By Sharanya Gopinathan
This week, the Supreme Court took great pains to explain the hair-splitting difference between two of the four legal exceptions to murder: “sudden and grave provocation” and “sudden fight”. The first exception is if the offender, “deprived of self-control by provocation”, causes the death of the person who gave the provocation, or any other person in that moment. This requires a total loss of control due to a provocation by someone else. The second exception, a “sudden fight”, requires the mutual exchange of blows on each side, and in this case, it doesn’t matter who provoked whom, and only requires a momentary clouding of judgement due to blows. Successfully claiming any of the exceptions to murder results in the lesser charge of culpable homicide, which naturally can lead to a much lesser sentence.
But in reading these exceptions, you get the distinct feeling the law has gone to really extreme lengths here to search out the situations that end up pertaining mainly to men. I mean, when’s the last time you heard of a woman killing another woman in a “sudden fight” in India? A quick Google search throws up zero recent instances of a case of a woman killing women (or anyone) in a sudden fight in India, while there are several hundreds of reports of Indian men killing people (within the family and outside) during the course of “sudden fights” even just this year.
It becomes a bit more galling when you see that the exceptions not only come from a carefully male world view, but they also actively discount a huge part of women’s existence and deny women the kind of exception they need the most. You see, for these exceptions to murder to be valid, there must have been no premeditation, or prior knowledge or planning, in the death. This seemingly gender-neutral caveat has some pretty serious implications for women.
The rationale behind an exception for fights is that it causes a suspension of reason, prompting a “reasonable man” to do things in that moment he wouldn’t otherwise do. It’s been successfully used to partially excuse men for murdering their wives, like when the Bombay High Court recently lowered the sentence of a man who set his wife on fire (also citing that he didn’t really intend to kill her when he set her on fire during the argument). It’s also been used in cases where men discover their wife’s infidelity and immediately kill them or their partner. The belief is that they probably wouldn’t do something like that in any other circumstance.
Now of course, the same could be said for women who kill their husbands when trapped in abusive marriages: They exist in an alternate reality governed by abuse with no real prospect of escape, and in many cases, are emotionally, physically, socially and financially dependent on their husbands. Clearly a situation where the normal rules of reason and agency don’t apply.
You may have heard of the 1992 case of an NRI woman in the UK named Kiranjit Ahluwalia (whose life inspired the Gita Sahgal documentary Unprovoked and the 2006 Aishwarya Rai-starrer Provoked). Ahluwalia suffered ten years of extreme physical, psychological, and sexual abuse whilst living in the UK with her husband Deepak, whom she also accused of trying to break her ankles and brand with a hot iron. One night, after he physically attacked her in the evening and went to bed later that night, she poured napalm over his head while he was sleeping and set it alight. It was said that since she had the time to “cool off” after the argument that evening, prepare the napalm and then commit the crime at night, she was guilty of murder. Her lawyers successfully argued that the kind of prolonged and severe domestic abuse she was subject to does in fact count as provocation, which resulted in a change in the definition of provocation in the UK and huge victory for survivors of domestic abuse.
But in India, women in such desperate and exceptional situations are still effectively disallowed from claiming these legal exceptions to murder, because Indian law says that they apply only if there is no premeditation. This does women a terrible disservice, considering that there must be hundreds of women who were trapped in unknowably violent and abusive marriages, women with no real criminal beliefs, habits or inclinations to be cured of, or any real debt to pay back to society, languishing in jail for murder with no hope in sight.