The Law of Provocation Under Indian and American Law.
By :Souvik Chatterji.
I. Introduction
This paper is about the law of provocation under Indian and American law.
It is primarily related to cases involving crimes of passion in relation to adultery.
Adultery is the offense of having sexual intercourse with a person other than the
lawful husband during the subsistence of marriage. Adultery is present in
different forms in both American and Indian society and it leads to crimes
involving heat of passion or provocation. The paper discusses how Courts
in both countries should handle these cases and do justice to the victim,
the defendant and the society as a whole.
Part II gives a background on the law of provocation under Indian and American
law. Part III argues that under American criminal law, provocation is a factor or
element which mitigates the offense of murder into that of manslaughter. The element of
deliberation is tested in cases of provocation. It is a scientific test which is well justified .
Part IV proposes that Indian law should take inspiration from American law in
bringing about the test of deliberation under Section 300 of the Indian Penal Code
( 1860) in the definition of grave and sudden provocation . Further, Indian courts
should not grant the defense of provocation in murder cases relating to adultery
unless grave and sudden provocation is proved by the standard proof of deliberation.
The purpose of writing this Research Paper on the law of provocation in cases
relating to adultery is to amend and reform the mental framework of courts in India
from being liberal to husbands to being strict to them because adultery is a specified
offense punishable under Indian Criminal law. India can take inspiration from
American law in setting up standards of proof of adequate provocation using the
test of deliberation. Under the Indian Penal Code, 1860 , provocation is an exception to
section 300 which reduces culpable homicide amounting to murder to culpable homicide
not amounting to murder. Established cases in India show that provocation is applicable
mostly in instances of adultery. Courts in India have generally been liberal to husbands
in murder cases where sight of adultery has justified provocation and reduced murder
into culpable homicide not amounting to murder.
According to section 497 of the Indian Penal Code ( 1860) , whoever has sexual
intercourse with a person who is and whom he knows or has reason to believe to be the
wife of another man, without the consent or connivance of that man, such sexual
intercourse not amounting to the offense of rape, is guilty of the offence of adultery , and
shall be imprisoned of either description for a term which may extend to five years , or
fine, or both . In such cases, the wife ( spouse) shall not be punishable as well as
an abettor.
In addition to the offense of adultery being specified under the Indian Penal Code,
the personal laws (laws relating to religious or customery practises
of the different communities ) in India consider adultery as a valid ground for
granting divorce to the aggrieved party in cases involving dissolution of marriage. So
there is no requirement of being extra liberal to husbands in cases relating to murder on
the ground of adultery to prevent the specified offense of adultery. The test of
deliberation can be a justified test which can distinguish cold blooded murder from
murder resulting from heat of passion and thereby do justice to the victim, the
defendant and the society as a whole.
II.Crimes of heat of passion in India and America
Provocation means the act of inciting another to do something to commit a crime.It
also includes words or actions that affects a person's reason and self-control causing the
person to commit a crime impulsively. Adequate provocation means something that
would cause a reasonable person to act without self-control and lose any premeditated
state of mind. The usual form of adequate provocation is the heat of passion. Under
American criminal law provocation can reduce a criminal charge from murder to
voluntary manslaughter. At common law mere language, however aggravating , abusive
, or indecent , is not regarded as sufficient provocation to arouse ungovernable passion
which will reduce a homicide from murder to manslaughter.It has to be associated
with actual or threatened assault, or to any indecent or provoking actions or gestures.
Under Indian criminal law the concept of provocation is dealt with under exception
to section 300 of the Indian Penal Code , 1860. It says 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. The mental background created by the
previous act of the victim may be taken into consideration in ascertaining whether the
subsequent act caused grave and sudden provocation for committing the offence. In K.M.
Nanavati v.State, the Judge said that the fatal blow should be clearly traced to the
influence of passion arising from that provocation and after the passion had cooled down
by lapse of time, or otherwise giving room and scope for premeditation and calculation.
It was also said by the judge that the mode of resentment should bear some proper
relationship to the sort of provocation that has been given.
In American criminal law, provocation is used as an exception to murder after testing
premeditation and deliberation. Provocation is a necessary element of voluntary
manslaughter , but provocation and passion must concur. The provocation must be
sufficient to produce the required degree of passion in an ordinary , average or
reasonable man. Premeditation is the thought of beforehand. Deliberation
means act done in a cool state of mind. Whenever there is premeditation and deliberation
the act cannot said to have been committed as a result of provocation. In State v.
Bingham,40 Wash App553(1985), it was said that premeditation is a separate and
distinct element of first-degree murder. It involves mental process of thinking over
beforehand, deliberation, reflection, weighing or reasoning for a period of time, however
short, after which intent to kill is formed. In People v. Morrin, ,it was held that there was
no requisite deliberation or premeditation as elements of first –degree murder, so the
accused was convicted for second –degree murder. The mitigating circumstances would
have included an adequate legal provocation. In this case the accused was compelled by
the victim to do sexual act and the accused in self defense reacted with thongs found in
the car and killed the victim.
Under some definitions of manslaughter, adequate provocation is an element of the
Crime. Under other definitions, however, while a killing was intentional and unlawful,
provocation justifies a voluntary manslaughter conviction, not because provocation is
an additional element of the crime, but because it negates the malice element of the
greater offense of murder. In any event, a homicide is treated as voluntary
manslaughter rather than murder only when all the elements concur, and neither
passion alone , however violent , nor provocation alone , however adequate will have
this effect.
The main distinction between Indian and American law on provocation lies in the test of
deliberation. In American criminal law, a lot of emphasis is given on the timing in
relation to the act. In other words, the time that elapsed between provocation and the
commission of the act determine the fact whether the killing is done with intention or
sudden heat of passion. If there was time for deliberation then the plea of provocation
fails. It is because the provocation has to be adequate to cause the reasonable person to
lose self-control. If there was sufficient time for cooling off then even there was
provocation, the person could have regained his senses and not committed the act in heat
of passion.
In Indian criminal law, the element of deliberation is not tested to such extent.
Provocation is just an exception which reduces the crime of the accused from culpable
homicide amounting to murder to culpable homicide not amounting to murder. The test
of grave and sudden provocation is whether a reasonable man, belonging to the class of
society as the accused , placed in the situation in which the accused was placed would be
so provoked as to lose his self control. Words and gestures may also , under certain
circumstances , cause grave and sudden provocation to an accused as to bring his act
within the act of culpable homicide not amounting to murder. Besides the physical and
temperamental peculiarities of the accused is not taken into consideration under the
Indian law.
It has been emphasized that a gross disparity between the provocation
and the retaliatory violence may disclose a malicious mind which would exclude a
mitigatory defense. The Indian law had traditionally been kind to the husband who
discovers his wife committing adultery and kills either her or the person she is engaged
with or even both. This early lenient attitude to the husband in such situations had been
designed by the idea that adultery constituted an infringement of the husband's property
interest in his wife. And the leniency of the law is confined to situations where a strictly
legal marital tie existed between the offender and the woman he killed.
In State v. Boya Munigadu, the accused has seen the deceased having sexual
intercourse with his wife. Had he killed him at this stage, there would have been no
doubt that the plea of provocation would have been available to him , because in India
it has been recognized that the sight of adultery of his wife is the highest form of
provocation a man could receive.The next morning without having been served breakfast,
he saw his wife feeding the man.He took a bullhook and killed the man.In allowing his
plea of provocation in appeal, the Judge Muthuswamy Aiyer said that the act of adultery
in this case was that of grave provocation, but it was not sudden provocation due to the
lapse of time. The act of the wife feeding the deceased, could not have been act of grave
provocation.But the Court considered the mental picture of adultery revived by the
accused by the sight of his wife feeding the deceased as sufficient provocation. Here a
subjective test was applied in that the mental state of the accused and his previous
experience were taken into account in not placing too strict an emphasis on the element
of suddenness required by the law.
If the same incident took place in United States of America, the accused would not
have been justified in using in the defense of provocation in mitigating his offense.
There was lapse of time between the period when the provocation did arise and the
the act being done. So the test of deliberation would have prevented the accused
of using the defense of provocation and he would have been convicted for committing
murder.
At the sametime Indian Courts had not been lenient to cases where adultery did not
take place in respect of wife. In confession of illicit intercourse by a woman who was not
the accused's wife but only engaged to be married to him where she was killed by the
accused , the plea of provocation had failed. A man in love with a woman might be so
angry as to lose control of himself at the sight of her engaged in sexual intercourse with
another, but if he kills one or both of them he cannot plead grave provocation in
mitigation of his offense. Then law that, when a husband discovers his wife in the act of
adultery and thereupon kills her, he is guilty of manslaughter and not murder , has no
application where the woman concerned is not the wife of the accused.
Some of the decided cases can explain the Indian law on provocation more clearly.In
State v. Balku, the accused and his wife's sister's husband were sleeping on the same
cot ( charpai) in the verandah, and the accused's wife was sleeping in the adjoining
room. Sometime in the night the accused got up and peeping through a
chink in the door saw the wife's sister's husband and his wife having sexual intercourse .
The accused returned back to his charpai and lay down on the charpai by the side of the
accused. After a short time , when the wife's sister's husband began dozing, the accused
stabbed him several times with a knife and killed him. There was no evidence that the
accused had to go anywhere to search for the knife, which apparently was with him. It
was held that the case came within the exception , notwithstanding the interval of time
between the seeing of the act of adultery and the killing the victim, and the accused
having acted under grave and sudden provocation.
If the same incident took place in United States of America, the test of deliberation
would have prevented the accused of using the defense of provocation and would not
have mitigated the offense of murder into that of voluntary manslaughter. The test
would have been that of adequate provocation and not sufficient provocation.
In State v. Chanan Khan, a pathan father and his son and his son's wife had
contracted a liaison with a barber. One day, the father seeing the barber entering into his
house in his absence called his son who was nearby and both of them came to the house
and found the wife and the barber involved in sexual affair and killed both of them. It was
held that the exception of grave and sudden provocation was applicable to the case.
In State v. Yasin Shiekh, , the accused finding a man intriguing with his wife ,
beat him and after taking him to the bank of a river, cut off his head. It was held that the
exception of provocation will not work here because the accused did not kill him in heat
of passion. So it did not reduce the offense to culpable homicide not amounting to
murder.
In State v. Ghuntappa, the accused's concubine refused to abandon another
connection and the accused , after remonstrating with the woman and leaving her,
followed her and killed her with a dagger which he had purchased with the intention of
killing her. It was held that the exception of provocation does not apply in this case
because the act did not take place in a heat of passion. There was premeditation and
intention of killing . so the accused was convicted for committing murder.
In State v. Mohan , the accused suspecting infidelity in his wife , followed her
with a Hatchet on one night when she stealthily left his house , and finding her talking to
her paramour , there and then killed her. It was held that the accused did not respond to
sudden provocation and as such should be convicted for committing murder.
In State v. Lochan, the accused suspecting the widow of his cousin, followed her
one night with a sword in hand, to a considerable distance, and finding her actually
having connection with her lover killed her there and then.It was held that the offense of
murder was being committed. No doubt in all these cases there was provocation , but the
acts were not committed while the accused were deprived of the power of self control ,
they were not the offspring of the moment , but were the result of cool and mature
consideration after the first excitement had passed away.
But Indian Courts did not use the test of deliberation in cases relating to adultery
like the Courts in the United States of America to determine whether there was
adequate provocation or not. The test in a number of cases could have given a
different judgement than it was given in the previously mentioned cases.
III.Test of deliberation in American Cases
If we look at American cases, a lot of emphasis is given on the concept of deliberation
and time. In other words ,the time when the provocation was made and the time
when the defendant acted upon such provocation determines whether the act was an end
result of the provocation or it was a predetermined planned action for murder.
In Stevens v. State , , it was said that if a wife has been suspected by her husband
of infidelity , and sometime thereafter she stated to him that she had been guilty of
adultery , and expressed an intention to see her paramour again, and if thereupon her
husband seized a gun and killed her, such facts were not sufficient , under Penal Code
1910, section 65, to authorize the submission to the jury of the theory of voluntary
manslaughter, though a charge on that subject was requested. The evidence of the state
showed a plain case of murder. Section 65 of Penal Code 1910 says that in all cases of
voluntary manslaughter , there must be some actual assault upon the person killing, or an
attempt by the person killed to commit a serious personal injury on the person killing, or
other equivalent circumstances to justify the excitement of passion , and to exclude all
idea of deliberation or malice, whether express or implied. Provocation by words, threats, ,
menaces, or contemptuous gestures shall in no case be sufficient to free the person killing
from the guilt and crime of murder.
In State v. Cooley, defendant shot and killed victim as she sat at their dinner table.
At trial , defendant claimed the gun fired accidently while he was showing the victim that
it was unloaded. There were no witnesses to the killing, but two of the couple's three
young children were in the home at the time of incident. One of the children testified that
the defendant and the victim were " fussing" throughout the day. The defendant accused
the victim of having an adulterous affair. At one point in the afternoon , the defendant
went outside, fired his shotgun into the air, and then returned to threaten the victim
stating " that's how it will be" and " I am not playing with you. I will shoot you." The
argument continued just before the fatal shooting of the victim. It was held that the trial
judge in this case should not have given a voluntary manslaughter jury charge because
the record contained no evidence to support a finding of sufficient legal provocation.
While adultery may in some instances , serve as sufficient legal provocation to warrant a
voluntary manslaughter charge, spousal adultery is not a license to kill. Further in this
case there was even no evidence of adultery other than the testimony of the defendant.
And a verbal confession of adultery, no matter what the content , would be is insufficient
to warrant a voluntary manslaughter charge.
In State v. Gadsden , the defendant and his wife, donise, had been separated
for two to three months prior to her death. Defendant said that he and his
wife had reconciled but were not openly living together. Jerry Robinson , a Gadsden
family friend, testified that Gadsden's family spent the evening prior to Donise's death
urging Gadsden not to kill Donise. Kimberley Simmons , who lived in the apartment
next to Donise Gadsden, testified that she arrived home at approximately 1 am on the
morning on the date of the incident.She heard an argument and screams coming from
Gadsden apartment. The pathologist estimated death at approximately 1.30 am on that
Dayand there were fourteen stab wounds , three of which penetrated Donise's body
cavity . Ray Gadsden says a different story. He said that Donise called him and asked
him to spend the night on the evening of the incident. He arrived at her apartment . They
spend a quite evening and went to sleep. Then she woke him and asked him to leave. He
got dressed and left. He waited outside until a man arrived. He entered the apartment and
found Donise and the man, partially clothed , sitting on the bed. Gadsden told the man to
leave. An argument ensued between Gadsden and Donise. Gadsden went to the kitchen
and got a knife , started stabbing the couch. When Donise came he stabbed her twice and
left the apartment. The jury found the defendant guilty of murder and not voluntary
manslaughter. The fact that the defendant waited for the spouse to commit adultery and
then killed her show that there was premeditation and planned desire to kill the wife.
American jurisprudence explains law of provocation in a logical way. A victim's illicit
intercourse with the defendant's spouse may be sufficient provocation to reduce a
homicide charge from murder to voluntary manslaughter. However , the slayer must
have discovered the deceased in the very act of intercourse or immediately before or after
its commission , and the killing must have followed immediately on detection and must
have been committed under the influence of the passion engendered by the discovery. If
the homicidal act is not committed until after there has been time for passion to cool and
for reason to assert itself , or if the slayer , although he strikes and kills immediately, is
not moved thereto by heat of passion, but by prior malice, hatred, or desire to avenge the
wrong done him , or by other motive, or upon any design whatever except such as is
presently engendered by the paroxysm of rage into which he is thrown by the extreme
provocation, he is guilty, not of manslaughter, but of murder. Thus , where a killer,
suspecting his or her spouse of adultery, lays in wait or searches for the guilty embrace,
the crime of murder will not be reduced to voluntary manslaughter. It has also been held
that discovering one's spouse in an embrace with a lover will not constitute adequate
provocation to rebut malice and reduce a murder to manslaughter simply because , at
some earlier time, the spouse had committed adultery with that lover.
In general , the degree of homicide in any particular case depends upon the intent,
purpose, or design of the defendant , and it is the element of malice which distinguishes
murder from manslaughter. Thus, while murder is regarded generally as the killing one
human being by another with malice afterthought, either express or implied, a homicide ,
even though intentional , is regarded as the lesser crime of voluntary manslaughter where
the killing was committed under the influence of passion produced by an adequate or
reasonable provocation and before a reasonable time has elapsed for the passion to cool
and reason to assume control, the killing not being the result for wickedness of heart or
cruelty or recklessness or disposition.
In Jackson v. State , it has stated that where a husband finds his wife at night in
companywith a man, and the wife then and there discloses to the husband that she is
guilty of acts of infidelity, and that the man in whose company she is her paramour, and
that she intends to continue her acts of infidelity and lascivious intercourse with the man
in whose company she is found, and the husband , in the heat of passion excited by the
words and conduct of his wife , shoots and kills her, on the trial of the husband under
indictment charging him with the offense of murder, the jury , if they believe the
circumstances were such as to justify the excitement of passion, and that the defendant
was not actuated by malice or a spirit of revenge , would be authorized to find the
defendant guilty of voluntary manslaughter.
The present legal thinkers in the United States of America are looking at the
doctrine of provocation from a reformative view. If life tells us that crimes of passion are
the sorbid affairs and bedside confrontations, reform tells us that law's passion may be
something quite different. Reform had permitted the jurists to return manslaughter
verdict in cases where the defendant claims passion because the victim left, moved the
furniture out, planned a divorce, or sought a protective order. Nourse Victoria, had done a
survey of cases relating to provocation in trial and appellate courts in the U.S. between
1980 to 1995. In some of the cases the defendant got enraged because his wife had
filed divorce papers. In some of the cases , the defendant came upon his ex-wife
and her boyfriend after 8 months after they have separated for good and 2 months
after their divorce had become final. So provocation as a form of self defense even
in United States of America have proved in the recent past to be a devise which
strengthens the tendency of husbands in losing self control and thereafter taking
law into their own hands while addressing the issue.
Besides reform has acknowledged and encouraged women's freedom to divorce
and separate. Reform of the passion defense has yielded the opposite result. It generally
had resulted in binding women to the emotional claims of husbands and boyfriends
long ago divorced or rejected. The most concerning fact is that where there is scope
of the spouses getting separation under American laws relating to divorce, why
should the law on self defense be strengthened to that extent whereby the husbands
can take law into their own hands on mere grounds of heat of passion. The reason
why the above statement is made is because in majority of cases the effect of heat
of passion relating to provocation has been the death of the wife or the adulterer.
IV.India can introduce the test of deliberation in crimes relating to heat of passion.
The Indian scenario is a bit different. Although the aspect of provocation in relation
to adultery is a subject primarily related to criminal law, but it has relationship
with personal law. Therefore there is no requirement of the Indian law to
strenghthen the self defense relating to heat of passion unnecessarily. In India
personal laws are generally divided into Hindu law, Muslim law, Christian law
and Parsi law. Hindu law again applies to Buddhists, Jains , Sikhs ( other faiths
within India) because they have originated from Hinduism and people
worshipping those religions are also considered Hindus.
The personal laws generally create provisions relating to marriage, divorce, adoption,
maintenance, guardianship, etc. Some of the laws are the products of
legislations and others are the products of religious texts.The Hindu law can be taken
as a reference because that is the predominant law followed by majority of Indians as
Hindus are a majority in the country. There was time the Hindus believed that
marriages were arranged in heaven, and it is used to be a relation of flesh with
flesh and bone with bone. And every Hindu wife used to say that in the next
"janama" ( life) if both the persons are born with the same sex they should
marry again. So the question of separation from each other was a far cry.But slowly
and steadily this concept did not find favour with social reformers , who wanted that
a woman must not be chained with a man who is completely devoid of all the virtues
that a reasonable should have.The British Government tried to make radical changes
in the provisions of Hindu law, although Hindu reformers agitated against such
changes from time to time.
The Hindu Marriage Act, 1955 came into existence, eight years after the
independence of the country. Section 13 of the Hindu Marriage Act , 1955 deals with
the grounds on which the parties can seek a decree of divorce from a competent court
having jurisdiction to entertain such petition. According to H.L. Mencheh , adultery in
the literal sense means " an application of democracy to love". Adultery includes the
offense of incontinence by married persons.One general intercourse after the
solemnization of marriage is sufficient to make a case. It is very difficult to
produce direct evidence to prove an act of adultery. Adultery is a matrimonial as well
as a criminal offence.
The requirement of proof in a criminal case is stricter than the requirement in a
matrimonial case. In the former case the act is to be proved beyond reasonable doubt,
whereas in the latter the evidence is based on the inferences and possibilities.The Madhya
Pradesh High Court in Hargovind Soni v. Ram Dulari , had held that it is no longer
required that adultery must be proved beyond all reasonable doubts , it can be established
by preponderance of possiblities. It includes (a) circumstantial evidence, (b) evidence as
to non-access and birth of a child , (c) evidence of visits to brothels, (d) contracting
venereal diseases , (e) confession and admission to parties and (f) preponderance of
probability.
The personal laws are important pieces of legislation thereby governing the life of the
people who follow the related law. The laws are designed to see that the individuals
have proper rules relating to the personal affairs throughout their life and on which the
life of the children are also dependant once they are born out of the wedlock of the
related parents. Most of the rules are related to each other. For example divorce is related
to marriage in case after some period of stay it becomes impossible on the part of the
husband and the wife to live under the same roof. At the sametime maintenance is an
aftermirth of marriage.
In a number of cases of divorce in India , the wives and the children do not have
their independent source of income. So if the Learned Court decides that the parents
should be separated, the Earning spouse is expected to provide maintenance ( monetary
allowance) to the dependant spouse and child according to the amount that the Court
thinks to be just and proper. The Courts generally look at the income of the solvent
person, the condition of the spouse and the child to make its decision relating to the
amount of maintenance that is granted. At the sametime custody of child becomes an
issue after divorce is granted to the spouses.
The courts have to determine the best interest of the child before granting custody to
either the father or the mother of the child. All these critical issues relating to the
private life of the individuals are governed by the personal laws in India.
But in all the personal laws adultery is considered as a valid ground under which
divorce can be obtained by either of the spouses. The only thing is that the party (
husband or the wife ) who is asserting the ground of adultery has to prove adultery in a
court of law. So in case the husband discovers there is relationship of his wife with
another person, and he loses self control due to the discovery he can use the rage in his
legal process towards separation after having a dialogue with his wife , rather than
using the same loss of self control in committing homicide to the wife or the person
with whom she is engaged. At the same time adultery is itself an offense punishable
under the Indian Penal Code( 1860).So in case the husband is aggrieved by the act
of the third person who has infringed into his marital home, he has the option of
taking the legal recourse, that is filing a criminal case of adultery against the said
person and thereby punishing the accused of the offense he has committed.
By strengthening the law of self defense relating to provocation the Indian courts
for the last 100 years have softened their stand on the husbands who have lost
self control and committed homicide on their wives or the adulterer. There are
cases where adequate provocation was considered as a self defense by the
Indian courts in reducing murder to culpable homicide not amounting to murder.
Actually Indian law require a stronger approach in respect of use of the defense of
provocation. The Indian Penal Code was enacted around 150 years back and there
was a concept existing at that point that wife is the property of the husband. So
invasion of the property had satisfied the requirement of grave provocation in cases
relating to adultery. But in recent times the concept had changed. A person cannot
be given liberty to kill an adulterer on the reasoning that he had invaded into the
marital relationship. Nor is the test enough whether there was sufficient provocation
or not.
Indian law can borrow the American concept of test of deliberation in
cases relating to adultery. The reason is that it reduces the tendency of people in
taking law into their own hand. Although under Indian philosophy marriage is
considered to be a sacrament. It is not a contract. The husband and the wife should
think a number of times before entering into the marital bond. But once marriage is
solemnized there is responsibility on the part of both the spouses to adjust, compromise
throughout their life to maintain the marital home. In that respect the adulterer is
considered to be a person who invades into such a relationship and requires no mercy
at all. At the sametime 150 years back most of the wives in India did not have their
independent income to maintain themselves.
Under Indian philosophy it used to be thought that a wife cannot get involved with a
third person other than her husband unless the adulterer seriously compels her to get
involved with him. That is not the situation now. In urbanized cities in majority of
families both the husband and wives are earning. In the metropolitan areas and semi-rural
places wives are economically independent. So they can take independent decisions. In
these situations the role of the adulterer cannot be considered to be so dominant as it used
to be considered 150 years back.
Besides in recent cases there are instances where the husband does not treat the wife
well and involves in a relationship which compels the wife to get involved with third
person .In those cases if the plea of provocation is given same amount of weightage
then the offenders get undue privilege in terms of less amount of punishment with the
defense of the plea of provocation.
V.Conclusion
In conclusion it can be said that the law of provocation in India require a strict and
and justified test to be used as a means of self defense in murder cases relating to
adultery. American criminal law has set up standard of deliberation which separates
a cold blooded murder from a murder committed in heat of passion. Indian criminal
law ( the Indian Penal Code, 1860) can be amended to insert the test of deliberation under
Section 300 in the definition of grave and sudden provocation. At the sametime the
changing norms of society in India, with the advent of liberalization, economic
independence and changing times should be given importance while deciding cases
relating to adultery where the offender had done the act in heat of passion due to
provocation.
Legislations are passed and laws are created for the benefit of mankind. So
while determining the test of provocation in cases relating to adultery the Courts
in India should also look at the beneficial aspect of the law. It should not
encourage human beings to take law into their own hands and in case the offense
of adultery is done in the presence of the aggrieved party at least patience should
be shown to take the recourse of law, the procedures established by law for the
remedy available for the time being in force. The ultimate aim is to reduce
the offense of adultery in the society and reduce violence arising due to the
occurrence of adultery. Peace in the matrimonial home can ensure peace in the
society as a whole.
BIBLIOGRAPHY:
1) The Indian Penal Code by Dhirajlal K.T. and Ratanlal Vakil, 23rd edition, 1962,
Published by the Bombay Law Reporter Office.
2) Lawschool.westlaw.com – the most comprehensive website for law.
3) Lexisnexis for Law School.
4) Murder and the reasonable man: passion and fear in the criminal courtroom. By
Cynthia Lee. 2003 edition. New York University press publication.
5) Nourse Victoria. " Passion's progress. Modern law reform and the provocation
Defense". Yale Law journal, v.106 issue 5, 1997, p.1331-1448.
6) Provocation: Objective test: Precedent , By Warburtan , Damien. Journal of
Criminal Law, Feb.2006, Vol. 70, Issue 2 , p.121-126
7) Black's Law Dictionary, 8th edition 2004.
8) www.ourkarnataka.com/Articles/law/divorce1.htm
