Rostrum’s Law Review | ISSN: 2321-3787

The Right to Kill: The Case of the Battered Women


The current law of self-defence within the definitions of the Indian Penal Code is so narrowly defined, that it fails to argue for the case of battered women, who have lost the basic integrity to function as an autonomous individual. The paper calls for a review of the doctrine of self-defence so as to extend it beyond the boundaries of mere physical harm. A need for change in the current regime is looked upon using the case of the battered women. The idea of psychological self-defence is introduced, explained and justification is sought for the same using constitutionality of the current law and the proposed law. The proposed psychological self-defence doctrine is given a thorough explanation and reference is drawn from common law jurisdictions that have positively identified the issue and amended their law respectively. The example of the battered women is used throughout the paper to exemplify the problem with the current self-defence law. It is used further to substantiate the need for a change within the current doctrine of self-defence.

Keywords: Self-defence, Battered Women, Psychological Self-defence, Constitutionality, Common law jurisdictions.


The area of Provocation Law, owing to the current judgements in the common law scenario, has evolved up to a level to include the idea of battered women, even though in such cases,                   a reasonable amount of time passes between the act/s of provocation and the actual commission of the crime. The basic difference lies in the fact that the Provocation in the case of battered women is not sudden and grave but is gradual and spread over a long period of time. The criminal act committed by the battered women is not the result of a sudden                      one-time provocative act done by the male counterpart. The provocation in such cases constitutes of a series of repeated attacks on her and escalated forms of mental, emotional and moreover physical torture and abuse.

The case of R. v. Ahluwalia[1] highlights the fact that exposure to a certain emotion over a prolonged period of time, is acceptable as a reasonable defence using the Partial Doctrine of Provocation. This defence was not disregarded, even though there had been a clear time gap between the provocative acts of the husband and the commission of the criminal act by the woman.

Through this research paper, we are trying to establish the fact that most of the women, who have been battered and have ended up committing these crimes, do so under a ‘psychological self-defence’. This sort of psychological self-defence has not been properly discussed and assimilated into the law of self-defence and this exclusion forms the basis of this paper.      Many a times, these women are often convicted of homicide or murder, yet what seems problematic to the courts, is an absolute inclusion of this idea of self-defence and the arduous task of incorporating it into such cases, in-spite of the fact that reasonable and ample evidence is present in such cases, so as to prove the prolonged provocation that leads to the actual act of the crime.

The doctrine of self-defence is understood and expanded loosely around the physical aspects of the person in question. Section 96 and 97 of the Indian Penal code define Self-defence and the rights that a person has when acting in self-defence. The use of such force so as to protect oneself is justified as self-defence only where the person using such force reasonably believed that he or she was in imminent danger of death or serious bodily injury and there was no other option, but to resort to deadly force to avert that danger. In most of the situation, where the battered woman kills her husband she can use the defence of self-defence when the batterer (the husband) was in the act of battering his wife.  However, this defence fails when it is used in cases where the batterer is not involved in any sort of violent act that may affect the accused physically or causes sudden and grievous hurt. The case of Kiranjit Ahluwalia clearly demonstrates similar circumstances, where the accused threw petrol onto her husband  in his bedroom, in order to set it alight.[2] The contention that seems to stem at this point and is of relevance to most of these battered women who kill their husbands in a similar fashion is that they ought to be protected under the broader meaning of self and that an application of the psychological self-defence is the need of the hour.

A careful analysis is to be followed so as to firstly, ascertain the identity of this battered woman and secondly, to reasonably justify the idea of psychological self-defence. We analyse certain cases and examine how the doctrine has been applied in the context of Indian criminal law and why an expansion to the former is necessary in view of the developments within various other common law jurisdictions.


Women who have been battered over a prolonged period have been recognized through various empirical studies, reports and other sources. Statistics are essentially and extremely important when being discussed in a court of law, so as to create the need of the inclusion of a certain kind of law in order to adjust with the changing society. The courts should be presented with the particular pattern of violence existent, the relative prevalence of the violence and a cultural pattern of violence against Women.[3]

In the case of Olga Tellis v. Bombay Municipal Corporation[4], the court did accept the fact that a reasonable study and analysis of the statistics of slums should be used in deciding the verdict of the case. The report prepared by NCRB (National Crime Records Bureau) places the total number of crimes committed against women at a staggering 9.8% of the total committed crimes. Whatever be the case at hand, the injuries on women range from simple mental abuse to being attacked and hurt with knives, razors, machetes, broken bottles, iron bars etc. The battered women suffer from broken bones, teeth, miscarriages, concussions etc. Many, if not all are subject to sexual abuses, forced sexual intercourses, group sexual intercourses, bondage etc.


The battered women syndrome came to light during the 1970s, when Walker[5] coined the                     3 phase cycle theory and postulated the existence of such a cycle. The cycle involves a series of 3 phases, where the first stage is referred to as the “tension building phase”. In this phase, the women counter verbal abuses, minor physical abuses and physical attempts by the women to oppose the husband. The second stage is where the tension between the couple rises and the scene turns into an “acute battering incident”. The characteristics of this stage include  severe beating or  verbal abuse followed up by  severe beating. Phase 3 involves the time when the batterer becomes remorseful, regretful and assures the woman that the relationship between him and the battered woman is bound to exist and the battering incident would not be followed by subsequent ones. The third phase is often the critical phase, as often the tension mounts again and this phase leads on again to the first stage of mild battering. The cycle keeps on repeating and the level of violence inflicted on the woman escalates with each new cycle.

Walker further builds upon Seligman’s theory of ‘learned helplessness’, where the woman trapped between these phases, chooses to passively being battered, even though she has ample opportunities of escaping the same. According to Walker, battered women who have been under constant exposure to painful incidents, lose their will to respond to the harm situation and are eventually trapped in this never ending cycle of battering.[6] Moreover, the incentive to escape the cycle is defeated by the financial incapacity[7] of these battered women along with the fact that most of their family members and friends encourage them to remain with the batterers and to continue their relationship with them.


The narrow doctrine of self-defence and its application to the cases where a woman is battered, results in the acquittal of only those women, who have killed the husband in an act where the husband was actively engaged in inflicting an injury. The doctrine does interfere or try to protect those women, who kill so as to protect themselves, not from an imminent physical attack on them, but from an extremely serious psychological injury. The idea here is that these women, who actually do this, do so to protect themselves not from an attack that may eventually kill them, but from an injury that can strictly be defined in psychological terms. The women in essence, are unable to escape the vicious cycle of repeated torture inflicted on them. The threats may not be physically imminent however there is a threat of such a nature so as to cause a psychological paralysis within the accused battered woman.

The issue is perfectly highlighted in the case of Sara Thronton, who was eventually convicted of murder and her appeal[8] was rejected. The case involved around the woman, who was facing her abusive and violent husband, who told her that he would kill her while she slept.[9] The convict ended up stabbing her husband. In such a case, the battered woman had been psychologically paralysed. It could certainly be stated that the attack from the husband could come about at any time, if not immediately or that night itself.

This state of the battered women could very well be described as a stage of learned helplessness or to simply put it in blunt words, utter hopelessness. Now, is it reasonable enough that the battered woman be convicted as a criminal and be punished for something which she did purely within the limits of psychological paralysis. We are attempting here to make a distinction between cases where a complete defence to murder or culpable homicide could be sought for. The distinction is to flow from an over-arching principle of psychological self-defence. The attempt seeks to apply this principle over all sorts of criminal offences where there has been the use of a deadly force. The specific use of the battered woman example is deliberate as it perfectly fits within the demands of such a doctrine and its application.

Criminal law stems from the assumption and understanding that an accused is not to be convicted or be declared a culprit, if the crime was done without his or her free will. The law is further substantiated by the point that such an act of using deadly force is objective in nature. What this means is that, a reasonable person would do so acting under a natural instinct to protect the self. This virtue is found in existence in the foundations of natural law, and has further been adapted and generalised under the banner of common law.[10]

The existence of such a doctrine means that a battered woman, who is affected by internal and external conditionality is bound to do the same that a reasonable person would, if faced with similar circumstances. The doctrine of self-defence primarily deals with physical integrity and as such does not deal with other forms of existence such as the psychological integrity of an individual. The proposed psychological self-defence doctrine aims to protect this much excluded aspect of human integrity. The doctrine is an extension of our understanding of the protection of human life under Article 21 of the Indian Constitution.         The right to self-defence has to satisfy the provisions of this article. “Life” in Article 21 is not merely the physical act of breathing. Article 21 has given protection to life as a substantive right and the Article if properly understood, does not prescribe any particular procedure.[11]

The fundamental right to life has to be understood more extensively and an application of Article 21 to the current proposed doctrine, only adds to its relative existence and enactment under law. The fundamental right to life which is the most precious human right must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person.[12]

The Article furthers the extent of this right by protecting every limb and faculty through which life is enjoyed.[13] The relative psychological existence of battered women can very well be construed under the application of this Article. The extremely diminished psychological existence of a battered woman essentially violates and nullifies the right of enjoyment of this faculty that is integral to human existence. Indian courts have further interpreted this right to enable a person to be protected against torture. Any sort of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21.[14]

The courts have in effect construed this law so as to protect individuals from cruel and inhuman practices, yet what we argue is a broader application of the same so as to create a broader argument of defence based upon the lines of a psychological existence that has been impliedly acknowledged by the courts in their interpretation of the Article.

The current doctrine of self-defence further clarifies the argument that even in cases, where the accused does not wait for the aggressor to cause a grievous injury and acts in self-defence he or she is bound to be acquitted by law.[15]  The battered woman, who kills her aggressor when he is not in the course of causing hurt to her, is to be protected by the application of this doctrine that does not necessitate that the individual be attacked in the course of her self-defence. A battered woman is also protected by the law that states the inclusion of injuries received by the accused, circumstances whether the accused had time to have recourse to public authorities as factors that are to be examined and considered on the plea of self-defence.[16]

The proposed defence is not defeated by a strict application of the rule stated above, even if the accused had time to approach public authorities as the accused mostly acts under self-defence in her house which necessitates the use of the castle doctrine. The castle doctrine enables a person to use reasonable force, even deadly force so as to protect himself or herself in cases of violation of the integrity of the individual or the property of the individual at large. The castle doctrine is the basis for the inclusion of self-defence as a doctrine within common and eventually Indian law that adapted it for its own use. The castle doctrine simply enables the individual to use deadly force, when within the limits of one’s house, even when one can reasonably approach public authorities. Even in cases where there is no defence evidence but from the prosecution evidence itself there is a probability of the accused having acted in self-defence or at least, there is basis for a reasonable suspicion in that direction, that is sufficient to entitle the accused of an acquittal.[17]

The psychological injury can constructively be defined as an extreme and extended (in time) impairment of one’s psychological functioning, that invariably diminishes or extinguishes the physical existence of an individual. As stated above, the proposed doctrine rests upon the principle that the existence of life is not to be merely perceived strictly in a manner that gives precedence to physical existence, but also to encompass and protect the psychological existence of an individual. In the case of battered women, the psychological meaningfulness and the integrity of the individual is so damaged and diminished that the capacity to function autonomously is completely impaired. The case of R vs Ahluwalia is a landmark judgement, as far as the inclusion of the psychological effects of living in a battering relationship as pleading evidence.[18]


In the last two decades, there has been a great deal of review and reform around the criminal law related to individuals within intimate relationships.[19] The province of Victoria[20] and Western Australia[21] have provisions that allow the accused to respond in self-defence in situation where there may or may not be the existence of an imminent threat to the individual in question. The recommendations set out in the Victorian Law Reform Commission’s Defences to Homicide report, were eventually enacted in a new homicide act[22] that set out to expand the self-defence doctrine and introduce expert family evidence with regards to family violence within the pleading system. The provisions have made it easier for domestic violence victims to plead self-defence and be acquitted. The same law has defeated the provisions of provocation law and declared it redundant and outdated.[23]

In Canada, the law on self-defence has been majorly transformed and simplified in the year 2011 using a new statute.[24] It has abandoned the use of ‘justification’ so as to protect people who are pre-mediate homicide or use contract killers.[25] The Supreme Court of Canada in its rulings in 1990 and 1994 has further substantiated on the issue of ‘imminence’. It states that as this is an aspect within the Canadian Criminal Code, it acts only to assess the relative threat faced by the accused.[26]

The case of R. v. Lavallee[27] set out the precedent within Canadian Law, which made expert psychological testimony admissible within the pleading process. Broadly, the law within these jurisdictions has enacted changes so as to include the ideas of psychological hurt, and admission of expert testimony into the trial system.


The inclusion of psychological self-defence within the current doctrines of law may have seemed to be overambitious as it proposes a completely new doctrine based upon the complex paradigm of human psychological existence. However, a closer look at the provisions of the right to life within Article 21 of the Indian Constitution actually allows and creates the need of such a creative and adaptive use of self-defence law.

The depiction and usage of the example of the battered women was specifically to simulate the exact conditions, where the current law fails to tackle and address the situation and the existence of this group of tortured souls who have no respite in life, other than their husbands and when the husband take the form of the oppressor, there is no hope left and the women have no recourse to resort to.

Contrary to the current law, which gives paramount importance to the physical existence of human life, the proposed doctrine tries to give equal importance to other aspects of human living and essential functioning. The proposed doctrine attempts to give more meaning to the psychological aspects of life that make it worth humane and living.

The paper tries to serve the sole purpose of making the law makers aware that a certain group of women exist, who have been badgered and battered  throughout their livesat the hands of their husbands and when they resort to violence, the act should be taken into perspective of the situation they reside in and go through. The defence of provocation needs to be extended and its ambit needs to be widened in order to include the interests of these badgered souls.


[1] R. v. Ahluwalia, (1992) 4 All E.R. 889.

[2] Id.

[3] Asmita Basu, Violence against women: a statistical overview, challenges and gaps in data collection and methodology and approaches for overcoming them (April 11, 2005), available at https://www.un.org/womenwatch/daw/egm/vaw-stat-2005/docs/expert-papers/basu.pdf.

[4] (1985) 3 SCC 545.

[5] See generally, Lenore E.A. Walker, THE BATTERED WOMAN SYNDROME (3rd ed. 2009).

[6] Id.

[7] Id.

[8] R v. Thornton (1992) 1 All E.R. 306.

[9] Aileen McColgan, In Defence of Battered Women Who Kill, 13(4) OJLS, 508, 508-529(Winter, 1993).

[10] See generally, George P. Fletcher, Crime of Self-Defense: Bernhard Goetz and the Law on Trial, University of Chicago Press(1990).

[11] A.K. Gopalan v. State of Madras, AIR 1950 SC 27: (1950) SCR 88; Samatha v. State of A.P., AIR  1997 SC 3297: 1997 (4) SCALE 746: (1997) 8 SCC 191: (1997) Supp 2 SCR 305.

[12] Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746.

[13] Id.

[14] Munshi Singh Gautam v. State of Madhya Pradesh, AIR 2005 SC 402: (2005) 9 SCC 631 : 2004 (9) SC ALE 390.

[15] Mohd Ramzani AIR 1980 SC 1341: 1980 Cri LJ 1010 (SC).

[16] Biran Singh 1975 Cri LJ 44(SC); Ramesh Chandra 1982 SCC (Cri) 136.

[17] Chandrasekhran Adithripad 1987 Cri LJ 1715 (Ker); Seriyal Udayar 1987 Cri LJ 1058 (SC): AIR 1987 SC 1289.

[18] See Supra Note 1.

[19] Elizabeth Sheehy, Julie Stubbs and Julia Tolmie, Defences to Homicide for Battered Women: A Comparative Analysis of Laws in Australia, 34 UNSWLRS, 467, 467-469(2012). Canada and New Zealand

[20] Id at 470.

[21] Id.

[22] Id.

[23]Tyson. D, ‘Victoria’s New Homicide Laws: Provocative Reforms or More Women “Asking For It”?’, 23(2) Current Issues in Criminal Justice, 203, 203-235.

[24] Citizen’s Arrest and Self-defence Act, SC 2012.

[25] Supra Note 19, at 470.

[26] Id.

[27] R v. Lavallee, (1990) 1 S.C.R. 852.

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