In a horrifying case from Karnataka, India, a young woman was murdered & raped in 2015. Following the trial, the accused person was found guilty by the Sessions Court (a court of first instance for criminal offences), and convicted of both murder and rape. However, justice took an unexpected turn when the accused sought an appeal in the Karnataka High Court. A Division Bench of the High Court upheld the murder charge, while absolving the defendant of the rape charge, classifying his act as “necrophilia” rather than rape. This implies a disturbing state of affairs, where an accused person can escape a rape conviction if he murders the victim before having intercourse with the body.
Necrophilia: Meaning & Origin
Derived from the Greek words “Philips” (love) and “nekros” (dead body), the term “necrophilia” means sexual attraction to and/or engagement in sexual acts with corpses. Due to its secretive nature and the inability of victims to report such acts (as they are already dead), it remains challenging to determine the true statistics of necrophilia.
Recognizing its significance as a disorder internationally, both the World Health Organization and the American Psychiatric Association classify necrophilia as a paraphilia (a condition characterised by abnormal desires) in their diagnostic manuals.
The Absence of a Specific Offence of Necrophilia
In the Karnataka High Court judgment, the court noted that the accused engaged in sexual intercourse with a dead body. However, the court determined that this act does not qualify as rape under Section 375 of the Indian Penal Code (‘IPC’). This is because rape requires the involvement of a living human being, and a dead body cannot be considered as such. Adding that no offense punishable under Section 376 (punishment for rape) had taken place, the court clarified that “sexual intercourse on a dead body is nothing but necrophilia”.
The Supreme Court held in the case of Parmanand Katara that Article 21 enshrines the rights to dignity for both living people and the dead, and this was reaffirmed in the case of Ramji Singh. However, there is no specific provision in the IPC criminalizing necrophilia. Although it could potentially be understood as an “unnatural sexual act” under Section 377 (voluntary carnal intercourse against the order of nature with any man, woman, or animal), the provision does not specifically list ‘corpse intercourse’ within it.
Are Other Offenses Applicable?
Section 297 of the IPC makes it an offense to trespass on a burial ground or to cause indignity to a corpse. It reads: Whoever, with the intention of wounding the feelings of any person, or of insulting the religion of any person, commits any trespass in any place of the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse, shall be punished with imprisonment… for a term which may extend to one year, or with fine, or with both.
A defendant who trespasses into a burial ground or causes indignity to a corpse will thus be liable to a term of imprisonment and/or financial penalties. But still, the elements of this offense would not be made out if the trespass or the act of causing indignity to a corpse was not accompanied by an intention to wound the feelings or insult the religion of any person, which may not be the case in many situations. Trespassing on burial grounds could be a precursor to an accusation of necrophilia, but, for section 297 to apply, it would need to be done with the intention of wounding or insulting religious feelings, and this might not always be the case.
Way Forward & Suggestions
It is imperative for the Government to consider the inclusion of a specific offense of necrophilia in Indian criminal law, as existing provisions may not cover acts amounting to necrophilia. As a solution, two possibilities can be proposed: either amending Section 377 of the IPC to explicitly include acts involving dead bodies, or introducing a separate penal provision specifically targeting necrophilia. The suggested punishment would be imprisonment for up to 10 years (the minimum sentence for a rape conviction), accompanied by a fine.
Taking inspiration from the UK’s Sexual Offences Act of 2003, which already recognizes necrophilia as an offense under Section 70, there is a need for India to learn from other countries’ legal frameworks. Several countries such as Canada, New Zealand, and South Africa have already prohibited necrophilia through distinct legislation.
In conclusion, it is imperative for India to take swift action. By doing so, the country can make a resolute stand against this horrifying behaviour, ensuring justice and protection for the deceased and their families.