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The Gender Bias in the Defence of Grave and Sudden Provocation - Who is the Real Victim?

Authors - Rebecca Cardoso and Tanvi Bhargava


The doctrine of grave and sudden provocation, borrowed from English criminal law, is a partial defence to murder and is available under Section 300 of the Indian Penal Code. A literal definition of provocation is when “words or conducts are sufficient to prevent the exercise of reason and thus temporarily deprive a reasonable person control of himself.”[1] The exception holds that “culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.”[2] Thus it can be seen as a mitigating factor to criminal liability which reduces the punishment of the accused. Furthermore, not only does the accused have to be deprived of self-control, but other necessary elements should be established as well. This entails that (i) the provocation was not sought or voluntarily provoked by the offender as an excuse for the crime, or (ii) the provocation was not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant ; or (iii) the provocation is not given by anything done in the lawful exercise.[3]

The law in India uses an objective standard to determine when the doctrine can be made applicable and that is based on the “reasonable man’s standard” and not that of the accused. This is a mode of assessing gravity of the provocation in order to determine whether a reasonable man in that situation would have also been deprived of his self-control. Another important facet of the doctrine is the “cooling-off period.” Defined by the Supreme Court in BD Khunte v Union of India, it means that the provocation has to be immediate and the offense should follow subsequently.[4] If sufficient time has elapsed between the provocation and the offence, then the exception will not be attracted as the cooling-off period would have expired as the accused would have enough time to regain self-control. However, factors such as “loss of power of self-control” and “provocation” are still subjective terms which can be interpreted in numerous ways. Furthermore, the court is given wide discretion to determine the scope of this doctrine. Therefore, the question of what is sufficient enough to constitute grave and sudden provocation and when can loss of self-control be validly claimed is often subject to the discretion of the judiciary as no set standard can be implemented. Judicial precedents have laid down certain conditions in order to avail this defence. In Akhtar v. State, the court held that only the court can determine whether a person can avail the benefit of Exception I to Section 300.[5] Further they said that, no judicial precedents can be set under this defence because the facts and circumstances of each are different and the court needs to rely on the investigation for that particular case in question.

Indian law has followed suit from the English common law’s doctrine. For instance, in order to answer the question as to what constitutes grave and sudden provocation and how is it to be determined in the UK, the English law has a test which places the “ordinary person” as the standard.[6] Even though this doctrine was developed in the English courts, the court in Akhtar v. State[7] held that there emerged multiple differences in the application of the doctrine in India. However, in both Indian and English courts, one key area of the defence that falls under scrutiny is when gender relations come into play. It has been observed that the common law doctrine does not operate in a gender-neutral way. Studied through the lens of domestic violence, it is especially noted how until mid-twentieth century in England, the defence was successfully availed by thousands of men who murdered their wives yet the same could not be said for women who killed their abusive husbands.[8] English courts saw countless cases where men would seek protection under this doctrine, escaping with lighter punishments for being grievously provoked by their “nagging” or “taunting” wives.[9] The trend was to taint the wife’s character as being unfaithful, promiscuous and immoral. This discourse entrenched with sexist language coupled with misogynistic attitudes towards gender roles would conveniently cloud the court’s opinion, encouraging judges to be sympathetic and to rule in the male defendant’s favour, thus positioning women at a clear disadvantage. By bringing to light this disparity in the law, the paper will aim to explore and provide a critical appraisal of the gender bias implicit in the defence of grave and sudden provocation.


One of the countless cases that highlight the commonplace sexist treatment in courts in the UK, was R v Holford in 1963.[10] The accused shot his wife six times after she hinted at unfaithful behaviour, taunted him about his sexual abilities and insinuated that he was not the birth father of their child. The judge was keen to show mercy and condemn the wife’s behaviour, even though the husband’s reaction to her “taunts” could be seen as rather extreme. However, the judge sided with the accused, saying “can you imagine any words more calculated not only to sear and cut deeply into the soul of any man but to rub salt into the wound at the same time?”[11] Hence, the provocation was deemed sufficient to sentence the accused to merely three years in prison.

Similarly, in 1992, a man killed his wife to “shut her up” because of her constant complaining. He appealed to court where his judgment was suspended for a year, and the judge at his trial stated, “you have suffered through no fault of your own a terrible existence for a very long time and have borne it better probably than most people would have done until finally, your self-control snapped.”[12] A feminist writer Joan Smith observed how in a 1985 case, the court accepted that, where a “hard-working” man was incited by the nagging of his wife, the court reasoned that “a man of reasonable self-control might have done what you did.”[13] Appallingly, what he had done entailed cutting her up with a saw and boiling her skin and bones yet this was seen as reasonable enough to avail the defence.[14] These are examples of a string of cases where the fault-ridden deceased wife who could no longer defend herself would be portrayed in court to be the tyrannical instigator of the man’s misery. In contrast, he would be victimised rather than punished, and his actions would be seen as justifiable.

This benevolence, however, was tightly constrained when the gender roles were reversed. Women who killed their husbands for the same reasons were highly unsuccessful in their pleas for various reasons. For instance, a wife killing her abusive husband should have “voluntarily assumed the risk of provocation recurring since she had not left him but had continued to live in the violent household.”[15] In the landmark case R v Duffy[16], after enduring severe mistreatment, the defendant killed her husband with a hammer while he was sleeping. This highlights how courts were unwilling to consider the factor of domestic abuse and instead emphasised on the essential element of “suddenness” that results in a temporary loss of self-control, which was deemed absent in this case. This principle narrowed the requirement to establish suddenness, therefore making it harder to avail. For instance, in 1989, a woman stabbed her alcoholic and violent husband when he lay drunk on the sofa.[17] Although she was provoked by his threats from the past and his overall abusive nature, she did not act immediately after he assaulted her. Hence, she was convicted of murder and was unsuccessful in availing the defence as the Court held that the presence of the factor “sudden loss of self-control” was not evident since she went to the kitchen to cool down.[18] Thus, it can be inferred from this analysis that the doctrine of provocation, as was interpreted in the UK during the twentieth century, was male-centric in nature and failed to accommodate women’s account of experiences.


These setbacks and prejudices which condemned the gendered nature of the doctrine were acknowledged over time and by the end of the twentieth century, a more gender-neutral conception was advocated for. In England 1991, a politician Jack Ashley sought to introduce a Bill to amend the Homicide Act 1957 so as to get rid of the word “sudden” and to include a requirement to take into account an assessment of cumulative violence.[19] This amendment was unfortunately rejected. The feminist group, Justice for Women in 1990, campaigned to expose the “differential way in which violent men and abused women are treated by the criminal justice system.”[20] A study conducted a year later noted how the doctrine operated largely from a male centred perspective and was “poorly equipped to deal with women who had not just killed a person out of anger but also because of persistent abuse and despair.”[21] Hence the predominant ground on which the doctrine is criticised on is that it is designed from a male standpoint.[22] Typically, men and women react differently on being provoked, and it appears that the element of loss of self-control caters more to a man’s manner of reacting spontaneously and aggressively in the heat of the moment. This distinction between reactions can be noted by an example of men who have a “shoot from the hip mentality,” i.e. the notion of forearming themselves by simply picking up a knife available at hand. This when compared to the reaction of women, shows that the dilemma of immediacy comes into question, considering their response to provocation need to be more measured because they are confronting someone known to be stronger and more aggressive.[23]

Another area of criticism is the failure to take into account the history of domestic violence that a woman would have encountered earlier. A psychological and medically proven condition called “Battered Woman Syndrome” developed by Dr Lenore Walker had, by that time, come into existence which explains the mental state of severe and long-term domestically abused housewives and how it affects them.[24] Two elements associated with the syndrome are cyclical violence and learned helplessness. The consequence of continuous emotional manipulation and physical violence results in the woman feeling trapped and vulnerable. Subsequently, it manifests into extreme dependence on the abuser due to complete loss of self-control, making it harder for such victims to leave their partners or stand up for themselves. In Ahluwalia’s case, she was subjected to more than ten years of physical and emotional torture such as being verbally abused, beaten, choked and even run over by a car. She attempted to take her own life on two occasions and also sought legal action by attempting to avail a restraining order against her husband. Her action of setting him on fire was an accumulation of years of torture. Taking account of this history of violence is imperative when assessing whether the defence can be availed as even though the final provocative act may not be “grave” enough in nature, it is the cumulative acts which when considered, validate the defendant to react on reaching a tipping point. In R v Ahluwalia, the court relied on the principle laid down in R v Duffy; hence the defence under provocation failed.[25]

Furthermore, the Battered Woman Syndrome offers another legitimate reason as to why responses between men and women differ. Victims of the syndrome tend to exhibit a “slow-burn reaction” to the provocation.[26] This means that the woman, who is in an extremely fragile and vulnerable mental state takes longer, sometimes several hours or days to come to terms with the long-term abuse and to overcome her dependency on her abuser in order to take action. Thus, she cannot be expected to react in accordance with the standards set by “a reasonable man.” Nevertheless, this disqualifies such women from availing the defence as they fail to react within the narrow time frame of a cooling-down period.

Furthermore, Ahluwalia’s case was unsuccessful as the court ruled that “there was no medical or other evidence before the judge and jury to suggest that she suffered from a post-traumatic stress disorder, or “Battered Woman Syndrome”, or any other specific condition which could amount to a “characteristic”. There was much evidence that the appellant had suffered grievous ill-treatment; but nothing to suggest that the effect of shows that she was marked off or distinguished from the ordinary woman of the community.”[27] This stream of thought not only disadvantages such women but also exposes how the legal justice system brushes aside domestic violence, moreover normalising it since an “ordinary woman” is not supposed to react the way Ahluwalia did.[28] Although Ahluwalia did receive a reduced sentence, it was believed to be predominantly due to the pressure of media attention and supportive feminist campaigns. Furthermore, she could not qualify as a victim of Battered Woman Syndrome but was instead labelled as suffering from diminished responsibility, implying that she was mentally unstable and not completely sane. Although this allowed her to avoid being held completely accountable for her crime, it nevertheless branded her as an unfit member of society, in need of psychiatric help, instead of recognising domestic abuse and its effect on the victim.


Indian jurisprudence does not yet legally recognise the Battered Woman Syndrome. Typically, men are given leeway in committing crimes often associated with patriarchal notions of family honour such as when the wife is allegedly accused of adultery.[29] In such circumstances, grave and sudden provocation is seen as a valid defence. However, a victim suffering from Battered Woman Syndrome will be excluded from this protection. Furthermore, the socio-cultural context in India is such that a majority of the victims are illiterate and poverty-struck women who are ingrained with traditional notions of enduring and concealing violence for the sake of family values. With the legal system not being easily accessible for them, they have limited options to turn to, leaving them with no alternative remedy but to resort to the extreme option of killing their husband after being forced to tolerate the abuse. It is interesting to note that Manju Lakra v. State of Assam was one of the few cases where a victim of domestic abuse was able to avail the defence of grave and sudden provocation for killing her husband.[30] The literature on Battered Woman Syndrome was reviewed and deliberated on, and a judicially recognised equivalent, “Nallathangal Syndrome” was deliberated on and the accused was only held guilty of culpable homicide.[31] This syndrome is based on a tragic Tamil ballad which revolves around a virtuous, heroic woman who commits suicide with her children after being subjected to extreme poverty and misery. Although there is no reference to any sort of violence from her husband, the underlying idea is that the woman chooses to end her suffering by killing her tormentor instead of killing herself. However, the application of this analogy is also flawed. The syndrome is conditional on the victim embodying characteristics of a “moral woman” who should ideally exhibit the patriarchal values of traditional Indian society. One can interpret this as sexist standards because the court is imposing certain qualities and virtues upon a woman. Further, by not legally recognising Battered Woman Syndrome, the experiences, stages of abuse and behavioural patterns of such women are delegitimised. Hence, the exception still remains gender-biased in nature.


The consequence of having a law which is interpreted in a gendered manner can be observed when the concept of the mode of resentment comes into play. In cases of culpable homicide not amounting to murder, the mode of resentment is an important aspect which deals with how the accused’s retaliatory act should have a relationship to the provocation, i.e., it should be proportionate and not excessive. The mode of resentment also takes into consideration the interval between the last provocative incident and the act of killing. In the case Hafizzullah v State, it was held that “in applying the test, it is of particular importance to consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and to take into account the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation, by a single blow, is a very different thing from making use of a deadly instrument like a sharp and large knife.” [32] Similarly, in the case, Gurya Bucha v. State of Gujrat, Justice V.B. Raju deemed that “for exception 1 to apply, the violence used by the offender which resulted in the death of a person must have a reasonable relation to the degree and duration of the loss of power of self-control that can be reasonably expected in the case of a normal person having regard to the exact nature of the grave and sudden provocation caused.”[33] However, this can be regarded as flawed and unfair to certain social groups on a few grounds.

Firstly, with such a law in place and with its interpretation equivalent to “words may be met by words and fists by fists” it implies that a person who uses force that was not proportionate to the provocation does not qualify to avail the defence.[34] In sensitive cases where there has been a history of domestic abuse, the person could also be provoked by verbal dialogue. In such a case, the person's mode of resentment will not fit the standard way of reacting which is acting in proportion to the provocation. The question that needs to be posed then is what form of resentment should take place on part of a woman if provocation is through words alone.

Additionally, in most cases, it may be unlikely that the female victim will use a proportionate amount of force to the provocative incident. There is a difference between how a person reacts to provocation from a stranger or a person on equal footing as compared to how a woman may have to react with her abuser, where a power-dynamic and fiduciary relation comes into play. The inherent reason for her tolerating abuse stems from the mindset that the husband exercises more power and control over her, and thus she is coerced into a subordinate position. Such a woman, after being pushed to a tipping point, may in that immediate moment have to retaliate with much more force to ensure her safety and subdue the man out of fear that he is physically stronger and can easily overpower her. If in that moment, she does not retaliate sufficiently enough, then it may intensify the abuse she faces and will reinforce the man’s dominance. Keeping in mind this frame of thought, the notion that the retaliatory act should be proportionate to the provocation is skewed as it fails to accommodate for such kinds of experiences and expressions of domestic abuse victims and hence should be inapplicable in such circumstances.


Therefore, we garner that the reasonable man’s standards cannot be applied both to men and women who are victims of severe domestic abuse because of the masculinist structure that it holds. There is much uncertainty and vagueness involved in every case and to equate a mental reaction of a reasonable man to an abused woman in the same situation seems prejudicial and highly insensitive. Just as the KM Nanavati case recognised that factors such as the “mental background created by previous acts can be taken for consideration” and that the “reasonable man, belonging to the same class of society as the accused” are important elements to note,[35] similarly, the objective test of a reasonable man needs to be widened so as to accommodate for domestically abused women who suffer from Battered Woman Syndrome. Over time, the law has certainly developed, and women have been given formal equality under it. Yet, even though feminist scholars and legal critics have asserted a more liberal and gender-neutral approach to the doctrine of grave and sudden provocation, it still imbibes masculinist origins and tends to favour the male gender.

Additionally, the implications are that it also imposes ill-founded restrictions on the rights of women, expressly to victims of domestic violence, discounting them from availing the defence due to the failure to account for their mode of reaction. Cases such as R v Mawgridge expose how the doctrine is blatantly sexist.[36] The accused had escaped conviction for murdering his unfaithful wife and the court had held that “jealousy is the rage of a man, and adultery is the highest invasion of property.”[37] This frame of thought reinforces archaic Victorian notions of a woman being considered merely as the property of her husband, consequently giving men a license to assert their power and dominance. Thus, when seen through the lens of intimate killings, the male motive mostly revolves around possessiveness while the female does it as a result of abuse and fear. Hence, this discrepancy should be translated into differential standards and treatment in courts for men as compared to female victims of domestic abuse. Especially considering the socio-cultural context of traditional Indian society where the patriarchal household and conventional gender roles warrant the woman’s inferior position, and in most cases she has no alternative source of refuge against her abusive husband, making her the real victim. In order to ameliorate these dire circumstances, legislative reform should be encouraged. The courts and the legal system need to realise the deficiencies in the current law in order to embody more gender-neutral values which will frame a better system of justice and provide adequate protection for every human being governed under it.

[The Authors are 3rd-year students at Jindal Global Law School.]

[1] Osborne’s Concise Law Dictionary, Sweet and Maxwell (12th edn, 2013). [2] Indian Penal Code 1860, s 300. [3] Indian Penal Code 1860, s 300. [4] BD Khunte v. Union of India & Ors (2015) 1 SCC 286. [5] Akhtar v. State AIR 1964 All 262. [6] Stanley M. H. Yeo. “Lessons on Provocation from the Indian Penal Code.” The International and Comparative Law Quarterly, vol. 41, no. 3, 1992, pp. 615–631. JSTOR, Accessed 23 Sept. 2020. [7] Akhtar v. State AIR 1964 All 262. [8] Adrian Williamson, “Gender and The Law of Provocation in The Long Twentieth Century” [2019] Women's History Review <> accessed 1 April 2020. [9] Ibid. [10] R v Holford: The Guardian, March 30, 1963; The Daily Mail, July 7, 2006, and DPP 2/3540. [11] Adrian Williamson, “Gender And The Law Of Provocation In The Long Twentieth Century” [2019] Women's History Review <> accessed 1 April 2020 citing R v Holford: The Guardian, March 30, 1963. [12] Wendy Chan, “A Feminist Critique of Self-Defence and Provocation in Battered Women's Cases in England And Wales” (1994) 6 Women & Criminal Justice <> accessed 2 April 2020. [13] Joan Smith, Misogynies (Faber & Faber 1989), 5–6. [14] Ibid. [15] Adrian Williamson, “Gender And The Law Of Provocation In The Long Twentieth Century” [2019] Women's History Review <> accessed 1 April 2020 citing R v Owen, reported in Wasik, ‘Cumulative Provocation’, 34. [16] R. v. Duffy, [1949] 1 All ER 932. [17] 'Provoked' Wife Loses Murder Plea” The Guardian (London July 30, 1991) 3 <> accessed May 30, 2020. [18] Wendy Chan, “A Feminist Critique of Self-Defence and Provocation in Battered Women's Cases in England And Wales” (1994) 6 Women & Criminal Justice <> accessed 2 April 2020. [19] Adrian Williamson, “Gender and The Law of Provocation in The Long Twentieth Century” [2019] Women's History Review <> accessed 1 April 2020. [20] Ibid. [21] Ibid. [22] Adrian Williamson, 'Gender and The Law of Provocation in The Long Twentieth Century' [2019] Women's History Review <> accessed 1 April 2020. [23] J. Horder, “Reshaping the Subjective Element in The Provocation Defence” (2005) 25 Oxford Journal of Legal Studies <> accessed 1 April 2020. [24] Lenore E. Walker, The Battered Woman Syndrome (Harper, 1980) 45. [25] R v Ahluwalia (1993) 96 Cr App R 133. [26] Lenore E. Walker, “Who Are the Battered Women?” (1977) 2 Frontiers: A Journal of Women Studies <> accessed 1 April 2020. [27] R v. Ahluwalia (1993) 96 Cr App R 133. [28] Alison Young, Imagining Crime (Sage 1992) 60-67. [29] Deb A, “Battered Woman Syndrome: Prospect of Situating It within Criminal Law in India” [2018] SSRN Electronic Journal <> accessed May 30, 2020. [30] Manju Lakra v. State of Assam: (2013) 4 GLT 333. [31] Keerthana Medarametla, “Battered Women: The Gendered Notion of Defences Available” (Manupatra) <> accessed March 30, 2020. [32] Hafizullah v. State AIR 1957 All 377. [33] Gurya Bucha v. State of Gujrat AIR 1962 Guj.39 at p.43. [34] Ulla Mahapatra v. The King A.I.R. 1950 Orissa 261, at p.264. [35] K.M. Nanavati v. State of Maharashtra [1962] AIR SC 605. [36] R v. Mawgridge (1707) Kel 119, at 137. [37] R v. Mawgridge (1707) Kel 119, at 137.

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