The Case for Inclusion of ‘Battered Woman Defence’ in India
Aman Deep Borthakur*
Volume 11 Issue 1 (2018)
The Battered Woman Syndrome (‘BWS’) was developed as a psychological tool to understand the mental state of battered women who kill their batterers. This article examines the BWS with the objective of placing it within the specific statutory framework of the Indian Penal Code (‘IPC’). It firstly describes the theoretical basis for BWS, as developed by Dr. Lenore Walker and relies on two key concepts, the cyclical theory of violence and learned helplessness. It then presents a defence of BWS against a few points of criticism that the syndrome has attracted over the years. These include, inter alia, its negative impact on the deterrence of crimes against batterers and its symptomatic approach to the behaviour of battered women. Secondly, a cross-jurisdictional analysis of BWS cases in the USA, UK and Australia reveals how it has been used to fit battered women’s behaviour into existing legal defences such as provocation and self-defence by revealing insights from their mental state at the time of commission of the offence. After a consideration of three exceptions under IPC, namely private defence, provocation and necessity, it is concluded that since the experience of battered women does not fit within the literal requirements of these exceptions, there is a need to apply BWS to all the three exceptions, to allow women to claim these defences. This requires changes to the current form of these exceptions to expand their scope of applicability. To that end, the article concludes with a proposal for an amendment to the existing exceptions, and framing a new one generally or under §300 of IPC. It envisages the formal inclusion of the Battered Woman Defence in the Indian legal system.