Repeated Refusal of Wife: A Mitigating Factor?

By- Oshi Priya

Introduction

India reports the highest number of acid attacks in the world with the least number of convictions. The graph of crime against women has seen an exponential rise in the past century. Acid attack, though not gender-specific, yet targets women in most of the cases. This crime is often used as an act of vengeance to disfigure or kill the victim. More often than not, the reasons behind the gruesome crime have been a turned down marriage or love proposals. Recently one such case came for consideration in the Tripura High Court. The case involved a husband throwing acid on his wife when she refused to return to her matrimonial home. In cases involving heinous crimes with an element of criminality against the society and not parties inter se, deterrence as a purpose of punishment become paramount.

So far, India has no statutory sentencing policy. The courts exercise wide discretion with respect to sentencing, which often results in immense disparity among orders of trial and appellate courts. Aggravating and mitigating circumstances are one such consideration made during the time of sentencing. As a result of the no sentencing policy, what qualifies as mitigating and aggravating factor is left at the discretion of the courts to determine. However, the question arises as to the fact that in the absence of a statutory rule, are courts free to decide what constitutes as a mitigating factor or they are bound by the precedents regarding such factors.

Background of the Case

The victim was allegedly experiencing cruelty at her matrimonial home which drove her back to her parent’s home six months after her marriage. During the victim’s stay at her parents’ home, the accused visited her a few times to take her back to his home, but the victim didn’t comply with his demands. One day the victim went to visit her ailing grandmother, who lived nearby. The accused came outside the victim’s grandmother’s house, threw acid on her and fled from the scene. Grievous burn injuries were caused to her damaging and disfiguring her face, eyes, right arm, right shoulder, ears, hand, chest etc.

The trial court of Udaipur held the crime of the accused is unpardonable. It said that instead of seeking legal redress to solve his problems or staying away from her altogether, the convict attacked the victim through acid in a vindictive and inhumane manner. The court prescribed the maximum punishment for causing hurt through acid, Section 326-A of the Indian Penal Code, 1860 [referred to as “IPC”] and granted him rigorous imprisonment for life along with a fine of rupees one lakh payable to the victim. Additionally, he was sentenced to rigorous imprisonment for three years for the offence punishable under Section 498-A of IPC and fine of five thousand payable to the victim.

Judgment of the High Court

The High Court of Tripura said that irrefutably, throwing acid is one of the most gruesome crimes against the human body and severe punishment has been prescribed for the same. The court further acknowledged the fact that the couple had strained matrimonial relations which subsequently resulted in their separation.

The appellant, in his defence, accused his wife of adultery and later contended that she misbehaved with a man who later attacked her with acid. The court refused to accept these arguments and held the contentions of the accused absurd, inconsistent and clear indication of a guilty mind.

However, the court was of the opinion that persistent endeavours of the Appellant, to restore his matrimonial relationship with his wife, and on the other hand, the reluctant wife’s refusal to reunite might have caused a sense of frustration in the Appellant. The court refused to overlook this mitigating factor while deciding the sentence and absolved him of the offence of cruelty u/s 498-A of the IPC due to material inconsistencies in the evidence and reduced the sentence of the accused to minimum sentence prescribed by Section 326-A of the IPC. Thereafter, the court reduced the compensation, which was to be paid to the victim by the accused to one-fourth (25,000/-) of the compensation originally ordered by the trial court.

What are mitigating factors?

Several factors necessitate scrutiny while prescribing sentences which, requires an efficient examination by an expert statutory body. One such important consideration made during the time of sentencing is aggravating and mitigating factors associated with the crime committed and the criminal respectively. Since everything can’t be a mitigating circumstance, several countries have sentencing guidelines enshrined in the penal code itself or separate sentencing guideline laws to minimize uncertainty in the subjects of awarding sentence. For example, the District of Columbia (Washington D.C.) Voluntary Sentencing Guidelines Manual, New South Wales Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, The Criminal Code of Finland and, New Zealand Sentencing Act, 2002 etc.

Sentencing policy determines the manner and extent of legal sanctions to be imposed on the individual guilty of a criminal offence.Lack of a statutory sentencing policy invests the judges with extensive discretion in the matter of fixing the degree of punishment. It ultimately results in a wide disparity in sentencing among trial and appellate courts. According to the statistics, High Courts overturn almost 90%of the orders of trial courts. In 2003, the Committee on Reforms of Criminal Justice System in its report suggested a need for sentencing policy in India.

However, the courts have laid down an inclusive list of factors to be considered at the time of sentencing.The Apex Court, summarizing the principles laid down in the last fifteen years gave an inclusive list of factors to be considered at the time of sentencing. The age of the offender, the possibility of reformation and rehabilitation, prior criminal record, the threat posed to society, acquittal by one of the courts, the premeditation of crime, the case being of circumstantial evidence, etc., were some of the mitigating factors laid down by the court.The cruel, inhuman and gruesome nature of the crime, the crime conjuring disgust and loathing from the public, upsets judicial conscience, the unlikely rehabilitation of the convict or the fact that he would be a danger to the society, deliberate and unprovoked nature of the crime, etc were some of the aggravating factors.

In Ramnaresh v. State of Chhattisgarh, the Supreme Court held that the factors like the offence committed outrageously without cause that involves gruesome treatment and torture to the victim and when the victim, who is harmless and innocent or relies on the relationship and societal regulations…, is attacked by a trusted person constitutes aggravating factors that need to be considered at the time of sentencing. The court also listed mitigating factors such as the manner and setting of the commission of the crime like extreme mental/emotional distress/provocation inconsistent to all such situations which, in the ordinary course of events, would make such conduct probable and could lead to mental instability in such a circumstance like perpetual harassment or managing such a peak of human conduct that, in the facts and situation of the case, the accused was of the belief that the offence was the righteous thing to do.

Further, poverty is not to be taken into consideration in isolation at the time of sentencing.Poverty, socio-economic conditions, psychic or unearned misfortunes in life are to be taken into consideration as mitigating factor solely when these elements have a compelling or furthering part to play in commission of the crime or in swaying the accused to commit the offence.

Mitigating Factors from the International Perspective

Chapter 7 Rule 145 (2) of the Rules of Procedure and Evidence (an instrument for the application of the Rome Statute of the International Criminal Court) says that the court shall take into account the following mitigating factors while deciding the sentence of the accused:

1. The situations which are incapable of constituting grounds for exclusion of culpability, such as significantly diminished mental capacity or duress;
2. The accused person’s conduct after the offence, including efforts by the person to compensate the victim and any cooperation with the court.

Education for Justice University Module Series on Organized Crime developed under UNODC’s E4J initiative, lists mitigating factors as previous good character, remorse or good conduct following arrest, voluntary compensation of victims, a full admission of facts and guilt, duress, very young or old age or a minor role in the offence. Additional mitigating factors would also include giving evidence for the prosecution, the offence was committed a long time ago, small or no harm is done or delay in proceedings.

Section 21-A of the New South Wales Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act, 2002 lists the following as mitigating factors during sentencing:

1. the injury, emotional harm, loss or damage caused by the offence was not substantial,
2. the offence was not part of a planned or organized criminal activity,
3. the offender was provoked by the victim,
4. the offender was under duress,
5. the offender does not have any record of previous convictions, and
6. the offender was a person of good character etc.

Section 6 of Chapter 6 of The Criminal Code of Finland lists the following as grounds of reducing the punishment:

1. Significant pressure, threat or similar influence that has affected the commission of the offence,
2. strong empathy or an exceptional and sudden temptation that has led to the offence,
3. the exceptionally great contribution of the injured party,
4. reconciliation between the perpetrator and the injured person,
5. the offender is a minor,
6. the offence remained an attempt,
7. the offender is convicted as an abettor in the offence etc.

The mitigating factors under Section 9(2) of the New Zealand’s Sentencing Act, 2002 are as follows:

1. the age of the accused,
2. whether the offender pleaded guilty,
3. the conduct of the victim,
4. limited involvement of the offender in the offence,
5. the offender had diminished intellectual capacity at the time the offence was committed,
6. any remorse shown by the offender,
7. the offender took steps that helped the court to shorten the proceedings or reduce their cost,
8. any adverse effects on the offender of a delay in the disposition of the proceedings caused by a failure by the prosecutor,
9. any evidence of the offender’s previous good character etc.

Analysis and Conclusion

Frustration is the prevention or hindering of a potentially satisfying activity; the emotional reaction to such prevention that may involve aggression. 

Precedents suggest that persistent harassment, extreme mental or emotional disturbance or extreme provocation in situations that aren’t ordinary and don’t take place under normal circumstances constitute mitigating factors. In the present case, as a result of domestic bickering, the wife chose to stay at her father’s home and turned down her husband’s proposal to return to his house. 

Taking into consideration the fact that a number of restitution of conjugal rights cases are filed every year since the colonial period[1], the present situation wasn’t any different.

Mitigating factors as used in International law, as well as domestic laws of other countries, consider aspects like the good behaviour of the accused and the mental soundness of the accused- before, at the time and after the commission of the offence. In the present case, the accused was a sane man, who refused to accept his guilt and accused his wife of adultery to absolve himself of the charges which was an indication of a guilty mind as observed by the High Court.

Moreover, the accused took a vengeful recourse to get back at his wife for the turned down requests and chose an inhumane method to satiate his desire. The fact that the victim was a helpless young woman adds to the aggravating factors in the case.

The idea as to what constitutes as mitigating factor from the Indian as well as International perspective indicates that mere frustration in the mind of accused doesn’t qualify as one such factor. Components like extreme mental disturbance/provocation,unique or rare situations, offence committed under duress or inducement and good conduct of the accused prior to and post the commission of the offence are a few of the many mitigating factors. The present case was devoid of any such conditions. Though the court didn’t find the accused guilty of cruelty u/s 498A of the IPC due to material inconsistencies in the evidence, yet it has accepted the fact that there were severe discord and differences in the conjugal life of the couple that led to their separation. Hence, it can logically be concluded that refusal to return to matrimonial home by the victim wasn’t unreasonable; she was exercising her right to peaceful living.

In the present case, an inhumane and spiteful retaliation was the recourse to a matrimonial dispute. The frustration caused due to petty domestic dispute encouraged the accused to commit a gruesome crime which was ultimately used at the advantage of the accused. It augments the archaic notions that a wife is supposed to obey her husband and has no rights of her own once she is married.The present judgement inadvertently reinforces the patriarchal notions of society and fails to keep up with the changing times.

[1] Sharafi, Mitra. “The Marital Patchwork of Colonial South Asia: Forum Shopping from Britain to Baroda.” Law and History Review 28.4 (2010): 994.

[The author is a third year B.A. LL.B student at NUSRL Ranchi.]