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Published : November 29, 2010 | Author : sandeep13
Category : Woman Issues | Total Views : 16465 | Unrated

Sandeep Kumar Passi (B-Pharma,MBA, LL.M) Moot court Incharge Baba Farid Law College FARIDKOT

Women/Society’s Honour Really Under Threat in India
Hard cases make the law

I. Introduction and Definition of Honour Killing
An honour killing (also called a customary killing) is the murder of a family or clan member by one or more fellow family members, where the murderers (and potentially the wider community) believe the victim to have brought dishonour upon the family, clan, or community. This perceived dishonour is normally the result of

(a) utilizing dress codes unacceptable to the family
(b) wanting out of an arranged marriage or choosing to marry by own choice or
(c) engaging in certain sexual acts.

These killings result from the perception that defense of honour justifies killing a person whose behavior dishonorus their clan or family[1].

Human Right Watch defines "honour killings" as follows:
Honour crimes are acts of violence, usually murder, committed by male family members against female family members, who are held to have brought dishonour upon the family. A woman can be targeted by (individuals within) her family for a variety of reasons, including: refusing to enter into an arranged marriage, being the victim of a sexual assault, seeking a divorce—even from an abusive husband—or (allegedly) committing adultery. The mere perception that a woman has behaved in a way that "dishonorus" her family is sufficient to trigger an attack on her life[2].

The loose term honour killing applies to killing of both males and females in cultures that practice it. For example, during the year 2002 in Pakistan, it is estimated that 245 women and 137 men were killed in the name of Karo-kari[3] in Sindh. These killings target women and men who choose to have relationships outside of their family's tribal affiliation and/or religious community. Women in the family do support the honour killing of one of their own, when they agree that the women is the property and asset of men and boys. Sometimes a mother may support an honour killing of an "offending" female family member in order to preserve the honour of other female family members since many men in these societies will refuse to marry the sister of a "shamed" female whom the family has not chosen to punish, thereby "purifying" the family name by murdering the suspected female.There have been many cases when people order or pressure a woman to kill herself; this may be done so that the people avoid penalties for murdering her[4].

According to the UN in 2002:
"The report of the Special Rapporteur ..concerning cultural practices in the family that are violent towards women (E/CN.4/2002/83), indicated that honour killings had been reported in Egypt, Jordan, Lebanon, Morocco, Pakistan, the Syrian Arab Republic, Turkey, Yemen, and other Mediterranean and Persian Gulf countries, and that they had also taken place in western countries such as France, Germany and the United Kingdom, within migrant communities.”

In April 2008 it came to light that some months prior, a Saudi woman was killed by her father for chatting on Facebook to a man. The murder only came to light when a Saudi cleric referred to the case in an attempt to demonstrate the strife that the website causes. In March 2009, Turkish immigrant Gülsüm S. was killed for a relationship outside her family's plan for an arranged marriage. Pakistan honor killings are known locally as karo-kari. Amnesty International's report noted "the failure of the authorities to prevent these killings by investigating and punishing the perpetrators." The average annual number of honour killings for the whole nation ran up to more than 10,000 per year[5]. According to woman rights advocates, the concept of women as property and honour is so deeply entrenched in the social, political and economic fabric of Pakistan that the government, for the most part, ignores the daily occurrences of women being killed and maimed by their families." Frequently, women murdered in "honour" killings are recorded as having committed suicide or died in accidents[6].

The Hindu historic practice of sati, or widow-burning, in parts of India and South Asia can be considered a form of honour suicide in those instances when (at least theoretically) the act is voluntary, with a deceased man's widow immolating herself on his funeral pyre as an act of pious devotion and to preserve her and her family's honour. Evidence suggests that in some instances, sati was not "voluntary", but was compelled, both historically and in modern times. Ever since the British ruled India, sati has been banned and is now considered murder. About 40 cases have occurred in India since independence in 1947, the majority taking place in the Shekhawati region of Rajasthan[7].

II. Honour Killings and The Domestic Violence
Fundamentalists of many religions may expect their women to meet some but not all of these expectations. Families that kill for Honorium Causa will threaten girls and women if they refuse to cover their hair, their faces, or their bodies or act as their family's domestic servant; wear makeup or Western clothing; choose friends from another religion; date; seek to obtain an advanced education; refuse an arranged marriage; seek a divorce from a violent husband; marry against their parents' wishes; or behave in ways that are considered too independent, which might mean anything from driving a car to spending time or living away from home or family. Although the starting point of honour killing is refusing of anything by a girl or woman and it always start from the home so also referred as domestic violence against the woman.

But there are lot of difference between Honour Killing and the Domestic Violence on certain points as follows[8]:

Honour Killings

Domestic Violence

Committed mainly by fathers against their teenage daughters and daughters in their early twenties. Wives and older-age daughters may also be victims, but to a lesser extent.

Committed by an adult male spouse against an adult female spouse or intimate partner.

Carefully planned. Death threats are often used as a means of control.

The murder is often unplanned and spontaneous.

The planning and execution involve multiple family members and can include mothers, sisters, brothers, male cousins, uncles, grandfathers, etc. If the girl escapes, the extended family will continue to search for her to kill her.

The murder is carried out by one man with no family complicity.

The reason given for the honor killing is that the girl or young woman has "dishonored" the family.

The batterer-murderer does not claim any family concept of "honor." The reasons may range from a poorly cooked meal to suspected infidelity to the woman's trying to protect the children from his abuse or turning to the authorities for help.

The murderer(s) do not show remorse. Instead, they experience themselves as "victims," defending themselves from the girl's actions and trying to restore their lost family honor.

Sometimes, remorse or regret is exhibited.

Conference at Sweden in 2004 concluded that, “Violence in the name of honor must be combated as an obstacle to women's enjoyment of human rights. Interpretations of honor as strongly connected with female chastity must be challenged. It can never be accepted that customs, traditions, or religious considerations are invoked to avoid obligations to eradicate violence against women and girls, including violence in the name of honor. Violence against women must be addressed from a rights-based perspective. Measures should be taken in the areas of legislation, employment, education, and sexual and reproductive health and rights. Respect for women's enjoyment of human rights is intrinsically linked to democracy. International conventions must be incorporated into national legislation.[9]”

III. Reported cases on Honour Killings in the recent past
In Muzaffarnagar district in western Uttar Pradesh, at least 13 honor killings occurred within nine months in 2003[10].It was an estimate that Haryana and Punjab alone account for 10 per cent of all honor killings in the country. It is not surprising that no such category of crime exists in government records before the coming of number of decisions of the KHAP PANCHYAT from Haryana. According to these caste panchyats, A woman's chastity is the "honour" of the community and she has no sovereign right over her body at any point of her life. The retribution is particularly swift and brutal if she crosses caste and class barriers to choose a lower-caste man as her partner.

Caste discrimination also exists among urban Indians. Subhash Chander, living in Chicago, killed his daughter Monika, son-in-law Rajesh Jhambh and grandchild Vansh in their Oak Forest apartment merely because his daughter had married a man of supposedly a lower caste.

Recently a couple in Haryana was murdered by the girl’s father and their dead body kept for display in the courtyard to free the family from the dishonour. Their crime they fall in love and were from the same village[11]. It is an act where we can say that your mind is owned by me and your body has its place in waste-basket.

IV. “ Law as a Means to an End: - R.V.Ihering
As we know that in a society if we wanted to grow, we have to maintain a balance between the social interest and the individual interest. In the words of R.V.Ihering, Social interest or good has always primacy over Individual interest and so he insisted on the primacy of Social Purposes[12]. So his theory Law as Means to an End is basically directed towards the Jurisprudence of Interest and it is this interest, which generally results in Honour Killings. Thus his theory can be a great starting to uproot this deadly disease of individuals mind. He pointed out four Purposes in Der Zweck in Recht,[13] in 1877.

1. Social and Egoistic Purposes
2. Social Mechanics:-(a) Extra legal use of reward. (b) Coercion
3. A survey of conditions of social life or rather human purposes.
4. Role of morals in social control i.e. Non-legal Coercion.

So it is the social and the egoistic purpose of some individuals to which they gave the name Honour and it is this honour, which is different for different people. Thus to keep this honour within limit so that it does not result in destroying the rule of law, the social mechanics like extra legal reward[14] and coercion can be applied. Law, therefore, is Reward and Coercion[15] organized in set form by the State. And in order to use these mechanics within the boundary of law without destroying what is being granted under the Indian Constitution it is necessary to do survey for the conditions of the social life of humans of the area where this disease is present like rural areas of Haryana, U.P, and Punjab and even to some extent in South India. Then after diagnosing the same, the role of morals is to be used for further preventing this disease into the other areas. Thus it is evident from the above that Purpose is the creator of Law and according to Ihering there is no Law which does not owe its origin to purpose: - to name some of them like Dowry Prohibition Act, Domestic Violence Act, The prevention of Corruption Act and many more in the list. So the need of the hour is to come up with a Law or to use the existing law more purposively to win the war against the Honour Killings, otherwise the flag of civilization needs to be lowered to fly half-mast.

V. Conclusion and Suggestions
Decades ago, our forefathers fought for their and our freedom against the odds of kingdoms, feudalism and the foreign rulers. They fought on the premise of the rights and dignity of the individuals to make them self-dependent and responsible. Now the time is to fight for the same rights but definitely more appropriately for the women’s Honour, which is at stake on the name of Honour itself.

When government acquires a position to dictate parents how to grow their kids, it becomes excessive and in such cases revolt is presumable and necessary. So in order to put R.V.Ihering theory, that is the four-point approach in India the suggestive line may be as follows:

1. A family cannot grow well without the responsible authority of parents. A family cannot sustain status of good family if the authority is not limited. In cases where that authority is not limited, social ills like child-marriages, molestations, and above all “honour-killing” often occurs. Indian Family system is more authoritative than is necessary, that is why Honor Killing and other ills are more here. There have been made many movies to profess this idea and the best one was ‘Ek Duje Ke Liye[16]’, to make citizens realize the limit of the authority and its importance. And more recent was the DDLJ[17], which gives an idea to prevent and curb the social and egoistic problems of the society, which later becomes Honour Killings.

2. To put into the second category of extra legal reward and coercion the recent case of Dilip Premnarayn Tiwari & another v. State of Maharashtra[18] can be cited here where in order to curb the menaces of honour killings the court observed that the mere life imprisonment which is capable of resulting into 20 years of imprisonment or 14 years of actual imprisonment may not be adequate punishment, so the Honourable Supreme Court directed that the accused shall not be released unless they complete 25 years of actual imprisonment.

3.In the third point of the theory, we can take example of the movie UPKAAR, in which the very famous song “Kasme Wade Pyar Wafa Sab, Baatein hain Baaton Ka Kya” was sung by ‘Pran’. When ‘Bharat’(Manoj) asks ‘Pran’ that in day he says people should care for each other and should respect each others premises of happiness and freedom, why do he sings such a song at nights? Pran explains him that in daytime, he says that which should happen, at night he sings that which actually happens. In a anarchic state, people generally tend to ruthfully override others individual rights because of which anarchy always fails and some form, of limited government becomes a necessity to protect the individual rights. But then again, the authority should remain in limits. And that limit can be exercised by doing the right survey of certain areas where this problem is in existence either by the Government or with the help of certain NGO’s who are pioneer in these work and thus to make day and night realty same and not the different and more over the implementing authority of the law must be more vigilant about it.

4. In the fourth point we can always use non-legal coercion, which is being used by these self, dictated Khap Panchyats to cut the social accord from the family to develop the morals in the social control. Socialism is a fact, which starts from family and later on develop to a relation with the community in which that person is living. You cannot expect a family without these social accords. It is like salt in a soup. One need to know how much quantity is essential. A new-borne totally dependent on his/her elders/parents, completely unable to think for his own cannot expect a no-responsibility behaviour from her mother/father. Obviously there occurs a reasonable duty, a self-chosen authority on the kid to give him a healthy upbringing. (Authority is opposite to anarchy)! Now just to prove that anarchy is good, one cannot and should not throw away his child as an orphan. Why the hell he/she gave birth to that kid if they were so rigid. So to overcome this it is really necessary to educate the people morals values necessary in order to live in a humane society where Live and Let Live must be the theme. To make the masses realize that the society in which they accept these crime like honour killings as a good deed is not correct as the children are born to them and are not there servant on whom you can impose your social customs by way of authority. Although law is an important tool but there are other strategies also through which we can resolve the conflicts by non-violent methods and those should be promoted at the rural levels and moreover to the masses so that the equality between the men and women can be restored in realty and not to remain on paper.

At the end I would really appreciate the view of law minister[19] where the Government is planning to ban these khap panchyats and also imposing burden of proof on the accused to prove its innocence beyond reasonable doubt.

A multi-programmed approach to violence against women will result in far reaching changes, transforming attitudes and practices so that men and women can live in equality and dignity and we can restore the Society’s Honour. “First a turnip, then a sheep, next a cow, and then the gallows”
[1] As defined y Wilkipedia
[2] Violence against women & ‘Honour’ Crimes- Human Rights Watch
[3] A name of Honour Killings in Pakistan
[4] Honour killings of women and girls in Pakistan- a report
[5] Report by Amnesty International on Honour Killings in Pakistan
[6] Honour and the law in Pakistan by Sohail Werraich
[7] Reported data at the wilkipedia
[8] The Middle East Quarterly- by Phyllis Chesler in sprong 2009
[9] An international conference on honour killing, calling for "international cooperation" on the issue, held at Sweden in 2004
[10] Reported data in the leading newspaper.
[11] A report in The Tribune
[12] Dr. S.N.Dhyani, 3rd edition-2004, p.313
[13] A Work of Rudolf Von Ihering translated as “Law as Means to an End" in 1913
[14] Llyod, Dennis, Jurisprudence, p.175 (1959)
[15] See Dias, Jurisprudence, p.587 (1976)
[16] Hindi movie showing death of hero and heroine as they belong to different religion and caste.
[17] Dilwale Dulhaniya Le Jayengay, Hindi movie showing parents responsibility to solve honour conflicts.
[18] (2010) 1 SCC 775
[19] Mr. Veerapay Moily, Law Minister, India

Authors contact info - articles The  author can be reached at: passi13@legalserviceindia.com

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