Honour Killing: A Socio-legal Analysis With Special .

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Sociology International JournalReview ArticleOpen AccessHonour killing: a socio-legal analysis with specialreference to district Srinagar of J&KAbstractVolume 2 Issue 4 - 2018Honour crime is a vintage crime which still holds its place in today’s society inspiteof the modern mindset and advance thinking. Honour killing is the most aggravatedform of honour crime which is prevalent almost in all the societies of the world withvariation in its statistics. Laws in some countries have totally banned honour killingand is regarded as one of the heinous crimes. As far as India is concerned it has noproper and accurate law to deal with such crimes, because of which a big lacuna hasbeen developed in the Indian legal system. Jammu and Kashmir is also following thefootsteps of India and its legal system is also silent about such a terrible crime whichis done on the name of honour. In this paper an attempt has been made to highlight thestatics relating to the aspects of honour killing like how people react to it? What lawis? What law ought to bean many other questions which are important to deliberateupon for analysis of this problem?Gulafroz Jan, Khazin MunirIntroductionHonour killing is a killing of a person on the name of Honour. Sucha killing is done to save the prestige of a family or done in order tomake it an example for other or done out of rage and anger, reason canbe many. Some of the main reasons are marriage out of caste, divorce,marriage by choice, homosexuality, pregnancy before marriage,inappropriate dressing etc. Honour killing is a global phenomenon.The incidence of honour killings is very difficult to determine andestimates vary widely. In most countries data on honour killings is notcollected systematically, and many of these killings are reported bythe families as suicides or accidents and registered as such. Althoughhonour killings are often associated with the Asian continent,especially the Middle East and South Asia, they occur all over theworld. In 2000, the United Nations estimated that 5,000 women werevictims of honour killings each year.1 According to BBC, “Women’sadvocacy groups, however, suspect that more than 20,000 women arekilled worldwide each year.” Murder is not the only form of honourcrime, other crimes such as acid attacks, abduction, mutilations,beatings occur; in 2010 the UK police recorded at least 2,823 suchcrimes.The extend of honour killing varies from state to state and countryto country. India inspite being one of the highest rated countries inregard of honour killing, still all its states are not involved in thisbarbaric practice except (Punjab, Haryana, Rajasthan, Delhi, Biharetc). In India Punjab is the most notories state in this regard withhighest rate of honour killing cases because of the presence of ‘KhapPanchayat’ or ‘Caste panchayat’. One of the landmark judgments inIndia on the crime on honour killing was given by the court in thecase of Manoj-Babli honour killing case. On March 2010, the accusedwere sentenced for capital punishment. In the state of Jammu andKashmir no official survey has been yet made on the extent of honourkillings, but the state of Jammu and Kashmir is also no free from thecurse of honour killing. Most of the cases go unreported because ofthe influence of the family or are reported as suicides or accidents. Thealarming rate of suicide incidences amongst youth in Kashmir servesas an escape path for such honour killings. In the first reported caseof ‘honour killing’ in Kashmir was in budgam area where the policehad arrested a man and his two sisters on the charge of murderingSubmit Manuscript http://medcraveonline.comSociol Int J. 2018;2(4):335‒347.Department of Law, School of Legal Studies, Central Universityof Kashmir, IndiaCorrespondence: Gulafroz Jan, Department of Law, School ofLegal Studies, Central University of Kashmir, Srinagar, J&K, India,Tel 919622689500, Email gulafrozjan@gmail.comReceived: February 16, 2018 Published: August 23, 2018their youngest sibling over her conduct. Mushtaq Ahmad Dar and histwo sisters-Nasreen and Misra-were arrested after the trio admittedto strangulating their 20-year-old sister Zubaida to death becauseshe was in affair with a boy whom his family didn’t approve off. Inthe backdrop of the situation the researcher has carried out presentresearch with two broad objectives:1. To analyse the present legal position and judicial approach onhonour killing in india and state of J&K2. To analyse by way of empirical study the society’s idea about theconcept of honour killing, and adequacy of laws in the state ofJ&K.Different laws in India pertaining to honour killingThe Indian Penal Code2Section 300MURDER –(Firstly) - Except in the cases hereinafter excepted,culpable homicide is murder, if the act by which the death is caused isdone with the intention of causing death, or(Secondly) - If it is done with the intention of causing such bodilyinjury as the offender knows to be likely to cause the death of theperson to whom the harm is caused, or(Thirdly) - If it is done with the intention of causing bodily injury toany person and the bodily injury intended to be in flicted is sufficientin the ordinary course of nature to cause death, or(Fourthly) - If the person committing the act knows that it is soimminently dangerous that it must, in all probability, cause death orsuch bodily injury as is likely to cause death, and commits such actwithout any excuse for incurring the risk of causing death or suchinjury as aforesaid.To relate Honour killing with Sec 300 it has to be seen whethera killing is based on honour or not. Generally Honour killing ispre-planned, premeditated, well executed with the connivance offamily members, society and sometimes with the assistance of policeofficers. Thus the Act of Honour killing squarely falls under section335 2018 Jan et al. This is an open access article distributed under the terms of the Creative Commons Attribution License, whichpermits unrestricted use, distribution, and build upon your work non-commercially.

Copyright: 2018 Jan et al.Honour killing: a socio-legal analysis with special reference to district Srinagar of J&K300 of Indian penal code.3 Every Honour Killing is primarily andessentially a murder but vice versa is not correct. Only that murderwherein the objective of killing is to protect family honour or protectthe sanctity of wrong traditions prevailing in the societies or thecommunities, fall within the sphere of honour killings. Since crime ofhonour killings falls within the board provisions of murder deservingharsher penalties. But there are certain exceptions to the offence ofmurder. One of the exceptions which is usually invoked for gettingmitigated punishment in Honour killing cases in the defence of graveand sudden provocation.4Constitution of IndiaIt also violates Articles 14, 15 (1) & (3) 19 and 21 of the Constitutionof India. Article 14 of the Indian Constitution guarantees to everyperson the right to equality before the law or the equal protection ofthe laws. Every person, whatever is his rank or position or gender issubject to the jurisdiction of the ordinary courts.5 The equal protectionof the laws’, is rather a corollary of the first expression6 and is basedon the last clause of the first section of the fourteenth amendmentto the American constitution, directs that equal protection shall besecured to all persons within the territorial jurisdiction of union inthe enjoyment of their rights and privileges without favoritism ordiscrimination. Honour Killings are thus grossly against this veryconstitutional right provided for the protection of citizens. As alreadystated earlier, honour killings are mainly directed towards womanand thus give rise to gender inequality. This brings us to Article15 of the Indian constitution. Article 15(1) prohibits the state fromdiscriminating against citizens on grounds only of religion, race, sex,caste, and place of birth or any of them. The right guaranteed in clause(1) is conferred on a citizen as an individual, and is available againsthis being subjected to discrimination in the matter of rights, privilegesand immunities pertaining to him as a citizen generally.7 However inmany communities across India where Honour killing is prevalent,wives and daughters are expected to be subordinate, even servile, totheir fathers and husbands, and even their own sons. Women’s rolein life is ancillary: as a dutiful daughter, an obedient wife and a selfsacrificing mother.8It is also violation of Article 19 and Article 21 of the Constitution.Such brutal murders, under the garb of saving the honour of the family,are clearly against the Constitutional provisions enshrined in Article21. Khap panchayats violate a person’s fundamental right to life whenthey pass orders to kill or instigate murder, in the name of honour.9The Indian majority Act, 185710According to section 3 of the Indian Majority Act, 1857 everyperson domiciled in India shall attain the age of majority oncompletion of 18 years, unless his or her personal law specifiesotherwise. However, in the case of guardian appointed to such minor,age of majority will be 21 and not 18year. The Act becomes relevantin cases where the khap panchayats have forcefully separated marriedcouples, who are otherwise eligible for such marriage due to age etc.This is a clear case of violation of the provisions under this Act.The special marriage Act, 195411Here it is important to note that the main reason for the enactmentof the Special Marriage Act, 1954 was to provide a special form ofmarriage for the people of India and all Indians residing in foreigncountries, irrespective of the religion or faith followed by either party,to perform the intended marriage.336The scheduled castes and scheduled tribes (Preventionof Atrocities) Act, 198912This Act was enacted by the Parliament of India, in order to preventthe cases of atrocities against Scheduled Castes and Scheduled Tribes.The objective of the Act was to facilitate the social inclusion of Dalitsinto mainstream of the Indian society. The atrocities under this Actincludes various acts such as forcing an SC/ST to eat or drink anyinedible or obnoxious substance, removing clothes, parading nakedor with painted face or body, assaulting, dishonouring and outragingthe modesty of an SC/ST woman, sexual exploitation of an SC/STwoman, forcing an SC/ST to leave his or her house or village aspunishable. The Act is linked to honour killings because numerousincidents of honour killing are in relation to caste and religion.The protection of women from domestic violence Act,200513The provisions of the Protection of Women from DomesticViolence Act, 2005 provides for more effective protection of therights of women guaranteed under the Constitution who are victimsof violence of any kind occurring within the family and for mattersconnected therewith or incidental thereto.Indian evidence Act, 187214Further the Indian Evidence Act, 1872 provides punishment forthose who are involved in concealment of facts, either before or at thetime of, or after the alleged crime. Article 13 of the Act: Facts relevantwhen right or custom is in question - Where the question is as toexistence of any right or custom, the following facts are relevant: (a)Any transaction by which the right or custom in question was created,claimed modified, recognized, asserted or denied, or which wasinconsistent with its existence; (b) Particular instances in which theright or custom was claimed, recognized, or exercised, or in which itsexercise was disputed, asserted, or departed from. The Act is relevantto bring to justice those who become victim because of the verdictsissued by the khap panchayats.Difference between homicide and honour killingHomicides are no doubt grave crimes bur society may or maynot be affected by the same by large, but Honour killing is a heinouscrime and a greater evil which affects the society at large. In otherwords homicides may affect public interest whereas the offence ofHonour killing shakes Public conscience.15 In case of homicidesthere are several exceptions which are mentioned in IPC but in caseof Honour killing, it is pre- planned, brutally executed more oftenthan not within blood relations and that too in connivance with thelaw enforcing agencies, therefore the defence should not be madeordinarily available and are not ordinarily justified in the eyes of law.16Honour killings in India occur because of certain age old practiceslike casteism, religions, traditions, cultures etc, whereas there is nosuch criterion for homicides. Motives for killing here may be variedand sometimes justified. In Honour killings the offender is usuallyalso the victim because of the fact the deceased/primary victim onwhom violence is usually committed are usually related by blood andin this sense the offender is victim as well, where as it not usually soin homicide.17The above difference make the crime of honour killingdifferent from general homicides and thus deserve special treatmentfor prohibiting, punishment and preventing such crimes.Citation: Jan G, Munir K. Honour killing: a socio-legal analysis with special reference to district Srinagar of J&K. Sociol Int J. 2018;2(4):335‒347.DOI: 10.15406/sij.2018.02.00067

Honour killing: a socio-legal analysis with special reference to district Srinagar of J&KHonour killing and judicial approachThe judicial trends reflect a change from its earlier approach, thatcan be appreciated, from the various judgments of the Courts, we cansay that now, the Honour killings are not termed differently. Courtsthrough their judgments had reiterated that killing anyone in the nameof honour in the violation of the Constitution of India and anyonegoing contrary to the Constitution will be punished. In a landmarkjudgment in March 2010, the Karnal District Court ordered theexecution of the five perpetrators in an honour killing case of Manojand Babli, while giving a life sentence to khap (Local caste basedCouncil) head who ordered the killings of Manoj Banwala (23) andBabli (19), two members of the same clan who eloped and married inJune 2007 and later their mutilated bodies were found a week laterfrom an irrigation canal. In her verdict, district Judge Vani GopalSharma stated, ―This Court has gone through sleepless nights andtried to put itself in the shoes of the offenders. Khap Panchayats havefunctioned contrary to the Constitution, ridiculed it and have becomelaw into themselves. The case was both the first court judgmentconvicting khap panchayats and the first capital punishment verdictin an honour killing case in India. The India media and legal expertshailed it as a -landmark judgment‖. Also, few honour killing cases goto the Court, and this is the first case in which the groom‘s family inan honour killing case filed the case.18The Supreme Court in State of U.P. vs Krishna Master and anr,19awarded life sentence to three persons in an honour killing case, inwhich six members of a family were gunned down, but said the accuseddeserved capital punishment. The apex court however, refrained fromawarding death penalty to Master Krishna, Ram Sewak and Kishorias the incident was two decades old and slammed the High Court foracquitting them by rejecting the testimonies of a child and anotherwitnesses. Next important case on the issue is of Lata Singh vs Stateof U.P. and Anr20 where the Division Bench of the Supreme Courtexpressed concern over the several instances of harassment, threatsand violence against young men and women who marry outside theircaste and held that “such acts or threats or harassment are wholly illegaland those who commit them must be severally punished”. Observingthat “inter-caste marriages are in fact in the national interest as theywill result in destroying the caste system”, the Bench held that “oncea person becomes a major he or she can marry whosoever he/she likes.If the parents of the boy or girl do not approve of such inter-caste orinter-religious marriage the maximum they can do is that they can cutoff social relations with the son or the daughter, but they cannot givethreats or commit or instigate acts of violence and cannot harass theperson who undergoes such inter-caste or inter-religious marriage.”Accordingly, the Bench directed the administration/police authoritiesthroughout the country to see to it “that if any boy or girl who is amajor undergoes inter-caste or inter-religious marriage with a womanor man who is a major, the couple are not harassed by any one norsubjected to threats or acts of violence, and anyone who gives suchthreats or harasses or commits acts of violence either himself or at hisinstigation, is taken to task by instituting criminal proceedings by thepolice against such persons and further stern action is taken againstsuch persons as provided by law.” Referring to instances of ‘honourkillings’ of persons undergoing inter-caste or interreligious marriageof their own free will, the Bench said “there is nothing honourable insuch killings, and in fact they are nothing but barbaric and shamefulacts of murder committed by brutal and feudal minded persons whodeserve harsh punishment.”Copyright: 2018 Jan et al.337In the case of Fiaz Ahmed Ahanger and ors. vs. State of J and K,21it was held that: “In such cases of inter-caste or inter religion marriagethe Court has only to be satisfied about two things: (1) That the girl isabove 18 years of age, in which case, the law regards her as a majorvide Section 3 of the Indian Majority Act, 1875. A major is deemed bythe law to know what is in his or her welfare. (2) The wish of the girl.Similar observations were made in the case of Jyoti Alias Jannatand Anr vs State of UP and others,22 wherein it was held that accordingto Indian Majority Act 1875 a person who is 18 years of age is a majorvide section 3 of the Act. The law deems that a major understands his/ her welfare. Hence a major can go wherever he /she like and livewith anybody. India is a free, democratic, welfare country. Hence ifa person is major even parents cannot interfere with that individual.Once a person becomes a major that person cannot be restrained fromgoing anywhere and live with anyone. Individual liberty under Article21 has the highest place in the constitution.Further in Arumugam Servai vs. State of Tamil Nadu23 the SupremeCourt strongly deprecated the practice of khap/katta panchayats takinglaw into their own hands and indulging in offensive activities whichendanger the personal lives of the persons marrying according to theirchoice. The Hon’ble Supreme Court observed and directed:- “Wehave in recent years heard of “Khap Panchayats” (known as “KattaPanchayats” in Tamil Nadu) which often decree or encourage honourkillings or other atrocities in an institutionalised way on boys and girlsof different castes and religion, who wish to get married or have beenmarried, or interfere with the personal lives of people. We are of theopinion that this is wholly illegal and has to be ruthlessly stamped out.As already stated in Lata Singh case, there is nothing honourablein honour killing or other atrocities and, in fact, it is nothing butbarbaric and shameful murder. Other atrocities in respect of personallives of people committed by brutal, feudal-minded persons deserveharsh punishment. Only in this way can we stamp out such acts ofbarbarism and feudal mentality. Moreover, these acts take the law intotheir own hands, and amount to kangaroo courts, which are whollyillegal. The court issued direction to the administrative and policeofficials to take strong measures to prevent such atrocious acts. Thecourt said that in the event taking place, the state should immediatelyinstitute criminal proceedings against those responsible for suchatrocities, the State Government is directed to immediately suspendthe District Magistrate/Collector and SSP/SPs of the district as well asother officials concerned and charge-sheet them and proceed againstthe

To relate Honour killing with Sec 300 it has to be seen whether a killing is based on honour or not. Generally Honour killing is pre-planned, premeditated, well executed with the connivance of family members, society and sometimes with the assistance of police officers. Thus the Act of Honour killing squarely falls under section

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