Abstract
Necrophilia[1] can be understood as, when a human being commits any sexual deed or performance with a dead human body which involve sex organs, anus, urethra, or mouth. Necrophilia can be derived from a Greek word nekros meaning corpse and philia means love. The subset necropedophilia means having sexual activity with a dead body of a child. Necrozoophilia means having sexual activity with a dead animal body. The dead bodies are usually dug-up from the graves or are in mummified condition. Necrophilia is mostly practiced by males. It is possible for a necrophilie to have common or sexual relations with living humans. They may act or seem as a very normal individual. Section 375 of IPC does not make necrophilia an offence and it also doesn’t come under the ambit of sec 377. It is a grey area in Indian Penal Code. Section 375 makes offence of rape with a human or a person, hence a rape committed on a dead body will not be an offence. Hence, the central government must make provisions to cover this grey area and definitely make necrophilia and offence under IPC.
Keywords
Necrophilia, unnatural offences, sexual abuse, cannibalism.
Introduction
Recently, Justices B Veerapa and Venkatesh Naik from Karnataka High Court made a statement while hearing an appeal, in which the person convicted for murder and subsequent ‘rape’ of a twenty-one-year-old woman that central government must make provisions to make necrophilia an offence under section 375 IPC. The High Court set aside the order of the Session’s Court and convicted the accused only for murder and not rape. As it is not an offence under IPC. Over the past few decades the cases of necrophilia have been increasing. The ‘Nethari serial killings’ in late 2000s still sends a shiver through the spine. In 2006, the police arrested two men who murdered at least 12 children and performed necrophilia with their dead body.
This triggered a debate, shouldn’t necrophilia be considered as an offence. The rampant increase of sexual abuse on a dead body, especially of a woman in India must not be ignored and made either an offence under section 375 or 377 of IPC or new provisions must be added. There is a difference in rape and sexual abuse in a women’s dead body. Rape is done with a living person. It must be committed against the person’s will, then only it will be considered as a body injury. A dead body can neither consent nor protest to the rape committed. Necrophilia is a sexual fascination with a dead body. It is a psychosexual disorder. Hence, it all doesn’t come under the umbrella of existing laws in IPC. In countries like, the UK, Canada and even South Africa have laws to make necrophilia an offence.
Research Methodology
The research paper is of descriptive nature and based on secondary sources. It has a deep critical analysis of grey area in law, where necrophilia is not an offence under IPC. The research talks about why there is a need for a legislation to make brutal crimes like necrophilia an offence. Many times when the person is convicted for necrophilia there is no specific provision to punish the offender. Hence, this research work highlights the need for a legislation to make necrophilia an offence under IPC. Secondary sources of information include newspaper and journal articles, online resources, websites etc. My research work is based on elaborative and descriptive understanding. It also has my field work.
Review of Literature
To understand and write a detailed research paper I had to deeply analyse many judgements and frameworks. Article 21 of Indian Constitution gives right to life and liberty to living and dead humans. Several judgements and case studies helped me to have an elaborated knowledge. ‘Necrophilia Forensic and Medico-Legal Aspects’ is a book written by Anil Aggrawal which focuses on Forensic and Medical aspects of why necrophilia happens. This book helped me to understand the psychology of necrophilie.
Existing Laws
- Rape
IPC [2] defines rape as, when a man through penetration of his penis or by penetrating any other object in a women’s sexual organ, anus, mouth or urethra against the woman’s consent, commits a rape on her. Manipulation to do it with other person against her will is rape. Application of his mouth on any of her sex organ or forcing her to do it with him is rape. Coercion to have sexual intercourse or causing undue influence to have sexual intercourse is rape. Under unsoundness of mind and involuntary intoxication, when a sexual intercourse is initiated on a woman even with her consent, a rape is committed. Vagina shall include the labia majora. A consent shall be given in a verbal or nonverbal way. For giving consent the girl has to be a major. The only exception to it is: –
1. For medical procedure
2. Sexual intercourse with husband with his wife who is not under 15.
In the controversial skin-to-skin judgement[3], the supreme Court stated that touching a child through the clothes is an offence of sexual assault under section 7 of POCSO Act[4]. Skin to skin touch is not necessary but the intention and the activity done will decide it as sexual abuse. Justice Krishna Iyer[5] stated, “a murderer kills the body, whereas a rapist kills the soul.” Hence, a rape is more grave offence than a murder.
- Unnatural Offences’
Section 377 of IPC deals with unnatural offences. When a person willingly has carnal intercourse against the order of nature with humans or animals shall be liable of unnatural offence. This section once included the same sex relations later in 2018, the same sex marriage was decriminalised. The other aspect that section 377 covers is having sexual intercourse with an animal. It is still a criminal offence under IPC.
- Trespass on Burial Places
Section 297 of IPC deals with offence of trespass in burial places. In this, whoever with full knowledge digs up a burial place as a form of indignity, disturbance or religious insult will be punished.
- Mens Rea
Section 511 of IPC deals with the mental motive or intention of the offender to commit the crime. So, necrophilia can be covered under this ambit. Mens Rea is a latin maxim that means mal intention or bad intention to commit an offence. Ass the necrophilie committed sexual abuse on a dead body he will have a mens rea to commit a rape on the woman’s living body. Hence, an offender can be punished under this section. But that does not fulfil the need. The punishment for such a heinous crime is too low, and doesn’t deal with it in a complete way, hence section 511 of IPC is not sufficient enough to deal with offence of necrophilia.
None of the above mentioned laws can punish a person for the offence of necrophilia, because section 375 states punishment for raping living human, and section 377 is not inclusive to sexual abuse on a dead body. It does not make necrophilia an offence. Section 297 can punish the offender for digging up the burial site but will not punish for necrophilia.
In India, even though there are many cases of necrophilia and necrozoophilia, there is no recognition of it as an offence under IPC. The Indian laws have been developing and changing according to the societal needs, and it is high time to make a legislation to make Necrophilia an offence. When a person is convicted for necrophilia there is no legislation to punish the convict and this has become a major loophole. Hence, even after committing a brutal crime, the offender is set free after a few years of punishment. Many psychologist and eminent personalities opined that necrophilia is a result of insanity. A person with a sound mind cannot have sexual pleasure with a dead rotten body. Hence, when a legislation is made by pith and substance, it will cover all the areas and give a defined punishment and reformative methods. In many cases wold wide and even in India, necrophilia has been committed with full sense and voluntary interest. So, a legislation made need to first check the mental capacity of the offender which is not necessarily insane.
Presently, in India necrophilia is considered as an offence but it does not have specific laws to deal with. That is why Karnataka High Court asked the central government to make legislation to make necrophilia an offence under IPC. Section 377 and 297 are not enough and capable of punishing for the offence of necrophilia. A dead body of a human becomes semi-subject in the eye of the law and it is state’s duty to give it the same dignity and respect as that of a living human. Under the legislation, the dead body is the property of the closest relative of the person died.
History of Necrophilia
Necrophilia is an age old psychosexual illness and history has several recorded and unrecorded tracts of necrophilia. Herodotus, the father of History has written in his book[6], the corpses of beautiful women must be kept for minimum 4 days, so it starts decaying and becomes rotten to discourage necrophilia. From Ancient Egypt, there is availability of written records of necrophilia. Several ancient culture like Moche Culture have artefacts like ceramics and statues depicting necrophilia. Before the renaissance era, the practice of sex slaves in Europe were prevalent. After these sex slaves died the master kept having sexual pleasure with the sex slave’s dead body until it was very decayed and void of recognition. Necrophilia was first time mentioned by ‘Belgian Psychiatrist Joseph Guislain’ in 1850. Necrophiles are mentally ill, psychotic and incapable of finding a consenting partner for sexual activity.
In India, Aghoris, a tribal sect that live in Himalaya perform cannibalism and necrophilia as a religious act. They offer sexual intercourse with dead decayed and rotted bodies to purify their soul. Some people offer these Aghori Baba the dead body willingly as a tradition. Other times these Aghoris dig up graves and perform sexual intercourse.
Causes of Necrophilia
- Unable to find consenting partner
A necrophilie is unable to find a consenting partner for sexual intercourse. A dead and decaying body can neither give consent, nor protest. So a necrophilie doesn’t have to fear and get all the pleasure. They enjoy the authority with the unmoving dead body. The dead body can neither disagree nor reject the necrophilie. Their life has lack of sexual pleasures and due to which they end up being a necrophilie.
- Psychological Illness
Psychopathy, sociopathy, sadism can lead to necrophilia. The psychological pleasure of killing someone and having sexual activity with them will give them dopamine. Mostly these are the people who does not get any social empathy and are segregated from the mainstream society. It can also be developed as a sexual fetish or a romantic obsession.
- Unmaintained Mortuary
Mortuary which is unmaintained, unhygienic and is not inspected, several cases of necrophilia occurs. The attendants of mortuary or the guards attempt sexual abuse on the dead bodies. Hence, installation of cameras, regular inspection, maintenance of privacy and safety will avoid cases of necrophilia in mortuaries.
- Unable to Accept Rejections
There have been umpteen cases of men who were unable to accept rejection from the females they got attracted to, committed necrophilia. Many times, men propose a woman they like but the woman may reject that person. This triggers ego and anger on them and as a revenge they kill the women and sexually abuse her dead and unmoving body. Men or women from childhood must accept and respect rejections, unless they feel traumatised and hurt when they face rejections.
- Fantasies
Many men have fantasies or fetish to have sexual intercourse with dead bodies of humans or worse animals. They also fantasise role play with their partners to act as dead during the sexual intercourse. It may develop in their mind without them knowing and slowly they become addicted to it. It can be developed due to uncontrolled sexual desiers.
Case Study
- Palghar case
A horrific and terrible incident happened in Palghar District of Maharashtra where a man killed a woman and sexually assaulted her many times. In 2020, while the world was tensed by the coronavirus lockdown, the accused named, Shiva Chaudhary who was an owner of novelty shop in Nalasopara town in Maharashtra killed a customer and sexually abused her dead body. Shiva, the offender and the lady had an argument about the price of the commodity that the lady wanted to buy in the shop. Later, he slapped her and dragged her to the back store. He killed her by strangulating her neck and filthy raped her dead body until it was rotten. He accepted the crime on police investigation. He was married and lived in distant from his family for business purpose.
- Nithari Serial Killings
The gruesome Nithari case happened in 2000s where a man in Noida abducted and killed various children (both boys and girls) and women and committed rape on their dead bodies. In early 2000s abnormally many children and women started disappearing in New Delhi. In 2006 upon investigation of disappearance of a girl in New Delhi discovered the beastly crimes of Nithari. Any concrete evidence could not be found by police against accused, Koli. Later, Koli himself gave a detailed confession of how he killed those children and women. He also confessed how he brutally raped the dead body. In 2007 a committee was set up by Ministry of Women and Child Development to investigate this case and present a report on it. In the report, the motive of Koli to do the gore violence was unidentified nor the modus operandi to kill the women and children were known. No certain type or pattern was chosen to kill the people and no evidence apart from some skeletons were found.
Dignity of Dead Under Indian Constitution
Living humans have right to live a dignified life with liberty under Article 21 of the Indian constitution. Article 21 of the constitution guarantees right to life and liberty, and it also shall cast an obligation on the state to give dignity to not only living beings but also to the dead humans[7]. Even dead bodies deserve a dignified burial. Though the dead bodies are unable to move or speak or even protest that doesn’t mean it lost all its dignity. A sexual abuse on a dead body harms the dignity of it. Dead bodies of human still have right to privacy under Article 21 of the Indian constitution and as every human has an immortal life they deserve an undisturbed peace[8]. Every essence of human rights is to preserve dignity that every human holds. The importance of dignity is the reason why rights are made. Though the rights of dead has not been jotted down very clearly in the constitution but through golden interpretation of laws, we can infer it from the texts. In Ashray Adikar Abhiyan vs Union of India the Supreme Court held that every dead body of a human being has right to be cremated in a dignified way and according to his religious beliefs and customs. The dead body of a human deserves the same dignity as that of a living.
International Framework
Many countries have criminalised necrophilia, but India is among one such country which has not criminalised necrophilia under a specific legislation. In Geneva Convention 1984[9] it states that all possible measures must be taken to prevent a dead body from being despoiled. It prevents necrophilia. The international convention aims to give equal respect, right and privacy to every human body irrespective of the fact that it is living or dead. A resolution was passed by United Nations Human Rights Commission in 2005 to preserve the dignity of dead bodies and prevent mutilation of dead bodies. ‘United Nations Conventions Against Torture (UNCAT)’ is an international human rights treaty that aims to protect and prevent cruelty, mutilation, inhuman treatment to human’s dead bodies. This shows that every dead body deserve dignity and respect.
Conclusion
The Indian Penal Code was drafted in 1834. Even today the IPC holds prime importance. But a law drafted decades ago, cannot fulfil the fast changing world laws. The IPC is a living document. It should be changed and modified according to the changing society. Necrophilia is a very brutal crime. It not only harms the dignity of a dead human but also is a very beastly offence. The rampant increase of necrophilia in India is alarming, but still the offender of this brutal crime can be left unpunished. Hence, it is high time why the central government must either make a new legislation or increase the ambit of already available laws to make necrophilia an offence under IPC. Necrophilia can be induced due to insanity of mind or it can also be practised by individuals who live a normal life in the eye of the society. They may be married or even have children, but deep down they may have the psyche to do such horrible acts. There are many countries that have not criminalised necrophilia and India is one among them. India must either make a new legislation or must have provisions in already available provisions to make necrophilia an offence under IPC.
References
Section 375 IPC
Section 377 IPC
Section 295 IPC
Section 511 IPC
Attorney General for India v Satish
Protection of Children from Sexual Offences Act, 2012
Ashray Adikar Abhiyan vs Union of India
Rafiq vs State of UP
The Histories
Parmanada Kataria v UOI
Singh Mujeeb v State of UP and Ors
Geneva Convention 1984
This research paper is by Ridhi Shree Nair from Dharmashastra National Law University, Jabalpur(M.P.)
[1] Encyclopaedia of Forensic and Legal Medicine (Second Edition), 2016
[2] Section 375
[3] Attorney General for India v Satish
[4] Protection of Children from Sexual Offences Act, 2012
[5] Rafiq vs State of UP
[6] ‘The Histories’
[7] Parmanada Kataria v UOI
[8] Singh Mujeeb v State of UP and Ors
[9] Rule 113
Very well articulated. Excellent work.