NECROPHILIA

CONTEXT:

Recently, Karnataka High Court held that having sexual intercourse with a woman’s dead body will not attract the offence of rape.

COURT’S RULING ON CASE:

Karnataka High Court on May 30 held that having sexual intercourse with a woman’s dead body will not attract the offence of rape, punishable under Section 376 of the Indian Penal Code, as there is no provision in the IPC for it.
“It is high time for the Central government to amend the provisions of Section 377 of IPC” to include dead bodies of men, women, and animals, the court said.
“A careful reading of the provisions of Sections 375 and 377 of the Indian Penal Code makes it clear that the dead body cannot be called as human or person.
Thereby, the provisions of Section 375 or 377 of the Indian Penal Code would not attract,” the court said.

WHAT IS NECROPHILIA ?

The Karnataka High Court observed that “necrophilia” is a morbid fascination with death and the dead and more particularly, an erotic attraction to corpses.
A psychosexual disorder, classified under the DSM-IV, among a group of disorders, called “paraphilias,” including paedophilia, exhibitionism, and sexual masochism.
Necrophilia could be the result of rage, experimentation, or lust rather than sexual necessity or habit.

IS NECROPHILIA AN OFFENCE IN INDIA ?

As of date, the IPC does not list “necrophilia” as a specific offence under sexual offences mentioned in the code.

But the court mentioned that it could be brought under Section 297 as causing “indignity to any human corpse” if someone trespasses into a place for performing funeral rites or a depository for the remains of the dead.
However, Section 297 requires the act of causing indignity to be accompanied by an intention to wound the feelings or insult the religion of any person.
Moreover, the knowledge that any person’s feelings are likely to be wounded or their religion is likely to be insulted by such an act will make it an offence under Section 297.

SC in Parmanand Katara vs Union of India:

The court relied on the 1989 SC ruling in Parmanand Katara case which said that the dignity of a dead body must be maintained and respected
It established a corresponding duty on the state to ensure decent cremation is served to the person.
The right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also to his body after his death.

COUNTRIES PROHIBITING NECROPHILIA :

THE UK: In the United Kingdom, Section 70 of the Sexual Offences Act, 2003 makes it an offence for a person who intentionally sexually penetrates, knowingly or recklessly, any part of his body into any part of a dead person. The punishment for the same ranges from 6 months to a term not exceeding 2 years.
CANADA: In Canada, Section 182 of the Criminal Code of Canada, 1985 makes Necrophilia punishable. The punishment in Canada is imprisonment for a term of not more than five years. The law in Canada appears to be similar though not identical to Section 297, IPC.
NEW ZEALAND: In New Zealand, Section 150 of the Crimes Act, 1961, serves imprisonment for two years to any person doing any act on the corpse, whether buried or unburied, to harm its dignity.
SOUTH AFRICA: In South Africa, Section 14 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 prohibits necrophilia.
In India, corpses don’t have the rights of a legal person. But there are several judgments that uphold the right to human dignity even after death.

RECOMMENDATIONS MADE TO CENTRE:

It is “high time” for the Centre to amend the provisions of Section 377 of the IPC to include dead bodies.
The court also offered an alternative that the Centre brings in a separate penal provision to criminalise necrophilia with life imprisonment up to 10 years with a fine.
The court also ordered the installation of CCTVs in Karnataka morgues within six months and directed the government to maintain hygiene and privacy, ensure the security of clinical records and information, and sensitize mortuary staff.

SYLLABUS: MAINS, GS-1, INDIAN LAWS AND POLICIES

SOURCE: THE INDIAN EXPRESS

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