‘Honour Killing’, a term that is good enough to strike fear into the hearts of millions, and more vividly, the inter-caste, inter-creed, inter-community or inter-religious couples who are planning to elope, get married and begin a life of their own. It is a term which, erroneously in the opinion of some, is used to define the act of murder of those who dare to challenge the accepted norms of marriage and marry against the wishes of their respective families, outside their caste or creed or community or religion that exist in the villages of developing India. Surprisingly, the problem has also been revealed to have struck deep roots among the city-bred, educated populace as well. It seems that though India has taken an economic plunge with the advent and growth of western technology, a large section of the Indian population is yet to accept the liberalization of Indian culture, vide the influence that is being exerted upon it by the western culture, at the hands of the young (and mostly educated) couples who are ready to compromise or to do away with their caste or creed or community or religious identities in order to get a suitable soul-mate of their own choice.
Before delving further into the problem of ‘honour killing’ as it exists in the Indian sub-continent and as well as in some of the middle-eastern and north African countries, I would like to address the concerns of those who do not agree to the general definition of the term, as has been laid down in the first paragraph of this article. There are basically two groups of people who oppose the definition given above. The first group comprises of those people who believe that by defining ‘honour killing’ as only those crimes which involve the murder of couples who marry against what is considered to be the age old custom of marrying according to the wishes of their respective families and in accordance with the local rules and customs in this regard, is akin to denying the real expanse of the crime. This is because, they argue, that the killing of, especially female relatives, for the commission of adultery or pre-marital sex or even the killing of female relatives or foetuses just because they belong to a particular gender (female foeticide), also amounts to ‘honour killing’. The main motive behind the commission of such crimes, after all, is to ‘retrieve the family honour’ that the male relatives consider to have been lost due to the actions of the female relatives or by their very birth or conception. The second group comprises of those people who oppose the very coinage and usage of the term ‘honour killing’, stating that no matter why a person is killed, it does not, in any way, re-instate the family honour that is supposed to have been lost by any action of the person concerned. This section of the populace is very much against the use of the term ‘honour’ along with the term ‘killing’, since, according to them, no ‘killing’, no matter what the provocation is, can be honourable to say the least. According to them, the term ‘honour killing’ is a misnomer.
Since this article is about the crime of honour killing,
[1] we shall stop short of discussing about the views of the latter group (without denying the fact that their views are of no less importance, and equally respectable), regarding whether the term honour killing is a misnomer or not and whether it is okay to use the term. Also, the issue of female foeticide, in which the excuse of ‘disgrace to the family honour’ has a major role to play, itself being a very large issue, shall not be discussed about in this article. The issues of ‘honour killing’ due to inter caste or inter-creed or inter-community or inter-religious marriages (as is more prevalent in the Indian sub-continent) and the killing of female relatives, and sometimes, their lovers as well, for the commission of such actions by them as are considered to be ignominious to the family honour (as is more prevalent in the Middle East and certain north African countries where caste and creed based differentiation is almost non-existent) and the laws concerning them, shall be discussed at length in this article.
This crime has been around for quite some time now. However, it got recognized by the Indian society as a crime separate from that of murder, pretty recently. There are, however, no separate legal provisions in India, which deal exclusively with the crime of honour killing. Instances of honour killing committed within India, continue to be treated as individual cases of murder and has been in the headlines of every vernacular and English daily and periodicals and has also been the subject matter of Indian movies
[2] off late.
INDIA
Instances of honour killing in India, have been majorly reported in the northern regions of the country, especially in the states of Uttarakhand, Punjab, Haryana and Rajasthan and also in the ‘Hindi heartland’ states of Uttar Pradesh and Bihar. Punjab has probably been one of the most notorious states in this regard. According to data compiled by the Punjab Police, 34 honor killings were reported in the state between 2008 and 2010: ten in 2008, twenty in 2009, and four in 2010.
Over the years there have been many such cases, which have come out into the open and hogged the media limelight. Of such cases, one of the most famous and recent ones would be the one involving the gruesome honour killing of a daughter by her own father.
[4] It was not a case of the daughter marrying someone from a different caste or community, against the wishes of her family. It was rather, a case wherein the father, Shri Bhagwan Dass, had been annoyed at his daughter’s decision to leave her husband Raju and live in an incestuous relationship with her uncle, Sriniwas, a cousin of Bhagwan Dass. This infuriated Bhagwan Dass, the appellant in the case before the Supreme Court, as he thought that the above stated conduct of his daughter Seema, had dishonoured his family, and hence he strangulated her with an electric wire. The trial court convicted the appellant and the judgment of the trial court was upheld by the High Court. While delivering its judgment on the 9
th of May, 2011, the Supreme Court stated that both the trial court and the High Court had given very cogent reasons for convicting the appellant, and hence, it saw no reason to disagree with their verdicts. It further stated that there was overwhelming circumstantial evidence to show that the accused committed the crime as he felt that he was dishonoured by his daughter. For the above stated reasons, the Court found no force in the appeal and dismissed it accordingly. The Supreme Court referred to its judgment in the case
Arumugam Servai Vs. State of Tamil Nadu,
[5] pronounced on 19.4.2011, and re-iterated that in India, unfortunately, ‘honour killing’ had become common place. That many people felt that they were dishonoured by the behaviour of the young man or woman related to them or belonging to their caste, because he or she married or had an affair with someone against their wishes and age old local traditions, and hence they developed a tendency to take the law into their own hands and kill or physically assault such person or persons or commit some other atrocities on them.
Then there was the case which is more famously known as the Manoj-Babli honour killing case.Manoj and Babli belonged to the Banwala gotra, a Jat community, and were therefore considered to be siblings even though they were not directly related. As a result, any union between them would be invalid and incestuous according to the Dharmashastras, the Hindu texts of conduct and law. Nevertheless the couple went ahead with their marriage, following which, their killing was ordered by a
khap panchayat (
khap), a religious caste-based council among the Jats, in their Karora village in Kaithal district, Haryana. In furtherance of the order, the newlyweds were abducted and killed by Babli’s relatives. In March 2010, a Karnal district court sentenced the five perpetrators to be executed. The khap head who had given the order but did not take part in the killings, received a life sentence, and the driver involved in the abduction got a seven-year prison term.
[6] The judgment delivered by the trial court was appealed against at the Punjab and Haryana High Court, which admitted the appeal on 13th May, 2010. The Punjab and Haryana High Court, vide its judgment delivered on 11
thMarch, 2011, commuted the death sentence awarded to four of the convicts, to life imprisonment, while it acquitted the prime conspirator and another convict.
In
Lata Singh Vs. State of U.P. & Anr.,
[8] the Supreme Court, while delivering its judgment on 7
th July, 2006, had clearly stated that ‘honour killing’ was wholly illegal. In the above stated case, the persons concerned had been receiving threats and they, along with their relatives, were being harassed by those who were accused. However, the couple had not been murdered. The Apex Court declared that if someone was not happy with the behaviour of his daughter or son or other person, who is his relation or of his caste, the maximum that he could do is to cut off social relations with her or him. But, under no circumstance, could he be allowed to take the law into his own hands by committing violence or giving threats of violence to the couple concerned.
In
Sujit Kumar And Ors. Vs. State Of U.P. & Ors.,
[9] the Supreme Court, while delivering its judgment, stated that since the petitioner Shri Sujit Kumar, who was a Jat by caste, and his partner, who was a Tyagi by caste, were majors and that they loved each other and were married to each other and were living together of their own free will, the couple’s parents had no right to be putting pressure on them to give divorce to each other and to be issuing threats to kill them if the couple refused to abide by their orders. Taking cognizance of the fact that the couple had fled from Meerut to Muzaffarnagar due to such life threats that had been issued against them by their families, and that they were living in hiding in order to escape the wrath of their respective families, the Supreme Court declared that India being a free, democratic and secular country, the Court would not permit practices like honour killings or harassment to such couples to prevail in the country. The Supreme Court directed the police of Meerut and Muzaffarnagar to ensure that the petitioner and his wife were not harassed in any manner by anyone.
The worst thing about honour killing in India is that, unlike its next door neighbor Pakistan, India has no separate provision in its criminal laws to deal with cases of honour killings. As has been stated earlier in this article, instances of honour killing committed within India, continue to be treated as individual cases of murder.
PAKISTAN
The evil practice of honour killing also looms large in India’s immediate neighbourhood, i.e. in Pakistan, to be precise. Pakistan is home to one of the highest number of honour killings in the world. In 2002 alone over 382 people, about 245 women and 137 men, became victims of honor killings in the Sindh province of Pakistan.
[10] Over the course of six years, more than 4,000 women have died as victims of honor killings in Pakistan from 1999 to 2004.
[11] In 2005 the average annual number of honor killings for the whole nation was stated to be more than 10,000 per year.
[12] Locally, honour killings are known as ‘karo-kari’ in Pakistan.
[13] There have been cases wherein teenage girls have been reportedly buried alive, for refusing to marry according to the wishes of their family or for marrying against the wishes of their respective families,
[14] while cases like those of Tasleem Solangi and Mukhtaran Bibi came to the fore.
It was alleged that Tasleem Solangi, an 8 months pregnant Pakistani teen from Khairpur, was forced to give birth prematurely and then was thrown in front of a pack of dogs, because her father-in-law claimed that the child she was expecting was out of wedlock.
[15] Purported allegations of infidelity and adultery against her were enough for the in-laws, in cohorts with the local populace, to mete out this depraved form of tribal justice. Perpetrators of this barbaric act are yet to be captured by the local police even though the accused, while labeled as absconded, had openly issued threats to kill the lynched teen’s mother. The baby, meanwhile, was disposed off in a canal. The girl’s father, Gulsher Solangi, though claimed that the killing was the culmination of a land dispute surrounding his family’s 2.4-hectare farm.
[16]He further added that his nephew had beaten Taslim throughout the five months of their marriage to pressure him to hand over his small farm.
In Mukhtaran Bibi’s case,
[18] the victim was not killed or murdered as such. But she was brutally gang raped in the guise of protecting the honour of a clan. Mukhtaran Bibi, also known as Mukhtar Mai, is from the village of Meerwala, in the rural
tehsil (county) of Jatoi of the Muzaffargarh District of Pakistan. She was a victim of a gang rape as a form of ‘honour revenge’, which was committed in accordance with the orders of an Akhat Panchayat of the local Mastoi Baloch clan that was richer and more powerful as opposed to her Tatla clan in that region. The rape of Mukhtaran Bibi got widespread media coverage. The case eventually went to trial, and her rapists were arrested, charged and convicted by the Anti-Terrorism Court, until an appeals court, i.e. the Lahore High Court, overturned the convictions. A three judge bench of the Supreme Court of Pakistan, comprising of Mian Shakirullah Jan, Nasir-ul-Mulk, Mian Saqib Nisar, JJ.,
later acquitted all but one (i.e. Abdul Khaliq, the ‘main accused’) of those who were accused, vide its judgment delivered on 21
st April, 2011. That, despite the Supreme Court having espoused a Suo Moto action against all the accused, vide an order dated 14.3.2005.
According to various non-governmental reports, majorly by the Human Rights watchdogs in Pakistan, thousands of women are killed in the pretext of saving the family or clan or community’s honour. But, unfortunately, many times it so happens that the killing of women in “honour” killings are recorded as having committed suicide or died in accidents.
In order to deal with this problem, the Islamic Republic of Pakistan amended its Penal Code of 1860, vide the Criminal Law (Amendment) Act, 2004, and added the definition of ‘offence committed in the name or on the pretext of honour’ to section 299 of the Code, which is the definition clause of Chapter XVI of the Code, that deals with the ‘Offences affecting the human body’.
Section 2 of the Criminal Law (Amendment) Act, 2004, stated that ‘In the Pakistan Penal Code, 1860 (Act XLV of 1860), hereinafter referred to as the Penal Code, in section 299, after clause (i), the following new clause shall be inserted, namely:-
(ii) “offence committed in the name or on the pretext of honour” means an offence committed in the name or on the pretext of karo kari, siyah kari or similar other customs or practices.’
Moving a step further, section 3 of the Amendment Act also amended section 302 of the Pakistan Penal Code, which deals with the punishment for the offence of Qatl-e-Amd (murder). Section 302 of the Code, originally stated that:-
‘Whoever commits qatl-e-amd shall, subject to the provisions of this Chapter be:
| (a) | punished with death as qisas; |
| (b) | punished with death or imprisonment for life as ta’zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in Section 304 is not available; or |
| (c) | punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the injunctions of Islam the punishment of qisas is not applicable.’
|
There developed a tendency among those found guilty of having committed honour killing, to plead that the punishment of qisas was not applicable to them as per the injunctions of Islam, and thereby escape with the least punishment that can be meted out to the guilty under section 302, as per clause (c) of the same section. A need was felt to prevent those guilty of having committed an honour killing from escaping the harsher provisions of the law, by citing Islamic injunctions that were supposedly applicable to their respective cases. Hence, the provison stating that ‘nothing in this clause shall apply to the offence of qatl-i-amd (murder) if committed in the name or on the pretext of honour and the same shall fall within the ambit of (a) and (b), as the case may be’, was added to clause (c) of section 302 of the Pakistan Penal Code, 1860. This had the effect of making it clear that the only punishment that could be handed down to the persons found guilty of having committed the crime of honour killing, was either the death penalty or life imprisonment, in accordance with clauses (a) and (b) of section 302 of the Code.
As has already been stated earlier, in the Middle East and the north African countries that have been referred to in this article, ‘caste equations’ are inconsequential, i.e. caste and creed based differentiation is almost non-existent, since the dominant religion in that region is Islam,
[20] which doesn’t recognize or encourage the concepts of caste and/or creed and any kind of differentiation based on it.
According to the report of the Special Rapporteur in 2002, concerning cultural practices in the family that reflect violence against women,
[21] there had been contradictory decisions with regard to the honour defense in Brazil. The report further stated that the legislative provisions allowing for partial or complete defense in that context could be found in the penal codes of many countries.
It was seen that most of the middle-eastern and some of the north African countries have laws or judicial interpretations of the laws, that allow the killing of female relatives by their menfolk, for crimes of being in love or crimes of passion, such as committing pre-marital sex or adultery.
The source for most of the laws in the middle eastern and north African countries, that legalise honour killings in one way or the other, stem from the Napoleonic Code of 1810, which served as France’s Penal Code till it was repealed, and the penal laws of the erstwhile Ottoman empire. The laws that serve as the ‘antecedents’
[22] of these cruel, ancient and obsolete laws prevailing in the Middle East and certain north African countries, are:-
FRANCE
Article 324 of Penal Code 1810
(Repealed by Article 17 law no.617/75 of 7/11/75)
324. Murder, committed by the husband, upon his wife, or by the wife, upon her husband, is not excusable, if the life of the husband or wife, who has committed such murder, has not been put in peril, at the very moment when the murder has taken place.
Nevertheless, in the case of adultery, provide for by article 336, murder committed upon the wife as well as upon her accomplice in flagrante delicto,
[23] in the house where the husband and wife dwell, is excusable.
OTTOMAN
Article 188 of Penal Code 1858
He who has seen his wife or any of his female mahrams
[24] with another in a state of disgraceful adultery and has beaten, injured, or killed one or both of them will be exempted. He who has seen his wife or one of his female mahrams
with another in an unlawful bed and has beaten, injured or killed one or both of them will benefit from an excuse.
JORDAN
The Jordanian law, as it stands, appears to condone the practice of honour killing.
According to Article 340 of the Jordanian Penal Code:
‘1. There shall be a benefit from the mitigating excuse whosoever surprises his wife or one of his ascendants or descendents in the crime of adultery or in an unlawful bed, and kills her immediately or kills the person fornicating with her or kills both of them or attacks her or both of them in an assault that leads to death or wounding or injury or permanent disability.
2. Shall benefit from the same excuse if the wife who surprises her husband in the crime of adultery or in an unlawful bed in the marital home and kills him immediately or kills the woman with whom he is fornicating or kills both of them or attacks him or both of them in an assault that leads to death or wounding or injury or permanent disability.
3. The right of lawful defence shall not be permitted in regard to the person who benefits from this excuse nor shall the provisions of “aggravated circumstances” apply.’
This text of article 340 was introduced by Temporary Law no. 86 of 2001.
[25] Previously it read as follows:
i) He who surprises his wife, or one of his female mahrams committing adultery with somebody, and kills, wounds, or injures one or both of them, shall benefit from the exculpating excuse.
ii) He who surprises his wife, or one of his female ascendants or descendants or sisters with another in an unlawful bed, and he kills or wounds or injures one or both of them, shall be liable to a lesser penalty and shall benefit from the mitigating excuse.’
This Article in the Penal Code, is almost in direct contravention of Article 6, clause (i) of the Constitution of The Hashemite Kingdom of Jordan, 1952, which states in clear and unambiguous terms, that ‘Jordanians shall be equal before the law. There shall be no discrimination between them as regards to their rights and duties on grounds of race, language or religion.’
Furthermore, article 98 of the Penal Code, is almost always cited alongside Article 340 in cases of honour killings. It has been a further encouragement for potential perpetrators and a stumbling block in the road to punish the perpetrators. According to Article 98, ‘He who commits a crime in a state of great anger resulting from a wrongful and dangerous act on the part of the victim shall be liable to a lesser penalty in view of extenuating circumstances.’ Past judgments show such cruel acts are often legally put down to a ‘fit of fury’. In one such case a man killed his unmarried cousin a month after learning she was pregnant. The court found “losing his temper” was justified because she had “brought disgrace to her family”.
In addition to these direct encouragements present in the Jordanian Penal Code, many families entrust their sons under the age of 18 to kill female relatives in the name of family honour.
[27]This is because, the juvenile law of Jordan commits minors to a juvenile centre, which releases them back into society with a clear criminal record at the age of 18 after receiving an education or vocational training. As a result, this law, which gives much reduced punishments to juveniles, serves as a sort of a relief to the young perpetrators of the crime of honour killing in Jordan. According to legal experts, these articles simply create legal loopholes, which allow such heinous crimes to continue unchecked in Jordan.
There are no accurate statistics on the number of honour crimes committed in Jordan annually, but according to a report by the Christian Science Monitor in March 2005, honour crimes account for one-third of all violent deaths in Jordan.
This runs counter to the perception of Jordan as one of the most liberal countries in the Middle East, where gender discrimination is officially minimal; women have voting rights, are present in parliament and government and hold influential positions in other sections of the society.
Statistics on the number of honour crimes that occur in Jordan vary from one source to another and there is a problem in collecting data because of fear of retaliation by family members. The Ministry of Interior’s official statistics on honour killings throw little light on the extent of the practice. There were 15 honour killings out of a total of 125 murders in the country in 2002.
[30] However, the Jordan Times newspaper reported higher numbers than the government; 19 in 2001 and 22 in 2002.
[31] Media house Aljazeera reported that there have been at least seven cases of honour killings in Jordan in 2003,
[32] a year in which Jordan’s Parliament rejected the senate’s recommendation to uphold a law providing stiffer penalties for men who kill women in the guise of protecting the family’s honour.
The then parliament voted to ‘reject’ an amended Penal Code law which was passed by the Government during parliament’s absence in 2001, stipulating harsher punishment for perpetrators of honour killings. Sixty of the 85 deputies present in parliament voted to reject the amendments. Most of the deputies, who voted to reject the amendments, were of the view that the amendments were superficial and did not deal with the root of the issue.
[33]Some of the deputies, who spoke against the cancellation of Article 340, said the draft was ‘legalizing obscenity’.
SYRIA
According to the old Article 548 of the Syrian Penal Code, before the amendments were effected on 1
st July, 2009
[35], ‘He who surprises his spouse or one of his ascendants or descendants or his sister committing adultery or illegitimate sexual acts with another person and he unintentionally kills or injures one or both of them benefits from an exemption of penalty.’
Furthermore, according to the Article, ‘The perpetrator of the murder or injury shall benefit from a reduction in penalty if he surprises his spouse or one of his ascendants, descendants or sister in a “suspicious” situation with another.’
Along with Article 548, there is also Article 192, according to which, ‘If the judge establishes that the motive for the crime was honourable, he will apply the following penalties: in place of the death penalty, life imprisonment; in place of hard labour for life, life imprisonment or imprisonment for 15 years.’
To add to it, Article 242 of the Code states that, ‘He who commits a crime in a state of great anger resulting from a wrongful and dangerous act on the part of the victim shall be liable to a lesser penalty’. For the record, extra-marital affairs are illegal in Syria.
On July 1, 2009, President Bashar al-Assad abolished Article 548 of the Penal Code,
[36] which had waived punishment for a man found to have killed a female family member in a case “provoked” by “illegitimate sex acts,” as well as for a husband who killed his wife because of an extramarital affair. The article also lowered penalties if a killing was found to be based on a “suspicious state” concerning a female family member. The article that replaced it still allows for mitigated punishment for “honor killings,” but requires a sentence of at least two years.
According to the amended Article 548, ‘He who catches his wife or one of his ascendants, descendants or sister committing adultery (flagrante delicto) or illegitimate sexual acts with another and he killed or injured one or both of them benefits from a reduced penalty, that should not be less than 2 years in prison in case of a killing.’ It is quite understandable that two years is better than no punishment at all. But then, two years is hardly enough, as a punishment for the commission of a crime as grave as murder.
As in the case of Jordan, a contradiction exists between certain provisions of the Syrian Constitution and Article 548 of its Penal Code, as far as the special protection given to men in honour killing is concerned. Article 25 of the Constitution of the Syrian Arab Republic deals with ‘personal freedom, dignity and equality of the citizens’. It is stated in Article 25(3) that ‘The citizens are equal before the law in their rights and duties.’ It is clear from clause (3) of this article that the constitution calls for equal rights being given to all citizens, including women. Moreover, Article 45 of the Constitution, which deals exclusively with women, states, ‘The state guarantees women all opportunities enabling them to fully and effectively participate in the political, social, cultural, and economic life. The state removes the restrictions that prevent women’s development and participation in building the socialist Arab society.’
Though, unfortunately, these constitutional provisions delving upon the equality of both the sexes, remains mostly restricted to the Constitution itself… at least as far as laws relating to honour killing in Syria is concerned.
The legal provisions dealing with honour killing in the other countries of the Middle East are:-
ALGERIA
Article 279 Penal Code 1991:
Murder, wounding and beating shall be subject to excuse if committed by one spouse against the other spouse or against his/her partner at the moment of surprising them in the act of adultery.
EGYPT
Article 237 Penal Code (no.58 1937):
He who surprises his wife committing adultery and immediately kills her and the person committing adultery with her, shall be liable to a prison sentence instead of the penalties provided for in Articles 234, 236.
Article 17:
In crimes requiring the sympathy of the court, the judge can reduce the penalty in the following way: in place of capital punishment, permanent or temporary hard labour.
IRAQ
Article 409 Penal Code 1966:
Whosoever surprises his wife or one of his female mahrams in the act of adultery or finds her in one bed with her partner and kills them immediately or kills one of them, or attacks both or one of them in an assault that leads to death or permanent disability, shall be punished by prison for a period not exceeding three years. Use of the lawful right of defence is not permitted against whoever benefits from this excuse and the rules of aggravating circumstances shall not be applied against him.
RCC Resolution No.49 of 2001:
“absolutely absolves from liability a man who kills or attempts to kill another who has raped or forced a blood relative of the killer to have sexual intercourse with him. Further and by way of protection to the killer, should he become the victim of revenge, such revenge will be deemed an aggravating circumstance.”
RCC Resolution No.6 of 2001:
“provides that when a man kills his wife or a blood relative by reason of a crime of honour and then kills another person who taunts the killer and imputes dishonour then the second crime will be deemed to be subject to an extenuating circumstance. Any one who kills the said killer will be subject to a death sentence.”
KUWAIT
Article 153 Penal Code:
He who surprises his wife in the act of adultery or surprises his daughter, mother or sister in the act of sexual intercourse with a man, and immediately kills her or the man who is committing adultery or having sex with her or kills both of them shall be punished by prison for a period not more than 3 years and a fine of not more than 3000 dinars or by one of these two penalties.
LEBANON
Article 562 Penal Code 1943 (as amended 1983, 1994, 1995, 1996 and 1999):
Whosoever surprises his spouse or one of his [female] ascendants or descendants or his sister in the crime of adultery or in a situation of unlawful sexual intercourse, and kills or wounds one of them unintentionally shall be liable to a lesser penalty [in view of extenuating circumstances].
This provision was amended on 10th February 1999; until then it had read as follows:
1. He who surprises his spouse or one of his [female] ascendants or descendants or his sister in the crime of adultery or in a situation of unlawful sexual intercourse and unintentionally kills or injures one of them shall benefit from exemption of penalty.
2. He who kills or injures if he surprises his spouse or one of his [female] ascendants or descendants or his sister in a suspicious situation with another shall benefit from a reduction in penalty.
Article 252:
Whosoever commits the crime in an outburst of extreme anger resulting from a grave and unlawful action of the victim shall be liable to a lesser penalty.
Article 193:
If the judge establishes that the motive was honourable the following penalties shall apply: life imprisonment instead of capital punishment, etc.
The motive is honourable (sharif) if it is characterised by chivalry and decency and free of [the taint of] selfishness, personal considerations and material gain.
Article 253:
If there are mitigating circumstances in the case, the court shall rule as follows: instead of the death penalty, heavy labour for life or for a period of 7-20 years; instead of life imprisonment, prison for not less than 5 years; and the court may reduce every other penalty in the case of a felony to three years if its minimum penalty is more [than 3 years], and may reduce the penalty by half if the minimum penalty is not more than three years, or may with a reasoned decision give a sentence of at least one year, unless it is a repeated offence.
OMAN
Penal Code Article 252:
He who surprises his wife committing adultery or surprises his mother or his sister or his daughter in an unlawful bed, and immediately kills or injures her or kills or injures the person committing adultery with her or in the bed with her, or kills or injures both of them, may be exempted from liability or be liable to a reduced penalty according to the provisions of article 109 of this law.
Article 109:
In the case of exemption liability there shall be no penalty, while in the case of liability to a lesser penalty [in view of extenuating circumstances] the penalty shall be reduced as follows:
1. if the action is a felony giving rise to the capital punishment or life imprisonment it shall be reduced to prison for at least one year;
2. if the action is another felony it shall be reduced to prison for six months to one year.
UAE
Article 334 of Penal Code 1978:
He who sees his wife, daughter or sister committing adultery and kills her immediately or kills the person committing adultery with her or kills both of them, shall be punished with a prison sentence; and if he attacks her or them in an attack that leads to death or disability he shall go to prison.
If a wife surprises her husband in the crime of adultery in the marital home and kills him immediately or kills the woman with whom he is committing adultery or kills both of them, she shall be punished with a prison sentence; and she shall go to prison if she attacks him or them in an attack that leads to death or disability.
The exercise of the right of lawful defence shall not be used against a person benefiting from this excuse.
YEMEN
Article 232 of Penal Code 1994:
If a husband kills his wife and whoever is fornicating with her at the moment of their adultery, or if he attacks them in a manner that leads to death or disability, no option of qisas
[38]arises; the
husband shall be penalised by imprisonment for a period of not more than one year or by a fine. This ruling
applies also to a person who surprises one of his ascendants, descendants or sisters in the act of illicit
fornication (
zina).
The present laws or recently repealed laws in the some of the north African countries, with regards to honour killing, are/were:-
TUNISIA
Article 207 of Penal Code 1991 (repealed):
Murder by a husband of his wife or her accomplice at the moment that he catches them in the act of adultery is punished by five years in prison.
The above stated exception has been abrogated by law, in 1993. Any man who murders his wife, even if it is for the sake of ‘honour’, is now liable to death penalty.
MOROCCO
Penal Code 1963, Article 418:
Lesser penalties [in light of extenuating circumstances] shall be applied to crimes of murder, wounding or beating, when committed by a husband against his wife and her partner when he surprises them in the act of adultery.
Article 420:
Lesser penalties [in light of extenuating circumstances] shall apply to crimes of wounding and beating without intent to kill, even if death does [in fact] result, if committed by the head of a family against persons whom he has surprised in his house in a situation of unlawful sexual intercourse.
Article 422:
No reduction in penalty may be applied in the crime of murder of ascendants.
Article 423:
When the legal excuse [of extenuating circumstances] is established the penalties shall be reduced to:
1. prison from one to five years in the case of felonies punishable in law by capital punishment or life imprisonment;
2. prison for 6 months to 2 years for all other felonies;
3. prison for one to three months in cases of misdemeanors.
LIBYA
Penal Code Article 375:
Whosoever surprises his wife, daughter, sister or mother in the act of adultery or in illegitimate sexual intercourse and immediately kills her or her partner or both in response to the assault that has affected his honour (sharaf) or the honour of his family, shall be punished by a prison sentence. If the act leads to grave or serious injury of the said persons in these circumstances, the penalty shall be prison for not more than two years. Mere beating or light injury in such circumstances shall not be penalised.
Thus, it can be concluded in short, that no matter how civilized the international society claims to have become in this 21st century, it still has a long way to go in order to be able to completely reign in acts of honour killing, which are a blatant and gross violation of the basic human rights.
Certain administrative and legal actions and decisions are ought to be taken immediately, at least as far as India is concerned, in order to contain and restrict, if not eradicate, the offence of honour killing from within the country. Laws regarding honour killing, especially in the backdrop of the fact that even India’s neighbor from the sub-continent, Pakistan, has come up with its own laws in this regard, are compulsorily and immediately required to be enacted. The laws concerning honour killing should be made by Commissions headed by ex-Supreme Court Chief Justices or Justices of Supreme Court and other social activists including legal researchers. A similar set up involving ex-High Court Chief Justices or Justices of the High Court and state based social activists and/or researchers should be set up at the states as well. Laws in this regard, should be made both by the centre and the states and the subject of legislation should be entered into the concurrent list of the Constitution of the Republic. It is imperative on the part of those made responsible for drafting any law to combat honour killing, to ensure that stringent punishment (amounting to capital punishment) for this crime is formulated, in line with the judgment of the Supreme Court in
Bhagwan Dass Vs. State (
NCT of Delhi)
[39], which is the latest judgment of the Apex Court in this regard.
Another important step would be to ensure that proper education is provided to the people among whom this practice is prevalent, while keeping in mind the social aspect of the crime and the support that it sometimes receives from the society or community concerned.
[40]Proper education would help them to come out of this medieval mindset and embrace modernity and liberalism with regards to inter-caste and inter-religious marriages, thereby preventing the repeated commission of such crimes. The suggestions and directions of the Supreme Court and/or any special commission set up in this regard may be prioritized.
Even the option of expanding the horizons of the Special Marriage Act, 1954, such that the registrars under the Act are given powers similar to that of the Protection Officers under the Domestic Violence Act, 2005, having the power to ensure that the threatened couples are provided with legal aid, police protection and safe shelters, should be looked into.
It is only such proactive steps in the direction of the elimination of honour killings that can help reduce its occurrence to a great extent.
