Guest Post: Lessons From Abroad — R v Tran and Provocation in India

(This is a guest post co-authored by Varshini Sudhinder and Jibraan Mansoor)

SATURNINUS: Because the girl should not survive her shame, And by her presence still renew his sorrows; 

OTHELLO: I will chop her into messes! Cuckold me?; 

Introduction

Shakespeare’s cuckold has been a prominent theme in various works such as, The Merry Wives of Windsor, Cymbeline, and The Winter’s Tale. But what was supposed to be a literary feature has often made inroads into the halls of justice. For instance, in R. v. Mawgridge [(1707) Keil. 119], Judge Holt wrote,“[A] man is taken in adultery with another man's wife, if the husband shall stab the adulterer, or knock out his brains, this is bare manslaughter: for Jealousy is the Rage of a Man and Adultery is the highest invasion of property”. It is not uncommon to find Indian courts reaching the same conclusions. For instance, when in C. Narayan (1958 Cri LJ 476) a wife was strangled to death by her husband after she confessed her adultery, and in Murugian (AIR 1957 Mad 541) when a husband killed his wife in response to her defiance about her adultery, in both these cases courts agreed that this was not murder as the accused had acted under provocation.

In this post, we attempt to re-complicate some of these conclusions. Borrowing from the Canadian experience we argue that at the heart of the “provocation for adultery” question rests a need to carefully balance human frailty with considerations of sexual autonomy. The post broadly covers four aspects. First, we briefly explain how Indian law has come to understand provocation and we identify certain issues which remain unanswered. Second, having identified the issue, we discuss the Canadian case of R v. Tran (2010 SCC 58) [Tran], to understand how the Canadian Supreme Court has made attempts to resolve these issues. The third section showcases a possibility of using the Canadian decision to good effect in the Indian Context. Finally, we discuss how Indian courts might consider changes to granting provocation in cases of adultery at a time when adultery is no longer a crime per se. 

Indian Courts, and Provocation as an Exception to Section 300

The statutory text of provocation needing to be “grave” and “sudden” tells us barely half the story; judicial decisions have added a great deal of nuance in applying this test. Stanley Yeo, in his paper, Gravity Of Provocation Revisited, having analysed the Indian experience, suggests that the judicial inquiry into a provocation plea involves first analysing if a “reasonable man” would be so provoked, when placed under a similar situation, to lose his self-control like the accused. After such an examination, and seeing if the accused did the same, we need to trace the fatal blow to the “influence of passion” which arose from the provocation, and not after having sufficient time to “cool down”, to prevent any scope of premeditation.

However, as R.V. Kelkar in his paper, Provocation as a defence in the Indian Penal Code notes, the judiciary has not always clarified things. One of the main reasons for this is the acceptance of the objective standard, that of a reasonable man, to analyse the defence of provocation. Using the “reasonable man” standard can lead to a lot of problems because the associated characteristics of a reasonable man have not remained consistent over time, as courts have acknowledged that obviously no person is ideally reasonable, and in fact is associated with “mistakes” and “defects”.

The canonical Nanavati (AIR 1962 SC 605) highlighted the need for the “reasonable man” to belong to the same class category and social realities, as the accused, to bring within it the “emotional background” of the social class to which the accused belongs. The court associates this reasonable man with certain characteristics, customs, manners, ways of life, etc. Some courts over the years have reinterpreted “reasonable man” to be an “ordinary” or “normal” one. Yeo stresses on the relevance and the importance of doing something like this because all persons are differently placed and come from diverse backgrounds. According to him, an accused’s characteristics may be of relevance either if the provocation was directed at particular characteristics of himself/herself; or, if the accused belonged to a class of persons who tend to possess self-control which is less than others.

Even though the above discussions are important as they recognise the need to account for human frailty, yet they also raise concerns about not allowing sexual autonomy to women. More broadly, they make one wonder that if we allow for the “sudden and grave” provision to be exercised by those in power, then do we completely dismiss the normative horizons that criminal law seeks to achieve by altering individual behaviours? So, will the Indian Jurisprudence allow a defence of provocation to an ultra-conservative Hindu belonging to a culturally sensitive class who murders a Muslim offering Namaaz in front of them? Further, to what extent can psychological factors which do not directly harm one, can become justification for the person to employ the defence of provocation? In order to address some of these questions, at least in the context of adultery, we undertake a comparative jurisdiction analysis, or “lessons from abroad”, by analysing the Canadian Supreme Court in Tran, and try to analyse the applicability of the Canadian Court’s decision in the Indian context.

R v Tran and New Beginnings 

The facts of R v Tran (2010 SCC 58) are straightforward. A man estranged from his wife snuck into their former home to discover her in bed with her new lover. He then flew into a rage, fatally stabbing his estranged wife’s lover with a knife, while also harming his estranged wife with that weapon. While there were various aspects in the decision which have interesting implications — how the court read the facts to understand “sudden” — for our purpose, the court’s assessment of what constitutes as a harm enough to allow for provocation is central. 

The court explains that the “… ordinary person standard must be informed by contemporary norms of behaviour…”, but these must not derogate the fundamental values of equality (the court refers to the Canadian Charter of Rights and Freedoms) and the “accused must have a justifiable sense of being wronged”. The court gives examples of how it would be apposite if the “ordinary person” included the relevant racial characteristics, had they been at the receiving end of a racial slur, but not homophobic characteristics had they been the recipient of a homosexual advance. Furthermore, it held that “there can be no place in this objective standard for antiquated beliefs such as ‘adultery is the highest invasion of property’ nor indeed for any form of killing based on such inappropriate conceptualizations of ‘honour’.”

We see in this decision that the court is making a conscious attempt to limit the attribution of certain characteristics in determining whether provocation took place. More specifically, the Court is acknowledging that they have to balance between accounting for human frailty and justice. It is trying to denude the power differentials that are ascribed to people just by virtue of their birth and belonging, as opposed to individual choices. Furthermore, the court by recognising that the “accused must have a justifiable sense of being wronged”, seeks to highlight that there ought to exist some legitimate harm, wherein legitimate has to be understood as a normative exercise constrained by institutional principles — which was accrued to the accused for the partial defence to be granted. But can we reconcile this approach with the manner in which we historically understand provocation as a category, i.e., if provocation is to be understood as a psychological question accounting for human frailty in the Indian experience, would placing social normative values be a plausible exercise? 

Is R v Tran possible in India?

Botswana’s High Court in State v. Segana Seleke [1974 (1) BLR 102 (HC)] made certain interesting observations about the Indian experience. While the court recognised that the English experience has applied “considerations of social morality to what in the final analysis is a psychological problem”, but in “many jurisdictions in India such a distinction, [issues] based wholly on the question of whether or not a relationship sanctioned and approved by the law exists between the accused and the other party to the adultery, is not countenanced.”

This observation of Botswana's court can be re-affirmed by (Kota) Potharaju [AIR 1932 Mad 25]. Here the accused found his “mistress ... in the arms of a former lover, lest control of himself and stabbed her”. The Madras High Court accepted a plea of provocation and held: “One cannot supply considerations of social morality to a purely psychological problem. The question is not whether the appellant ought to have exercised, but whether he lost control over himself. When a man sees a woman be she his wife or his mistress, in the arms of another man he does not stop to consider whether he has or has not the right to insist on exclusive possession of her person … she is a woman, of whose person he desires to be in exclusive possession and that is, for the moment, enough for him”.

This case was contested in Murgi Munda [(1939) ILR 18 Pat 101], where prevalent custom dictated that any unmarried man and woman may cohabit with each other, but if the woman is impregnated by a man, he must marry her. In this case, the deceased, Gansa, used to be in that kind of a relationship with Bandai, and when he moved away, she and Murgi entered into a relationship. The night when Murgi found Bandai and Gansa together, he killed the latter in rage, and then pleaded provocation in the Court.

Justice Fazl Ali and Justice Agarwal held that they disagreed with (Kota) Potharaju, since, “the mere fact that a person’s desires are thwarted does not in law justify him killing the person who is thwarting him. The provocation which is mentioned in the 1st exception to section 300, Penal Code, is something which is recognized as provocation in law and not merely something which arouses the uncontrollable anger of a particular individual.” Further, “In the case of a wife the position is entirely different. The law recognizes that a husband is entitled to expect fidelity from her”. And in the present case, their relationship was not one where Bandai owed him any form of fidelity. 

Murgi Munda further cited Palmer [(1913) 2 K.B. 29] to justify the need for fidelity in order to explore the nature of relationships which legitimately allow the defence of provocation. Palmer is important since the Court of Criminal Appeal held, “… the relation between the parties was not that of husband and wife, nor was it a case of unmarried persons living together as husband and wife. They were simply persons who were in the position of being engaged to be married. Under those circumstances if the effect of the summing up was to leave the jury under the impression that they could not properly find a verdict of manslaughter we think that it was right.” In both Murgi Munda and Palmer, we notice how the courts are eager to distance themselves from the kind of reasoning seen in Potharaju, as the courts are highlighting that there are certain relations which aren’t socially perceived as being as sacrilegious as others, and hence shouldn’t be entitled to the defence of provocation. Immediately, one suspects of whether the Indian courts are completely treating provocation as a psychological issue to begin with or not. Further, one wonders how Murgi Munda’s decision which relied upon the law recognising the husband’s entitlement of fidelity from his wife, would change after Joseph Shine [AIR 2018 SC 1676].

The second engagement between the High Courts which is relevant for the current issue can be seen by analysing Murugian and Jairam Chandrabhan. In Murugian [AIR 1957 Mad 541], Basheer Ahmed Sayeed J. observed, "But it should be noted that these decisions apply to the society in England and countries of western culture and civilization. It is well known that in western societies, marital laws and violations thereof are looked upon with such (sic) greater latitude and the award of damages in Civil Courts would constitute sufficient redress. Adultery is not made punishable as it is in our country where a more serious view is taken of offences against marital rights." However, in Jairam Chandrabhan [AIR 1959 Bom 463], where the accused murdered his wife as he saw her enter someone else's house and when confronted told the accused that she'd continue engaging in the relationship, the court disagreed with Murugian. The court held that “In our opinion, it would be extremely hazardous to apply the First Exception to Section 300 to a case of the kind we have here merely on the ground that offences against marital rights are made punishable by the law in India ... Bearing in mind the fact that adultery though frowned upon in our country is not uncommon in the village community and bearing also in mind the fact that even before the law made a provision for obtaining a divorce, a customary form of divorce has prevailed in the village communities, it would not be right to hold that the reaction of an Indian spouse from such a community would be different from that of one in the western countries.”

The court subsequently held that the offence would not constitute “grave and sudden provocation” for the accused to be given the partial defence from 300. Even though the court in Jairam Chandrabhan does not explicitly denounce adultery, it is anxious to allow violation of marital rights from becoming the sole ground for allowing for the partial defence to be granted. So instead of following the reasoning seen in R v Tran, the court tried to ignore the Indian courts’ approach of “cumulative provocation” and held that mere exchange of words between the accused and his formerly deceased wife—completely ignoring the act of adultery itself—couldn’t constitute as “grave and sudden” provocation. Even though Jairam Chandrabhan could be accused of compounding the confusion as it erodes “cumulative provocation”, the importance of this case is a) in its ability to recognise that violation of marital rights might not be enough to constitute provocation and b) given the widespread norm of adultery, the anxiety of male heterosexual violence which might be perpetuated if the partial defence is guaranteed. [Note: Jairam Chandrabhan also becomes important for it subtly challenges the assumption about the various attributes of the “ordinary person” (by questioning the distinction between village communities and western countries), while Indian courts attempt to be sensitive to cultural contexts. However, the implications of this observation are beyond the scope of this post.]

Indian courts have not resolved these questions directly and have more often than not continued to allow for adultery to be a ground for provocation. But from the above discussions, if there is a possibility of social morality becoming the guiding force of what we consider as “provocation” enough, it might be so that today when adultery is no longer a crime following Joseph Shine, instances of adultery in some cases might not be enough to be treated as an exception to 300.

Joseph Shine’s impact on Provocation

The main focus in Joseph Shine was constitutional questions posed by the adultery offence (Section 497 IPC) Even so, the various opinions made some extremely important remarks about how questions of adultery are in essence gendered questions concerning monogamy, sexual subjugation and treatment of women as property. For instance, Chandrachud J. noted that, “throughout history, adultery has been regarded as an offence; it has been treated as a religious transgression, as a crime deserving harsh punishment, as a private wrong, or as a combination of these”, and further, ”To fully recognise the role of law and society in shaping the lives and identities of women, is also to ensure that patriarchal social values and legal norms are not permitted to further obstruct the exercise of constitutional rights by the women of our country.”

While Section 497 IPC operated in clear gendered differentia, it might not be too difficult to claim that provocation as a defence in cases of adultery has empirically more often than not been used by men. By the court recognising that adultery being treated as a harm enough is an impediment to constitutional rights of women, one cannot help but wonder whether allowing adultery to be a provocation “grave” enough, ends up embedding the same stereotypes which allow for exercising control and dominion over a woman’s body? 

We are even more afraid when we take into account the importance that the judiciary has attributed to notions of property over the years. For example, in a case like Muthu, [(2007) 12 SCALE 795] where the victim was killed for merely throwing garbage into the property of the accused, we see the Court allowing provocation to be granted to the defence. Just like Muthu, we are worried that the courts are yet again placing undue premium on conception of property, especially from a man’s perspective, as opposed to recognising or at least deliberating the question of a woman’s control over her autonomous body. 

Framed otherwise, the above discussion leads to two questions: (1) While historically adultery had connotations of property, can we now move to a place wherein we recognise adultery as an autonomous private decision, and thereby limit the attribution of psychological provocation that courts have historically undertaken, and (2) Keeping in mind Palmer, Jairam Chandrabhan, Murgi Munda line of cases and R v Tran, do Indian Courts need to re-assess the question of provocation by recognising the need to balance human frailty with the normative horizons that criminal law wishes to achieve by altering human behaviour? These are both questions which the courts have to engage with seriously, for us to be able to have a just, clearer and more concrete understanding of provocation, as seen in exception to 300.