The Authors, Jeba Boktiar Mondal and Pallavi Singh are 3rd Year Law Students of Presidency University,Bangalore.
Cultural crimes are basically the crimes that seek to place within the context of culture or under the head of it. As we all know recently; there has been a spate of honour killings which has shocked the country. An “honour killing” is a murder committed against a woman for actual or perceived “immoral” behaviour that is deemed to have breached the ‘honour code’ of a household or community. These so called ‘honour codes’ are the product of deeply rooted patriarchal social and cultural prejudices, whereby women are perceived and forced to bear all responsibility for maintaining communal honour. ‘Honour killings’ are an extreme and brutal abuse of human rights, violating the most basic of human rights, the right to life.
Introduction
As we all know recently; there has been a spate of honour killings which has shocked the country. Honour killing is one of the types of cultural crime present in the country. An honour killing (also called a customary killing) is the murder of a (typically female) family or clan member by one or more fellow (mostly male) family members, in which the perpetrators (and potentially the wider community) believe the victim to have brought dishonour upon the family, clan, or community.
Reasons for honour killing
The main reason for commitment of an ‘honour killing’ is belief that any member of family had brought dishonour to the family. The dishonour can be of different types for different families. The perceived dishonour is normally the result of the following behaviours, or the suspicion of such behaviours, which are dress codes unacceptable to the family/community; or wanting to terminate or prevent an arranged marriage or desiring to marry by own choice; or engaging in certain sexual acts, including those with the opposite or same sex, etc.
Also the most obvious reason for this practice to continue in India is because of the fact that the caste system continues to be at its rigid best and also because people from the rural areas refuse to change their attitude to marriage. Also in our country the society is mainly the patriarchal. Men are expected to enforce such norms and traditions and protect family and male honour from shame. Women are expected to conduct themselves honourably. This understanding of the notion gives legitimacy to all forms of social regulation of women’s behaviour and to violence committed against them.
Existing Penalties under Indian Penal Code
Sections 299-304: Penalizes any person guilty of murder and culpable homicide not amounting to murder. The punishment for murder is life sentence or death and fine. The punishment for culpable homicide not amounting to murder is life imprisonment or imprisonment for upto 10 years and fine.
Section 307: Penalizes attempt to murder with imprisonment for upto 10 years and a fine. If a person is hurt, the penalty can extend to life imprisonment.
Section 308: Penalizes attempt to commit culpable homicide by imprisonment for upto 3 years or with fine or with both. If it causes hurt, the person shall be imprisoned for upto 7 years or fined or both.
Section 120A and B: Penalizes any person who is a party to a criminal conspiracy.
Sections 107-116: Penalizes persons for abetment of offences including murder and culpable homicide.
Section 34 and 35: Penalizes criminal acts done by several persons in furtherance of common intention.
Section 300: introduce “fifthly” clause to Section 300 of IPC which at present defines “murder” under four categories. The additional definition would make khap-dictated honour killings a distinct offence and make all those who participate in the decision liable to be tried for the main charge, that is murder, and liable maximum penalty, death.
Arguments favoring new law
Making the crime of honour killing a separate offence would help bring more clarity for law enforcement agencies. One of the proposals is to amend the Indian Evidence Act to put the burden of proof on the accused. Thus, the khap panchayat or the family members would be responsible for proving their innocence. There would be joint liability under the proposed new law. Since Honour Killings /Honour crimes are not separate crime and hence we don’t have any data. New law will provide mandate for special police cell in each district to provide protection to couples.
It will also mandate the different state government and the Centre to work on sensitization of the law enforcement agencies. The new law will mandate social initiatives and awareness to curb such violence through social means. Honour crimes should include all the crimes against women which are perpetrated by the community. There are many cases of women being branded witches, paraded naked, tortured in public which are very heinous offences of honour and hence need to be strengthened by a special law and to have stringent punishments. Having a special law can be deterrent.
Arguments against new law
The existing penalty for the offence of murder is sufficient if they are implemented strictly and effectively. A new set of laws would not deter honour killings because the basic issue is social sanction for acts committed to curtail same gotra marriage, inter-caste marriage, inter-religion marriage.
Need for creating awareness among traditional communities through education. Holding khap panchayats collectively accountable can be detrimental to members who do not support such killing. Also, it could be misused for vindictive agendas.
CASE LAWS
JYOTI ALIAS JANNAT AND ANOTHER VS STATE OF UP AND OTHERS
According to Indian Majority Act 1875 a person who is 18 years of age is a major vide section 3 of the Act. The law deems that a major understands his / her welfare. Hence a major can go wherever he /she likes and live with anybody. India is a free, democratic, welfare country. Hence if a person is major even parents cannot interfere with that individual. Once a person becomes a major that person cannot be restrained from going anywhere and live with anyone. Individual liberty under Article 21 has the highest place in the constitution.
SHIV KUMAR GUPTA ALIAS RAJU VS STATE OF UP AND ORS 1999 LUCKNOW LAW REPORTER JOURNAL
Rani Gupta moved the court claiming her father was forcing her to marry a boy she disliked. Of her own free will she entered into marriage with a person of her choice. The Court accepted that she was a major and Rani was given the opportunity of making her statement to the court on her choice. The court stayed the arrest of her husband stating that the personal liberty of Rani Gupta should not be interfered with.
Conclusion
Normally in a country where there is rule of law, the customary laws should not be given much value over the codified laws in matters of such heinous crimes like ‘honour killing’. Hence the penal actions should be imposed seriously over the perpetrator with the help of various provisions of Indian Penal Code, 1862, and Constitution of India. These measures will definitely help to reduce the spate of honour killings.
Honour killing is done for saving the honour of the family. But there is no such honour in killing any person. ‘Religion’ and ‘culture’ cannot and must not be invoked as excuse for the killing of women, because religion and the laws which derive from it are always subjective interpretations. No ‘culture’ has the right to kill and harm women based on their perceptions of morality or honour. The freedom of belief does not mean freedom to kill. Everyone has right to life with full dignity and equality. Hence active laws are the only antidote to such dishonourable practices
Picture Source :
