Inscrutability of Necrophilia and Criminal laws in India

16/06/2023

WhatsApp Facebook X (Twitter)Telegram Reddit Email

Necrophilia Death Murder

Necrophilia is a Greek term and it is derived from the word ‘philios’, which means to make love or attraction towards the human corpse (dead body). It is a man’s sexual orientation towards the ‘unnatural’, a kind of pervasive sex in nature. This idea of ‘unnatural’ give vigour to immorality implied to such practices. It is one of the most taboo sexuality which is of its own kind and present in every culture and society.

Necrophilia, is not new to the world, it is always considered as one of the categories of ‘unnatural sex’. To be precise, in natural forms of sex, there are two living bodies performing the sexual acts mainly with the two objectives- a) reproduction, b) for sexual pleasure. In necrophilia a necrophiliac man performs sexual acts with the dead body (human corpse).

Sometimes, a necrophiliac man dugs the dead body from the grave after a period of time, when the dead body rots and performs sexual acts with it. Whereas, in some other cases the necrophiliac men likes to perform sexual practice with the human skeleton. Some do it for sexual pleasure, while others perform this act with the dead body to know its past.

In India, the mysterious term “Necrophilia” first came into light during Nithari Case, (Surinder Koli Vs. State of Uttar Pradesh & Others: 2006), where both the accused admitted that they have murdered children and later raped their bodies. Since then, this crime is always in the news.

In 2011, a grave keeper confessed that he raped more than 48 female corpses from the graveyard in Karachi, Pakistan.

In 2013, a 24 years woman had murdered two men with the help of her boyfriend, and performed sexual acts with the dead bodies (corpse) in Illinois, United States of America.

In New Zealand, some advocated Necrophilia as a choice of sexuality. They consider it harmless to others because of it is the performance with the dead. However such practices in other parts of the worlds are considered as demonic activities.

In 2015, another case from Karnataka, India came into light where a man by slits throat of a college going woman murdered her and later raped her body. This was another case of necrophilia which took attention of the nation towards this psychosexual problem.

In 2023 March, a 36 years old man in Delhi was arrested for murdering a minor boy, who after murder committed an act of necrophilia. Police registered the case under Section 302 of the Indian Penal Code.

In Parmanand Kataria Vs. Union of India (1984) 4 SSC 286, the Supreme Court recognises that Article 21 of the Constitution of India- Right to life , to provide right to life, fair treatment and dignity to the citizens as well as to their dead bodies. This is the constitutional right provided to the citizens of India. Whereas, in the Indian Penal Code, Section 297, defines ‘trespassing on burial places, etc’– Whoever, with the intention of wounding the feelings of any person, or of insulting any religion of any person, or with the knowledge of that feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or on any place of sepulchre, or any place set apart from the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies, shall be punished with the imprisonment of either description for a term which may extend to one year, or with fine, or with both”

Section 499 of the Indian Penal Code defines “Defamation”- Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will arm, the reputation of such person, is said, except in the cases herein expected, to defame that person”.

In India, due to continuous rise in cases of ‘necrophilia’ people are padlocking the graves of their deads (female), to protect the dead bodies from necrophiliacs. Such indignity towards dead bodies (human corpse) urges for a separate law. The Indian Penal Code does not constitute any separate proviso for the offence like Necrophilia, the nearest are Section 297, 377 and 499. Considering the commission of sexual offences, attracts Section 376 ‘Punishment to Rape’ and Section 377 ‘Unnatural Offences’ of the Indian Penal Code.

Section 375 of the Indian Penal Code provided definition of rape, under any of the seven descriptions to fulfil- A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under the circumstances falling any of the seven following descriptions:— “

First— Against her will.

Secondly—Without her consent.

Thirdly — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly — With or without her consent, when she is under sixteen years of age.

Seventh— When she is unable to communicate consent.”

The above seven conditions are for a living human, which can resists, who has anger and fury against the offence and the accused, but not for the dead.

Section 376 of the Indian Penal Code deals with the “Punishment for Rape”.

Section 377 of the Indian Penal Code, defines “Unnatural Offences– Whoever voluntarily has carnal intercourse against the order of nature with a man, woman or animal, shall be punished with imprisonment of life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine ”. In this Section, the offence shall taken place with a man, woman or animal, therefore the said provision does not attract the attention of this offence.

The Hon’ble Karnataka High Court on May 30^th’2023, in its latest judgement “Rangaraju @ Vajpayee Vs. State of Karnataka” (2023), in Criminal Appeal No. 1610 of 2017, the Division Bench of Hon’ble Justice B.Veerappa and Justice Vyankatesh Nayak. T, observed that ‘Necrophilia, is a morbid fascination with death and more particularly, an erotic attraction to the corpses.’

The Hon’ble Court further questions on the legality of Section 376, upon the sexual offence with the dead body, “Whether sexual intercourse on the dead body of a woman amounts to rape, in view of provisions of Section 376 of the Indian Penal Code?”

Section 46 of the Indian Penal Code defines, “death of a human being unless the contrary appear from the context”. Whereas, Section 2, of the Registration of Births and Deaths Act 1969 defines death as, ‘permanent disappearance of all evidence of life at any time after live births has taken place.” The proviso above defined death and a dead person cannot be called as a living human or a person with life.

The Hon’ble Karnataka High Court in the above case (Supra) observed that, “the essential of guilt of rape consists in the outrage to the person and feelings of victim of the rape. A dead body has no feelings of outrage. The sexual intercourse on dead body is nothing but necrophilia.” It further observed that, “Necrophilia is a psychosexual disorder and DSM-IV classifies it among a group of disorders called ‘paraphilias’ including pedophilia, exhibitionism and sexual masochism and names necrophilia as ‘not otherwise specified”. Necrophilia can be considered as sadism, and for such offences no punishment is defined under Section 376 of Indian Penal Code.

In United Kingdom, Canada, New Zealand, South Africa and other countries have developed laws against Necrophilia and alike. However, at present criminal law in India does not have any separate proviso to penalize crimes like Necrophilia, Zoophilia, Sadism, Vampirism, Cannibalism, and Necrophegia etc. Undoubtedly, engaging in such acts raises psycho-legal issues and demands for a separate legal remedy.

The Hon’ble Karnataka High Court in the above judgment (Supra) recommended the Government of India to amend Section 377 of Indian Penal Code and “should include dead body of men, woman or animal as contemplated under the said provision”, or, “The Central Government shall amend the new provision in the IPC with regard to sadism or necrophilia against the person whoever voluntarily has carnal intercourse against the natural including the dead body of the woman, punishable with imprisonment of life or with imprisonment of either description for a term which may extend to ten years and also shall be liable for fine.” It further suggests to install CCTV cameras in mortuaries of public and private hospitals especially where the dead body of woman are kept and to maintain hygiene, security, privacy and to sensitize the staff to handle the body of the deceased with sensitivity. The Hon’ble Karnataka High Court in its judgment (Supra) recommended the above suggestions and urges the Government of India to make a new separate provision for Necrophilia which desires urgent attention of the government.

This is a psycho-legal matter which needs to get penalized by a separate law and needs pressing consideration of the Government of India, Parliament and the Chief Justice of India.

References–

Books-

Mathiharan and Patnaik (ed.) Modi’s Medical Jurisprudence and Toxiclogy: 23^rd edition,(2005); Lexis Nexis, Nagpur. India.
The Indian Penal Code: 2021, Universal, Lexis Nexis: Gurgaon Haryana, India; Pp. 105,147-149,153, 191.
The Constitution of India, 2021, Universal, Lexis Nexis: Gurgaon Haryana, India. Pp. 14-A.

Dr. Rahila Sikandar (M.A-Public Administration, LL.M-Criminal Laws & PhD-Centre for the Study of Law & Governance, Jawaharlal Nehru University, New Delhi) is a Practicing Lawyer at the Hon’ble High Court of Judicature at Allahabad and Executive Committee Member of National Disaster Research Group (NDRG) of Network of Asia Pacific Schools & Institutes of Public Administration and Governance (NAPSIPAG).