Over the last decade, a shift in approach towards domestic violence has taken place and several legal reforms have been directed to assist the survivors. The Protection of Women Against Domestic Violence Act is one of such law that has been enacted in the year 2005 to provide civil remedies to the survivors besides criminalizing domestic violence. While these legal reforms have been debated within the social as well as legal context, much furor has been created after the Supreme Court in Arnesh Kumar v State of Bihar pronounced that `Section 498A has been misused by the disgruntled wives’. However, the other side of the picture has been completely overlooked in these deliberations. This discussion fails to acknowledge the fact that in the cultural context where women’s subordination is a norm and often they are socialized to silently tolerate the oppression the law does not consider several significant elements into account. For example, the history of abuse, pattern of violence and a woman’s psychological state or experience are factors in domestic violence cases which may have major impact the outcome of the criminal litigation. The courts need to dwell on same while adjudicating. Nevertheless, in the countries like Australia, Canada, New Zealand, United Kingdom and the United States the doctrine of the Battered Woman Syndrome has gained legitimacy in psychological and legal sphere and is applied to defend those women survivors of domestic violence who are held guilty of killing their oppressors under the law. The courts in India have not applied the Battered Woman Syndrome concept until recently when the Delhi High Court in its landmark verdict while applying this doctrine hold a male accused guilty of abetting suicide of his wife. This work looks at this doctrine of the Battered Women Syndrome and its applicability in the Indian context.
What is Battered Woman Syndrome?
Women battering, frequently, involve a course of conduct where a woman in physically abused or assaulted multiple times combined with pattern of isolation, intimidation, mental abuse and control. As a result of repeated abuse, these women suffered `learned helplessness’ when they began to believe that there is no escape from terror situation. The cycle of violence further reiterate the feeling of learned helplessness as women feel trapped in an abusive situation. Threat of further violence and intimidation prevents them from sharing their concerns with anyone else thus ensuing isolation. Women in such situation shift their focus from escape from the violent relationship to mere survival. Battered Woman Syndrome therefore describes about the pattern of abuse besides, subjection of a woman, her psychological situation and her response in a recurring and escalating cycle of violence. Fear and threat of violence besides its uncertainty may force women to indulge in self destructive behavior. Yet, it is an act of resistance and rebellion against the power dynamics.
In Western countries, the concept of battered women syndrome has been used in defense of women survivors who because of their psychological state end up killing their batterers. It is a social and a legal construct which explains the behavior pattern of a battered woman based on her experiences of domestic abuse. The term `Battered Woman Syndrome’ was coined by Lenore Walker and denotes a set of distinct psychological and behavioural symptoms that results from prolong exposure to intimate partner violence. It is a deeply layered form of multiple victimization where a woman could think of no other option to escape violence but to attack her perpetrator. Walker conducted the interview of victims of domestic violence during the period from July 1978 to June 1981, with 435 women in Colorado in USA with a view to test two specific theories about battered women – the cycle theory of battering and an adaptation of Martin Seligman’s learned helplessness theory.
Walker observed that spousal abuse generally occurred in three phase cycles marked by varying degrees of severity. She argued that in the first ‘tension building’ stage, the victim is exposed to verbal and/or emotional abuse besides minor episodes of physical violence, such as slapping. In response, the victim may attempt to pacify their abuser with the object to avoid future conflict. However her passive approach reinforces the abuser to enhance his violent tendencies until it culminates in the second stage called as the `acute battering incident’. This phase is characterized by severe beating and verbal abuse. Although the author projected that the severity of violence in this phase may vary, yet it is at this time that a victim’s sense of fear and threats are at the peak stage as it involves the risk of death or serious injury. The discharge of tension in the second stage, according to Walker, would invariably lead to a third phase of ‘loving contrition’ or honeymoon phase in which the batterer exhibits conciliatory behaviors and may attempt to convince the victim that he is full of remorse and regret about being violent. He assures the woman that battering will be discontinued. However, this is a critical period and may end up again in tension build up and mild battering in case woman stays. The cycle may repeat again and the level of violence inflicted on her will increase with each cycle. Women, therefore found themselves trapped in such cycles of violence.
A victim may go through one or several cycles before she fall into the patterns of behaviour known as “learned helplessness” as proposed by Seligman. A woman may passively choose to leave with the batterer because she fails to perceive battering as a pattern of behavior and rather assumes that it is due to some of her fault that she is being battered. According to Walker, because of continuous constant exposure to repeated severe violence women often loose determination to respond to harmful situation and eventually get trapped in the never ending cycle of battering. Many of such examples are seen in Indian situation where women find themselves trapped in such cycles of violence over years as considering cultural, social, familial and religious taboos accompanied by absence of welfare and support systems including shelter homes, along with the lack of economic or financial assistance or financial incapacity, finding courage to walk away from violent marriage is not an easy choice.
It is also theorized that a woman who has been severely and continuously abused over a prolong period develops a physical and a psychological condition which is severe than usual depression or Post Traumatic Stress Disorder (PSTD). Constant cyclical pattern of battering results in accumulating the terror effect and put the victim in the constant state of fear. Because of physical violence or threat of such violence a woman could not think of taking any independent action that would allow her to escape the abuse. A woman who has been assaulted and victimized over the years may exhibit not only certain psychological conditions but also may develop certain irrational beliefs like thinking that it is her. She attempts to avoid the psychological impact of battering by avoiding activities, people, and emotions, becomes hyper-vigilant, developed disrupted interpersonal relationships and may develop a fear for her life or the lives of loved ones including children or close relatives, whom the abuser might or has threatened to harm. Also, instead of looking for options to escape violence she is lured into staying in such violent relationship hoping that situation may change. In the face of increasing violence, the woman’s belief was that the only way she could protect herself and her children was to eliminate the abuser when he is vulnerable and is no position to fight back when attacked. As per this doctrine, a woman is compelled to take such step because she suffers extremely and because of her situation of learned helplessness which occurs due to the uncontrollable battering by the male partner she lost control over herself and her surroundings. It is now a accepted fact that in such cases provocation is not immediate, sudden or grave but is gradual spread over a long period of time or `simmering down’ because of repeated escalated attacks on her over a period which result in mental, emotional and psychological harm.
Battered Woman Syndrome: As a Legal Defence
Battered Women Syndrome is now accepted legally as a term used to refer to the severe psychological trauma caused by domestic abuse in the Western world as a psychological defense in law. The courts in Australia, Canada, New Zealand, United Kingdom, and United States have accepted the extensive expanding body of research showing that battered women can use force to defend themselves and sometimes kill their abusers because of the abusive and life-threatening situation in which they find themselves, acting in the firm belief that there is no other way to preserve self than to kill the abuser. Defense lawyers used the doctrine in a variety of defense ranging from defending a charge of murder to mitigate the sentence. The courts have recognized this doctrine in cases of provocation and diminished responsibility.
This concept of Battered Women Syndrome has been introduced in law to help explain the reasonableness of a woman’s actions in self-defense against her abuser. Schneider explains, “An act committed in self-defense was justified given the individual actor. The trier of fact must understand the circumstances of the act and identify with the actor. In examining the circumstances of the act, the fact finder applies substantive rules that reflect a standard of reasonableness.” She further argues that Battered Woman Syndrome was intended to “overcome sex-bias in the law of self-defense and to equalize treatment of women in the courts.” It has been further opined that the court should use the principles that are different from that of `reasonable man’ or even the stereotypical `reasonable woman’ who is passive and docile and submit to violence without complaint. In dealing with such typical cases where a woman respond to situation of a prolonged cyclical violence the court must take into account the woman’s fearful psychological state. Battered Woman Syndrome is considered as a `defense of necessity’ based on the idea that because a woman is placed in a difficult situation, her context and location should be taken into account while adjudicating. Even otherwise, the criminal law is based on the principle of `mensrea’ or the `intention’ of the accused whereby an accused cannot be held guilty in case the crime is done unintentionally. The law further uses the principle of reasonable standards. The inclusion of psychological defense would therefore implies that the law chooses to consider the psychological mindset of the person and the conditions in which a reasonable person may react in similar circumstances. Thus what is acknowledged here is the human aspect which the psychological doctrine upholds.
The critiques of this theory argued that use of this defense in the court may facilitate analysis of individual situations or cases but it will not help to look at the deep underlying social conditions. It was also suggested that this theoretical postulation will also strengthen the stereotype that women are irrational and emotional. However, this critical hypothesis has been resisted on the ground that most women who kill their abusers show no signs of Post Traumatic Disorder once they are able to continue with their lives without the fear of violence. It has further been said that the use of the term `learned helplessness’ suggests that these women who survived such horrendous abuse are helpless and powerless. Nonetheless, Walker explained that the concept of learned helplessness depicts the persons’ ability to react or respond in a particular situation and facilitate the jurors to understand the situation in which a battered woman used deadly force against her batterer in self defense. Also, another critical argument raised is that law would not encourage women to get rid of their abusive husbands by killing them. But this is refuted on the ground that it is the failure of the legal as well as the social system to prevent men from hurting women for which an individual women should not be allowed to suffer. The women in such situation need to take action rationalized some of the feminist jurisprudence scholars.
Applying Battered Woman Syndrome in Courts
In England, the matter of Kiranjit Ahluwalia was the first matter where the defense of Battered Women Syndrome was pushed and the `immediacy’ requirement of provocation was done away with. In the matter of R v Ahluwalia a battered wife killed her violent and abusive husband. She claimed provocation and the judge directed the jury to consider whether, if she did lose her self-control, a reasonable person having the characteristics of a well-educated married Asian woman living in England would have lost, given her husband’s provocation. On appeal, it was argued that the judge should have directed the jury to consider the standard of reasonable person suffering from ‘battered woman syndrome’. Having considered fresh medical evidence, the Court of Appeal ordered a retrial on the basis that the new evidence showed. This decision is significant to the defense of battered women because of its impact on the “reasonableness” requirement. Using partial doctrine of provocation, the court held that the psychological characteristics of a battered woman could be useful for the jury in considering the requirements of self-defense and provocation. It allows the jury to consider the effects of long-term abuse.
Similarly, in another matter, Sara Thornton was facing an abusive and violent situation where her partner told her that he will eventually murder her while she sleeps. She was psychologically paralysed assuming that her partner may kill her anytime. Because of threat and fear and being utterly dejected she stabbed him. She was convicted of murder. The court rejected her plea without considering the fact that she did this to psychologically defend herself. The battered wife then adduced fresh evidence that she had a personality disorder and the Court of Appeal ordered a retrial considering the fact that, if the evidence had been available at the original trial, the jury might have reached a different decision. In R v Charlton, following threats of sexual and violent abuse against herself and her daughter, the defendant killed her obsessive, jealous, controlling partner while he was restrained by handcuffs, blindfolded and gagged as part of their regular sexual activity. Her term of five years’ imprisonment was reduced to three and a half years because of the terrifying threats made by a man who was determined to dominate and control the defendant’s life. The court held that the threats created a genuine fear for the safety of self and for her daughter. This caused the defendant to lose control and make the ferocious attack. There are other cases in which a battered woman had assaulted her abuser without any provocation, but nonetheless has been perceived as defending herself due to her special psychological state of mind.
In United States, in the matter of State v Kelly the court uphold the use of Battered Women Syndrome as a defense because “some women become so demoralized and degraded by the fact that they cannot predict or control the violence that they sink into a state of psychological paralysis and become unable to take any action at all to improve or alter the situation.” The New Jersey Supreme Court held that the existence of battered woman syndrome was relevant to the honesty and reasonableness of a woman’s claim that she believed her life was in imminent danger of death or serious injury. Later, almost all the fifty states in US permitted expert testimony in the matters relating to Battered Woman Syndrome. In Australia, the court in the matter of My Chhay opined that where “a loss of self-control can develop even after a lengthy period of abuse and without the necessity for a specific triggering incident”, commented “that this is an area in which psychiatric evidence may assist juries to develop their understanding beyond the commonplace and the familiar”. In other cases too, the court has instructed the jury to look into history of abuse. In Canada and New Zealand too the law and the legal system have been considering the impact of Battered Woman Syndrome while adjudicating the matters in which woman suffer extreme abuse and because of her psychological condition she resort to violent action believing that it is the only way to escape torture.
Battered Woman Syndrome in India
Indian legal system including the criminal litigation arrangement is a microcosm of wider social patriarchal structure and is gender biased in spite of the Constitution promises that guarantees equality. Based on Victorian ideology and introduced by the colonial rulers, the criminal justice system in India is androcentric and reiterates gender stereotypes. Though Section 100 does define the individuals’ right to self defense, there are negligible cases where women accused have used this provision to defend themselves. More so, in the situation of wife battering, the self defense option to respond back violently is hardly used by women considering the cultural, social and economic arrangements in a deeply embedded hierarchical patriarchal social order. Women in patriarchal societies like in South Asia are not socialized or conditioned to be aggressive. Submissiveness, docility, obedience, non-questioning approach, all such traits are imbibed under the guise of respect and love for the hierarchical, patriarchal, autocratic family.
In fact, cruelty against married woman or domestic violence was not treated as a crime till the time Criminal law Second Amendment Act was enacted in 1983 and Section 498A was added with the Indian Penal Code as a cognizable, non bailable and a non compoundable crime along with Section 304B which makes dowry death a punishable offense. These amendments were made after the women’s movement in India protested against the increasing number of cases in urban areas were newly married brides were dying of `stove deaths’. Yet, experiences of over more than three decades indicate that the domestic violence is treated as a lesser crime in the patriarchal social order where saving the family is considered as priority even if entails cost in terms of pain and suffering or even death that women pay. Further, most of the courts, judiciary and the police are of the opinion that the provisions of criminal laws are misused and abused.
In Arnesh Kumar v State of Bihar the Supreme Court held that “the fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested”. The court did not stop here. Rather it issued a guideline `to prevent unnecessary arrest and casual and mechanical detention’. The Ministry of Home Affairs has also issued diktats to the police to take special precautions while making arrests under Section 498A in order to prevent misuse and abuse of Section 498A. The powerful male lobby is further making a noise about the misuse and abuse of dowry and violence related laws. However, in spite of such irrational, evidence less claims the women’s activists in 2005 have succeeded in getting the Protection of Women Against Domestic Violence Act enacted. The law provides for civil remedies to the survivors of violence. The experiences indicate that though it provides a space for women to raise their concerns yet it fails to critically examine, highlight or address the oppression within marriage and family.
Also, the manner in which domestic violence cases are dealt with is worrisome. `Mediation’, `counseling’, `compromise’, `adjustment’, `conciliation’, `settlement’ are the words that shape the language and determine the process of law. Women’s conditioning regarding their inability to fight back, denial to assert agency or take decisions, exclusion, controlling behavior, lack of access to financial resources, socialization as person who sacrifices all for the family, isolation and their docility are not taken into account. Rather their submissiveness as wives and homemakers are some of the desired and legitimate elements in a marital relationship. Even while dealing with serious situations like the one where the woman has committed suicide or has died due to violence within home, often the historical background of abuse is regarded as irrelevant. Therefore, in crimes like dowry deaths, dowry murders, abetment of women’s suicide or cruelty against married woman, the legal system avoid considering a woman’s past experience of abuse and sufferings or her psychological state in a given marital relation. The law does not take into account women’s subjectivity and pain and overlook her emotional and social situation in a violent relationship. Further, the social, economic and political circumstances that reinforce power relationship within marriage or family are completely ignored.
Considering such socio-legal as well as cultural scenario, the Battered Women Syndrome was not evoked earlier and it is recently in 2016 that the Delhi High Court in the matter of State v Hari Prashad has held the accused guilty under 306 of the Indian Penal Code for abetting suicide of the victim while acquitting him under Section 304B. In this matter, the accused wife, Pushpa died due to burn when she poured kerosene oil on herself and set fire for the reason that she was harassed by the accused. The witnesses in the matter ascertained the fact that accused was dissatisfied with given dowry and used to beat Pushpa under the influence of liquor. She was physically and mentally tortured by the accused. He also used to taunt her and her family. Pushpa made a complaint to Crime Against Women Cell earlier where the accused apologized for his behavior and gave in writing that he will not consumer liquor or beat her. Yet, the night Pushpa committed suicide she was furiously beaten by the accused. The trial court acquitted the accused under Section 304B on the ground that no evidence was adduced that soon before her death, Pushpa was subjected to cruelty forcing her to bring dowry. The trial court was of the opinion that as the accused has no role in abetting suicide on the ground that he took Pushpa to the hospital immediately after the incident and therefore acquitted him under Section 306 of IPC
On appeal the High Court acquitted him under Section 304B while relying on the explanations as per the Law Commission’s 91st report but found him guilty under Section 306 for abetting suicide. The court held that, “We hold Hari Prashad completely responsible for the suicide by Pushpa because he failed in his duty to provide a matrimonial home to Pushpa where she could live in peace and continued to batter her. Any prudent person could reasonable foresee that Pushpa who was sending out distress signals was likely to take the extreme step which she did and for no fault of hers”. The court dwelled on the fact that the victim took all steps to salvage her marriage and stated that, “She made every endeavour to stand against the torture inflicted by Hari Prashad, but the increasing pressure of torture drove her to allow the iron laws of nature Crl.A.No.333/2000 Page 7 of 13 to work themselves out – towards her destruction. Cursed from birth with the hereditary weakness of the body – when her home was destroyed because respondent’s conscience was never quickened. Her sacrifices did not soften him. Her sacrifices did not enlighten Hari Prashad’s mind. He did not change his behavior. He did not try and make a true man of himself”.
While recognizing the fact that though in the Battered Women Syndrome cases, a victim could defend herself only by launching the counter attack, the court opined that, “Pushpa could not do so because biologically she was weaker. Unfortunately the law would not have come to her aid if she had killed her husband because the defence of sudden and grave provocation as a mitigating circumstance is based on anger and not fear and thus though a victim in her life, the legal system would have treated her as an offender. The provocation by Hari Prashad became her compulsion to end the domestic relationship and she did by taking the extreme step of suicide”. While highlighting the reality of the Indian context, the court focused on victim’s psychological state and elaborated on the manner in which she suffered and forced to take the extreme step.
Though the court portrayed the woman victim as a docile, obedient wife `who has made every endeavor to stand against torture’ thus negating the women’s agency or autonomy while valorizing the woman’s virtues of tolerance and patience as only `when she was hoaxed’ she took the extreme step of ending her life, the court utilized the doctrine of Battered Women Syndrome to understand the situation of a woman in her matrimonial home which was not one earlier. In this matter the court innovatively applied the doctrine of Battered Women Syndrome to the situation where the victim was already dead, yet, it found the accused guilty for abetting suicide of his wife. The Battered Women Syndrome is not used here as a defense as in Western law however it has been utilized to establish the guilt of the accused in this particular case while adapting it in this particular situation suiting to the requirement and reality of the matter.
In India, women are not socialized to respond to abuse by violence. Spousal killing is not prevalent in India though wife beating is a common phenomenon. The cultural, social, religious and structural factors all train and equip women to tolerate the cruelty silently. Women therefore end up internalizing culturally defined gendered roles and consider themselves in inferior positions as compared to that of a man. Traits like submissiveness, passivity, avoidance of confrontation, self blame, compliance and obedience are imbibed and cultivated through different means as explained above. Lack of knowledge regarding entitlements, low expectations, less motivation, willingness to compromise, self sacrifice, non-questioning attitude are attributes that transpired through socialization from the childhood. In fact, even many women activists too tend to impulsively rationalize such culture of oppression while ignoring the concepts of individual choice, agency and power. Indian women refusal to rage is seen as “culturally instilled response and a symptom of internalized subordination, might also be a historically adopted strategy of surviving an aggressive patriarchy”. Though this argument ignores the women’s agency and their capacity to negotiate within the given circumstances, yet, it is true that women’s response to violence here is not based on aggression but they utilize other strategies and techniques like voicing concerns within immediate marital or natal family or to involve kinship network to pressurize husbands to stop the act of violence or eventually end up committing suicide as in this case done by Pushpa.
The law in India needs to recognize and assimilate this psychological aspect of domestic violence which has been excluded and silence has been maintained around the same prior to this case. The recognition of `Battered Women Syndrome’ also implies that the law will take into consideration not only battered women’s physical but also psychological conditions into account while deciding the matter while protecting her human integrity and dignity thus in a way, to also extend the provisions of the Right to Life as provide under Article 21 of the Constitution. Besides, focusing on the psychological situation of victim there is also a need to look into social, economic, cultural and political circumstances in which violence takes place. Avoiding gender stereotypes and labeling a woman as `mad or bad’ is not the purpose of the shift in approach, the need is to consider the situation of the battered woman in a patriarchal society that needs to be reformed. The relative psychological construction of a battered woman under the premises of law is also significant not only to recognize the aspect of her diminished emotional existence but also to protect her from physical torture, cruel, inhuman and degrading treatment. Introducing such insightful humane principles and laws is like deconstructing or `decolonizing the law’ to reframe it while instilling positivity and making it more benevolent and people sensitive besides gender responsive. Accompanied by social and structural changes to do away with patriarchy may help to create violent free homes as reforming law alone will be not sufficient enough to transform the power relationship in a deeply embedded oppressive patriarchal social order.
Adv Dr Shalu Nigam is a practicing advocate and researcher working and taking up issues relating to gender, human rights, and governance and has been conduction research on the issue of domestic violence law, currently, as a Senior Fellow under the aegis of Indian Council for Social Science Research, in affiliation with Center for Women Development Studies, New Delhi. She may be contacted at email@example.com
 In cultural specific context as prevalent in India with no options or support available, a woman often lost hope and may contemplate committing suicide
 Walker Lenore E (1984) The Battered Woman Syndrome, Springer Publishing Company, New York.
 Walker Leonard E (2009) The Battered Women Syndrome, 3rd edition Springer Publishing Company, New York
 Nigam Shalu (2005) Understanding Justice Delivery Mechanism from the Perspective of Women’s Litigants as victims of domestic violence in India, Occasional Paper No 39, CWDS, New Delhi available at http://www.cwds.ac.in/OCPaper/UnderstandingJustice.pdf
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 Alafair S. Burke. Rational Actors, Self-Defense, and Duress: Making Sense, not Syndromes, out of the Battered Woman. North Carolina Law Review, December 2002. (See Cynthia K. Gillespie, “Justifiable Homicide” (1989), p. 179-180)
 (1992) 4 AER 889
 R v Thornton (No 2) (1996) 2 AER 1023
 (2003) EWCA Crime 415
 97 N.J. 178, 478 A.2d 364 (1984)
 (1994) 72 A.Crim.R. 1.
 Runjajic and Kontinnen (1991) 53 A.Crim.R. 362
 A common theme propagated in the most of the Bollywood movies relates to loving and respecting one’s family. There are only few exceptions where the women are shown questioning the patriarchal norms or taking actions in case being betrayed. Khoon Bhari Maang, Saat Khoon Maaf, Provoked, Daman, Lajja are few which exhibit women’s agency and power
 Criminal Appeal no. 1277 of 2014 with SLP (Cri) 9127 of 2013
 None of such voices are raised by the dominant groups including police, judiciary or elite groups when the other laws like AFPSA are being misused or abused by the state agencies.
 Nigam Shalu (Forthcoming) In Search of Justice: Socio-legal Analysis of PWDVA
 Nigam Shalu (Forthcoming) Is Domestic Violence A Lesser Crime: Countering Backlash Against Section 498A
 Nigam Shalu (2016) Re-examining Family Violence: Perceptions of Survivors from India, Research World Volume IV, Society of Social Scientists, Agartala In process
 Banerji Rita (2012) Why Kali Won’t Rage: A Critique of Indian Feminism, Gender Forum (38) http://www.genderforum.org/issues/passages-to-india/why-kali-wont-rage/?tx_wscontentpagebrowser_pi1%5Bpage%5D=3&cHash=2c7ca166e07b121955602dbf0545307e
 Ibid p 4