new justificatory defence as a plausible solution.

About the Author

A. Deb
West Bengal National University of Juridical Sciences
India

Aishwarya Deb – Doctoral Candidate

12 LB Block, Sector III, Bidhannagar, Kolkata, West Bengal, 700098



References

1. Borthakur A.D. The Case for Inclusion of Battered Woman Defence in Indian Law, 11(1) NUJS L. Rev. 1 (2018).

2. Clough A. Battered Women: Loss of Control and Lost Opportunities, 3(2) J. Int’l & Comp. L. 279 (2016).

3. Edwards S.S.M. Anger and Fear as Justifiable Preludes for Loss of Self-Control, 74(3) J. Crim. L. 223 (2010). https://doi.org/10.1350/jcla.2010.74.3.638

4. Goodmark L. When Is a Battered Woman Not a Battered Woman? When She Fights Back, 20(1) Yale J.L. & Feminism 75 (2008).

5. Gruber A. A Provocative Defense, 103(2) Calif. L. Rev. 273 (2015).

6. Gupta S. Right to Kill: The Case of the Battered Women, 3(2) Nirma Univ. L.J 59 (2014).

7. Jaising I. Domestic Violence and the Law, 1 J. Nat’l Hum. Rts. Comm’n 72 (2002).

8. Kenny E. Battered Women Who Kill: The Fight Against Patriarchy, 13(1) U.C.L. Jurisprud. Rev. 17 (2007).

9. McColgan A. In Defence of Battered Women Who Kill, 13(4) Oxf. J. L. Stud. 508 (1993). https://doi.org/10.1093/ojls/13.4.508

10. Norrie A. The Coroner’s and Justice Act 2009 – Partial Defences to Murder (1) Loss of Control, 4 Crim. L. Rev. 275 (2010).

11. Saitow S.J. Battered Woman Syndrome: Does the Reasonable Battered Woman Exist?, 19(2) New Eng. J. on Crim. & Civ. Confinement 329 (1993).

12. Schneider E.M. Equal Rights to Trial for Women: Sex Bias in the Law of Self-Defense, 15(5) Harv. C.R.-C.L. L. Rev. 623 (1980).

13. Sharma K.M. Defence of Insanity in Indian Criminal Law, 7(4) J. Ind. L. Inst. 325 (1965). https://doi.org/10.1037/e452852008-342

14. Sheehy E. et al. Defences to Homicide for Battered Women: A Comparative Analysis of Laws in Australia, Canada and New Zealand, 34(3) Sydney L. Rev. 467 (2012).

15. Walker L.E. The Battered Woman Syndrome (4 th ed., Springer, 2016). https://doi.org/10.1891/9780826170996

16. Wells C. Battered Woman Syndrome and Defences to Homicide: Where Now?, 14(2) Leg. Stud. 266 (1994). https://doi.org/10.1111/j.1748-121x.1994.tb00502.x


Review

For citations:


Deb A. Battered Woman Syndrome: Prospect of Situating It Within Criminal Law in India. BRICS Law Journal. 2021;8(4):103-135. https://doi.org/10.21684/2412-2343-2021-8-4-103-135

Views: 1657


Creative Commons License
This work is licensed under a Creative Commons Attribution 4.0 License.


ISSN 2409-9058 (Print)
ISSN 2412-2343 (Online)
X