Defending a wife who killed her husband: gender justice in defence of provocation in Sri Lanka

Abstract

Murder is an unjustifiable killing according to its legal definition. However, the Penal Code of Sri Lanka identifies some murderous acts of an accused where those can be considered as ‘justified kill’. A murder committed due to sudden and grave provocation is one of them. The conjunction ‘and’ is interpreted in the law of Sri Lanka as to generate the meaning of ‘associated with’. In order to this interpretation, defence of Provocation in Sri Lanka has failed to cover the situations where a woman kills her husband due to prolonged trauma resulting from his abusive ill-treatment towards her. In the meanwhile, the Prevention of Domestic Violence Act which is gender-neutral, also failed to recognise the same since its dependency on Penal Code. This woman is known as the ‘Battered woman’, and the said term originated from a psychological trauma known as the ‘Battered Woman Syndrome’. The primary objective of this paper is to recognise the Battered Woman Syndrome as a mitigatory defence in offence of Murder. The major part of the study is followed by adopting a doctrinal methodology by evaluating the secondary sources. However, in the concluding remarks, the author has conducted an empirical research by having interviews with psychologists and women's rights activists to affirm the main arguments presented. Throughout the research, the author has suggested valuable recommendations to be incorporated into the criminal justice system such as, broadening the scope of the defence of provocation and domestic violence in light of prescribed international standards, considering the bio-social perspectives before deciding a guilty mind of a woman, and incorporating rights-based reform systems and gender sensitive penalties for the female accused. As the advancement of women depends both on the ‘difference’ and ‘sameness’ approach, extending the same to the protection of a battered woman is essential for the growth of both gender and criminal justice.