ABSTRACT:
In light of the recent judgment that was delivered by the Karnataka High Court, in which it said that if a man has sex with the dead body of a woman, it does not constitute rape, has sparked a new debate in the country concerning the lacunae in the Indian laws to punish these crimes. Among a group of disorders named paraphilias, necrophilia is one of them. The news of these crimes in the public domain has increased in recent times which is a major concern. Necrophilia is unacceptable in Indian society. Unfortunately, there is no separate provision in IPC to curb such menace. The perpetrators are usually charged with Sections 297[1] and 377[2] but they do not have any prescribed punishment for having sexual intercourse with a dead body. The inadequacy of laws has been analysed in this paper. Several countries around the world have criminalised these acts. The judiciary has been active in highlighting this issue and several judgements of the apex court and high courts have stated the need for a separate law to punish such heinous crimes. The Parliament should take cognizance of this immediate need, in order to restrain the perpetrators of such detestable crimes and thereby protect the dignity of the dead.
Keywords: Necrophilia, dignity, punishment, intercourse, dead body
INTRODUCTION:
Necrophilia is a rare phenomenon in which an individual receives sexual pleasure by having intercourse with a corpse. It is also called necrocoitus, necrolagnia, thanatophilia, necrophilism and necrochlesis.[3] An individual is known as a necrophiliac actively engages in such action, where the act between the individual and the dead body is typically motivated by the desire for sexual pleasures. It is a psychosexual disorder that belongs to the paraphilias, a kind of psychosexual disorder characterised by odd or strange fantasies or behaviours required for full sexual fulfilment.[4]
Necrophilia has also been described as an “eligibility paraphilia,” which means that it only allows for self-abandonment to the elation of the wicked act of lust if the partner is “eligible” by going beyond the restrictions, benefits, and safeguards of incapable of being defiled. The partner has “no capacity to resist, and [is] hence capable of being completely subjugated, making necrophilia the ultimate extreme paraphilia.”[5] Even though milder variants of necrophilia are common, true necrophilia is rather uncommon.[6] Equivalents are dreams or circumstances where the other person is under the influence of something, asleep, or is expected to play a passive, helpless position during sexual activity, particularly in a coffin.[7] Because the sexual partner is already dead or acting dead, they are unable to respond, necrophilia allows for the control of harmful urges towards them and fear of reprisal for those wishes.[8] Because the dead body cannot harm or desert the necrophile, the inert companion fosters a sense of power that alleviates feelings of inadequacy and increases control.[9]
Various countries all around the world took action to suppress this disorder and the menace that it brings. International organisations have also emphasised the importance of protecting the dead and their dignity. Necrophilia as a disorder and its background has been introduced. The rising cases in India and the immediate need for a provision has been taken into consideration. Till date, India does not have any provision to prohibit this crime. The hypothesis is that Sections 376[10], 377[11] and 297[12] of the IPC are not adequate to punish an individual accused of having sexual intercourse with a dead body. The lacunae in the IPC to punish such accused persons have been investigated. The views of the judiciary have also been highlighted in order to put forth the fact that the judiciary is helpless to punish the convicts guilty of committing necrophilia because of a lack of law.
RESEARCH METHODOLOGY
The study was conducted using doctrinal method of research. Credible sources such as articles, journals, blogs and case laws were referred to while researching upon the topic. This method of research has helped in gaining knowledge about the views of various authors and scholars and accessing the judgements online smoothly.
REVIEW OF LITERATURE
While researching on this topic, several journal articles were looked into and one of them was of International Journal of Legal Science & Innovation and it was authored by Neelakshi Bhaskar. The author explored the legal perspectives of necrophilia where she compared the laws of various countries around the world. She has also classified the different types of necrophilia. The famous ‘Nithari’ case has also been analysed and the author has identified the gaps in the IPC to include necrophilia.
Another article that was researched upon was from LiveLaw[13], The Law and the dead; Necrophilia, written by Meghna Nimbekar and Lokesh Mishra. In this article, the authors cited the various cases of necrophilia that took place in India recently and highlighted the need and importance of amending the laws to criminalise this act. They have also researched on various laws in our country available for the dead and analysed the concept of brain death. The universal laws were also compared in the article in order to have an idea and take inspiration from those laws into the sections of the Indian Penal Code in our country.
In a similar manner, in this paper, the author intends to emphasize the importance of creating a separate provision to criminalize necrophilia or amend the present laws of the IPC. It highlights the importance of maintaining and protecting the dignity of the dead.
HISTORICAL BACKGROUND:
In ancient times, sailors who brought corpses home were frequently charged with necrophilia. There have only been a few isolated cases of necrophilia recorded in history. However, documentation has shown that the practice existed in Ancient Egypt.
The historical record suggests that the ancient Egyptians were aware of and despised sexual intercourse with the dead as Herodotus (484-425 BC) noted:
“When the wife of a distinguished man dies, or any woman who happens to be beautiful or well known, her body is not given to the embalmers immediately, but only after the lapse of three or four days. This is a precautionary measure to prevent the embalmers from violating her corpse, a thing which is actively said to have happened in the case of a woman who had just died.”[14]
RISING CASES IN INDIA:
In Maharashtra, in a town known as Palghar, a shopkeeper allegedly murdered a women customer and later raped her dead body. The suspect ran a novelty shop in Nalasopara town and was taken into custody.[15] In a bizarre case, in Surendra Koli v State of U.P. Ors[16], a wealthy businessman and his domestic servant were involved who killed several girls and raped their dead bodies. They also used to cut the body into pieces cooked them for the purpose of consumption. A man aged 50 years, was arrested by the Assam Police for having sex with the dead body of a girl who was 14[17]. The girl had committed suicide, and the next day, he unearthed the corpse and was committing rape, some villagers spotted him while doing the same. In another shocking incident in Delhi, a “psycho killer” who allegedly choked a man to death, used a knife to check to see if the victim was still alive, and then performed sodomy on the victim’s dead body.[18] During the Covid-19 wave, many corpses were thrown into the rivers due to a lack of space in graveyards[19], which increases the possibility of such cases of necrophilia.
LEGALITY OF NECROPHILIA
Despite such heinous crimes being committed, what laws do we have to protect the dead? The cases mentioned above are not only brutal in nature because of the increasing number of necrophiliacs but due to the inhuman way in which the offence is carried out. Lois McMaster Bujold stated, “The dead cannot cry out for justice, it is the duty of the living to do so for them.” It is our duty to treat them with dignity. Necrophilia is a phenomenon which is abhorrent, awful and disrespects the dead. The same has been considered in international law and it has stressed the importance of protecting and respecting the dead. “Article 130(1) of the Fourth Geneva Convention deals with the dignity and respect of the departed, stating that states should arrange an honourable burial of the dead, whenever feasible in accordance with the person’s traditions and religious practices.”[20] In a 2005 ruling, the United Nations Commission on Human Rights emphasised the significance of treating human remains with respect, which includes appropriate handling and disposal as well as taking family needs into account.[21] Article 3(a) of the 1990 Cairo presentation on Human Rights in Islam gives “in case of the utilization of power and in the event of equipped clash it is denied to ravage dead bodies.”[22] As far as the laws regarding necrophilia in other countries are concerned, in the United Kingdom, as per Section 70 of the Sexual Offences Act of 2003, an individual who penetrates with a sexual intention, whether knowingly or negligently, any part of his body into any part of a dead person is considered to commit an offence.[23] In Canada, Section 182 of the Criminal Code of Canada, 1985 makes Necrophilia an offence: “Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of an offence punishable on summary conviction who (a) neglects, without lawful excuse, to perform any duty that is imposed on him by law or that he undertakes with reference to the burial of a dead human body or human remains, or (b) improperly or indecently interferes with or offers any indignity to a dead human body or human remains.”[24] In New Zealand, Section 150 of the Crimes Act of 1961, punishes “any person doing any act on the corpse, whether buried or unburied, to harm its dignity, with imprisonment for two years.”[25] France has the most strange practices among several countries dealing with necrophilia. The French believe that marrying a dead person is even more ancient than the “Magna Carta”[26] and it is known as “ghost marriage.” A marriage known as Necrogamy or Posthumous marriage, in which a human being marries a corpse. Article 171 of the French Civil Code makes this custom legal.[27] In South Africa, Section 14 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 prohibits Necrophilia.[28]
NEED OF LAW IN IPC:
In order to punish such heinous and daunting crimes, unfortunately, there is no such specific provision in our country. The common cases of Necrophilia are mostly dealt with under Sections 297 and 377 of the IPC but they do not fulfil the purpose as there is no specific provision in these sections dealing with sexual intercourse with corpses. Section 297 of the Indian Penal Code reads “Whoever, with the intention of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the 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 the 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 imprisonment of either description for a term which may extend to one year, or with fine, or with both.”[29] If we analyse this section, there is no punishment for a person who attempts to or performs intercourse with a dead body. Under this section, he can only be charged with the offence of causing indignity to a dead body and not with the offence of necrophilia. This section is included in Chapter XV, ‘Offences relating to religion’ which indicates that the purpose of this section is to defend burial rights and not to defend the rights of the dead. Such crimes are regularly committed by individuals who are appointed to work at cemeteries or some individuals first murder the person and then rape the dead body. The persons falling in this category cannot be charged with the offence of trespassing. Furthermore, a necrophiliac usually does not have the intention of hurting the feeling of a person or offending someone’s religion, their sole purpose is to have sex with the corpse to fulfil their erotic desires. Another problem with this section is that it only provides a maximum punishment of one year which is not appropriate for such heinous and detestable crimes as necrophilia. With these issues in this section, a person accused of necrophilia and charged under Section 297, can easily defend, and release himself of the charge. For the reasons mentioned above, this section cannot be used to punish such offences.
Section 377 of the IPC provides “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” In the case of Navtej Singh Johar v Union of India,[30] the apex court legalized consensual sex between adults under this section, including homosexual sex. The two ingredients of this section are satisfied in the case of necrophilia. Firstly, it is against the order of nature and second is that is performed with a man, woman or animal. However, this section does not punish carnal intercourse with a dead body. Here, it indicates a ‘living’ man, woman or animal. Further, the question of voluntary or involuntary intercourse also cannot be answered because the dead body cannot give consent. Hence, this section would not be attracted for a person committing necrophilia and the dignity of the dead would remain unprotected.
This offence may be punished under Section 511 of IPC[31], even though it is not a specific provision for necrophilia. This section takes into consideration the ‘moral guilt’ of the perpetrator or an unsuccessful attempt to commit a crime. It punishes the mens rea of the offender. Hence, even though the act of necrophilia cannot be punished but the mens rea of the necrophiliac can be taken into account and he can be punished for the same, for moral guilt. The problem with section 511 for punishing this offence is that the punishment provided is “imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.” The punishment must be in accordance with the offence that was attempted. In the case of necrophilia, there is no law, hence no punishment is specified. Therefore, even if an accused is charged with this section, he cannot be punished with some specific years of imprisonment.
Thus, considering the increasing number of cases in India, there is an immediate need in the Indian Penal Code to have a specific law in order to punish necrophilia and prohibit these acts.
JUDICIAL VIEWS ON NECROPHILIA
The recent judgement of the High Court of Karnataka has highlighted the need of creating a separate law for necrophilia. In the case of Rangaraju v State of Karnataka[32], the High Court held that “sexual assault on the dead body of a woman will not attract the offence of rape punishable under Section 376 of the Indian Penal Code.[33]” In doing so, it acquitted a man guilty of rape who had sexually assaulted a woman whose age was 21 years after he had killed her. In his appeal, the convict argued that the alleged act was nothing but “necrophilia” and that there was no particular provision in IPC that punished the purported crime. The question before the court was “Whether sexual intercourse on the dead body of a woman amounts to rape, in view of provisions of Section 376 of the Penal Code, 1860?”
The court answered the question in negative by saying “A careful reading of the provisions of Sections 375[34] and 377[35] of the Penal Code, 1860 make it clear that, the dead body cannot be called as human or person. Thereby, the provisions of sections 375 or 377 of the Penal Code, 1860 would not attract. Therefore, there is no offence committed punishable under Section 376 of the Penal Code, 1860.”
The court also looked into the definition of death provided under Section 46 of the IPC: “The word ‘death’ denotes the death of a human being, unless the contrary appears from the context.” Hence, according to the definition, rape must be executed with a human being and not a corpse. An offence of rape is committed when a man performs sexual intercourse with a woman against her consent. A corpse cannot consent to or object to rape nor can it be in fear of immediate and unlawful bodily injury. The act of having sexual intercourse with a dead body is not rape but necrophilia.
It has recommended the Central Government to amend Section 377 of the IPC and include the term ‘dead body’ in order to protect the rights of the dead and provide them with adequate dignity and respect. It also directed the state government to ensure that CCTV cameras are installed in all government and private hospitals’ mortuaries for the purpose of preventing such crimes.
The apex court has also considered the rights of the dead in the case of Pt. Parmanand Katara vs Union Of India & Ors[36]. It held “Right to dignity and fair treatment is not only available to a living man but also to his dead body under Article 21 of the Constitution.” The Hon’ble Supreme Court in the case of Ashray Adhikar Abhiyan v. Union of India,[37] held that unclaimed bodies or homeless deceased also have the right to a reverent cremation and their dignity must be protected. The Madras High Court in the case of Amrutha, S. and Ors. v The Commissioner, Greater Chennai Corporation and Ors[38] held, “Even dead persons have got a right of privacy and their souls should not be disturbed, as they have immortal life after their death.” The Allahabad High Court reiterated the same in the case of Ramji Singh v State of U.P. and Ors[39] in which it said that the definition of “person” in article 21 ensures that the right to die with dignity also applies to the person’s dead body.
CONCLUSION:
Necrophilia is a disorder which is inhumane, morally wrong and abominable. The family of the deceased protects the dead body in his/her remembrance. These criminals take unfair advantage and perform necrophilia. This mostly happens with the dead body of women. Such acts shake the collective conscience of society. There are various laws to protect the dignity of a living woman, but unfortunately, there are very few or no laws to protect their dignity when they are dead. Women, when alive, are already the victims of man’s lust and sexual pleasures. It is regretful to say that they are not set free even when they are dead. It lowers the dignity of the dead, disrespects it and also hurts the feelings of their family and near relatives. With the rising cases in India and also around the world, it is high time, that either a separate and strict law is made punishing necrophilia or the present provisions of law are amended. Section 376 of the IPC should be amended to also include the dead body of a woman and Section 377 should also be included to punish carnal intercourse with the dead body of a man, woman or animal. The individuals who are appointed to work at mortuaries and graveyards should be given adequate training and must be sensitized so that they do not perform such acts while they are on duty.
Name: Aaditi Singh
College: National Law University Odisha
Year of study: Second year
[1] Indian Penal Code, 1860, § 297.
[2] Indian Penal Code, 1860, § 377.
[3] Neelakshi Bhaskar, Necrophilia Legal Perspective, 2 IJLSI p. 241, (2020)
[4] Tyler T. Ochoa & Christine Jones, Defiling the Dead: Necrophilia and the Law, 18 San. Clar. Law Dig Com. 539, (1997)
[5] JOHN MONEY, Venuses Penuses: Sexolooy, Sexosophy, and Exigency theory 445-46 (1986).
[6] WILLIAM B. ARNDT, JR., GENDER DISORDERS AND THE PARAPHlLIAS 331 (International Universities Press 1991)
[7] Id.
[8] Id.
[9] Id.
[10] Indian Penal Code, 1860, § 376.
[11] Indian Penal Code, 1860, § 377.
[12] Indian Penal Code, 1860, § 297.
[13] LiveLaw, https://www.livelaw.in/columns/the-law-and-the-dead-necrophilia-158856 (last visited June 10,2023)
[14] ANIL AGGRAWAL, NECROPHILIA: FORENSIC AND MEDICO-LEGAL ASPECTS 150 (CRC Press 2011)
[15] The Tribune, Palghar stunned by necrophilia, a man raped woman’s corpse : The Tribune India (last visited June 11,2023)
[16] Surendra Koli v State of U.P., 2011 SCC OnLine SC 344
[17] The New Indian Express, Assam man arrested for necrophilia- The New Indian Express (last visited June 11,2023)
[18] The New Indian Express, Delhi: Bizarre case of necrophilia comes to light, suspect nabbed- The New Indian Express (last visited June 11,2023)
[19] India Today, Fact Check: Truth behind bodies of Covid-19 patients being thrown in the Ganges – India Today ((last visited June 11,2023)
[20] Geneva Convention (IV) on Civilians, 1949, art.130(1)
[21] V. Venkatesan, By Issuing Guidelines to Protect the Rights of the Dead, Has NHRC Rediscovered Its Potential?,THE WIRE (16 May 2021), By Issuing Guidelines to Protect the Rights of the Dead, Has NHRC Rediscovered Its Potential? (thewire.in)
[22] Upasana Borah, A Conceptual Study to Necrophilia – A Review, 11 Journal of Forensic Research 1, 5 (2020), A Conceptual Study to Necrophilia – A Review (hilarispublisher.com)
[23] Neelakshi Bhaskar, supra note 1.
[24] Rangaraju v State of Karnataka, 2023 SCC OnLine Kar 23
[25] Id
[26] The National Archives Magna Carta, 1215 – The National Archives (last visited June 12,2023)
[27] French Civil Code 2016, art. 171.
[28] Neelakshi Bhaskar, supra note 1.
[29] Indian Penal Code, 1860, § 297.
[30] Navtej Singh Johar v Union of India, 2018 SCC OnLine SC 10
[31] Indian Penal Code, 1860, § 511
[32] Rangaraju v State of Karnataka, 2023 SCC OnLine Kar 23
[33] Indian Penal Code, 1860, § 376.
[34] Indian Penal Code, 1860, § 375.
[35] Indian Penal Code, 1860, § 377.
[36] Pt. Parmanand Katara vs Union Of India & Ors, (1995) 3 Supreme Court Cases 248
[37] Ashray Adhikar Abhiyan v. Union of India, 2002 SCC OnLine SC 55
[38] Amrutha, S. and Ors. v The Commissioner, Greater Chennai Corporation and Ors, MANU/TN/6106/2018
[39] Ramji Singh v State of U.P. and Ors, MANU/UP/2873/2009