Lacunae in honour death law divides legal eagles
Abraham Thomas | New Delhi IN THE PIONEER
If India enacts a law punishing abettors of honour killing as guilty of murder, it would be the first country in the world to impose the harshest law on honour killings. In fact, till some time back, an “honour killer” in Syria was fully exempted of punishment. A two-year sentence has now been put in place there. If Jordan has similar provisions, in Pakistan, which has a high incidence of honour killings, a law introduced in 2004 punishes honour killers with a seven-year sentence but is silent on abettors. But the Centre’s move to impose a sentence as harsh as up to death for abettors of honour killings has divided the legal fraternity in India. One view says since honour killing is committed by victim’s family members, efforts to hold family members as abettors to the death would not lead to reporting of such crimes. The other view supports criminal remedy as an effective measure so long as customary law in the country fails to give protection to same-gotra marriages.
Speaking to The Pioneer, senior advocate Rajiv Dhavan said, “For the present, the criminal remedy is good in prescribing a minimum punishment, provided it is not rigid. You cannot have a rigid law as there are social consequences attached to such offences.” At the same time, Dhavan pointed out that since the law does not prohibit same-gotra/caste marriages, the justification of honour as a ground to preserve the customary law will not be available.It is on the basis of this argument that the Centre has proceeded to make ‘honour killing’ punishable as a criminal offence, not just for the persons indulging in the murder, but also the khap panchayats who sanction such killings in the name of saving the honour of their caste or community.
The section with a contrary view, however, questions: If the purpose is to curb ‘honour killings’ and ensure young boys and girls marry of their own free will, why not achieve the same through civil means?“The social consequences of imposing such harsh punishment for honour crimes would deter its detection and defeat its purpose,” Chandigarh-based lawyer Anil Malhotra, who has done extensive studies on the domestic and international aspects in family law, maintained.“It is well known that accused in honour crimes are family members. Moreover, this is largely a rural phenomenon. Most cases do not get reported and even if they do, the abettors cannot be brought to book,” he added.
As a civil recourse to the problem, he cited a UK law — the Forced Marriage (Civil Protection) Act 2007, which authorises the English courts to stop intimidation and violence against persons forced to marry against their wish, to prevent forced marriages, and annul such marriages where the ceremony has already taken place. The practice is largely prevalent among the minority communities in England. Malhotra said, “The problem of forced marriages and honour killings are often intertwined. Marriage can be forced to save honour and women can be murdered for rejecting a forced marriage and marrying a partner of their choice. Only such kind of a law would persuade victims to come forward against their family members and report these crimes.”
Honour killing, though recognised as a crime world-wide, also has a mitigating effect to the extent that murder committed for saving family honour has weighed with foreign Governments to mitigate punishment. For instance, Article 548 of the Syrian Legal Code till recently exempted a man from punishment who killed his wife, daughter, sister for family honour. But on July 1, 2009 the said provision was abolished and replaced with a two-year sentence, which too is under protest.
Similarly under the Jordanian Penal Code, Article 340 states, “He who discovers his wife or one of his female relatives committing adultery and kills, wounds, or injures one of them, is exempted from any penalty.” However, Article 97 and 98 of the same Code permits a man to claim a lesser punishment for being “provoked” into killing for honour sake.
In Pakistan, where over a thousand honour deaths are reported every year, the law punishes such killings with a sentence of seven years, but the Muslim law pales the impact of the law that ultimately favours the accused to claim honour as a defence. As regards India, the issue of honour deaths is localised and restricted largely to the States of UP, Haryana and Punjab. To choose then between civil or criminal remedy would largely depend upon the effectiveness of the law enforcement agencies.