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NECROPHILIA IN INDIA: WHAT IT IS AND POSSIBLE EXPANSION OF SECTION 377 OF IPC

INTRODUCTION

Unpredictable and unimaginable crimes in our society occasionally come to light shocking the core of our beliefs. And it warrants updating laws that are unable to deal with the unpredictable and unnatural nature of these crimes. A similar case was seen in Karnataka when Rangarajan on June 25, 2015, murdered a 21-year-old woman and subsequently raped her. Such an act of having sexual intercourse with a dead body is termed as necrophilia and it can also be diagnosed[1] as a type of specific paraphilic disorder. However, because no law specifically recognizes necrophilia as a crime or the term necrophilia at all there has been a debate on the need for a separate specific law on sexual offense against the dead.

WHAT IS NECROPHILIA? WHY IS IT COMMITTED?

Black’s law dictionary defines necrophilia as the act of performing a sexual act with a dead human body. Necrophilia is derived from the Greek words ‘philios’ and ‘nekros’ meaning love and dead body respectively. Written records of necrophilia are present from ancient Egypt stating that beautiful women were allowed to decay for 4 days before they were sent out for embalming, this was done in order to prevent intercourse with the corpse. It is a perverse sexual attraction to dead bodies and can be associated with other paraphilic disorders[2] like cannibalism, sadism, vampirism, necrophagia, necro pedophilia, and necrzoophilia. The person who commits the act of necrophilia is called a necrophile. However, a person can be called a necrophile only if he commits necrophilia repetitively and compulsively[3] but the act remains the same irrespective of the frequency. Abraham. So, what causes an individual to have sexual intimacy with a corpse? The following are the reasons[4]:

  • Intense fear of interacting.
  • The incapability of a corpse to consent or hurt them.
  • Necrophile’s lack of empathy and sexual boundaries.

WHY IS NECROPHILIA A CRIME? THE DIGNITY OF THE DEAD

The living are all born equal with liberty, safety, and dignity being their rights[5] by the virtue of being human. One does not cease to be human after death they just become ‘dead human’ but human nonetheless. So even after death one carries the ‘right to fair treatment and dignity’ as held by the Supreme Court in the case of Pt. Parmanand Katara v Union of India[6]. Necrophilia is an act of indignity and the perpetrator takes advantage of the fact that the dead can give no consent or resistance.

CASES OF NECROPHILIA IN INDIA

Sexual offenses against the dead have taken place in many instances in India. Some notable ones are:

In 2015 a dead woman who had passed away due to severe labour pains were dug up from her grave in the Ghaziabad district[7] of UP and raped by three men. Her body was discovered by the locals 20 feet away from her grave.

Recently in the year 2022, a woman was hacked to death and later raped by a 23-year-old man in the Udalguri district[8] of Assam.

The serial killer and rapist Ravinder Kumar[9] caught in 2015 had raped and killed more than 30 minors sometimes killing them first and then violating them. He was awarded life imprisonment by the Delhi High Court.  

In these cases, the accused can be convicted under sections 376, 302, and section 377 [10]of the Indian Penal Code. Section 376[11] provides for punishment for sexual assault, section 302[12] provides for punishment for murder and section 377 provides for unnatural offenses. However, a gap can be seen where the term necrophilia is nowhere mentioned nor specifically recognized anywhere by any Indian law such a crime is not yet punishable. Necrophilia in India has not been criminalized.

SECTION 377 AND THE POSSIBILITY OF ITS APPLICATION ON NECROPHILIA

Section 377 of the Indian Penal Code states that “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punishable 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 Calvin Francis vs State of Orissa[13] case the conditions to apply Section 377 of IPC were given that the intercourse must be against the order of nature i.e., with a man or woman without consent or with an animal, the prerequisite also stressed upon was that there should be penetration.

To decode the meaning of section 377 one needs to understand the meaning of “order of nature”. Order of nature means anything natural and natural is anything normal. Here it can be deduced that the object of sexual intercourse is the conception or procreation[14] of human beings and anything contrary to that can be considered unnatural. As per this logic, necrophilia is unnatural i.e., ‘against the order of nature’ as a dead body is unable to procreate. However, making procreation the prerequisite standard of the natural order of sexual intercourse is quite restricted and narrow. Terming this as unnatural is restricted and will not be acceptable by current society. Sexual intercourse with anyone other than a living human being without consent can be seen to be unnatural.

However, the term ‘necrophilia’ or the provision of a dead body in the section has not been provided which makes it difficult to determine and punish the necrophilia under section 377. While the object of unnatural carnal intercourse includes man, woman, and animal only and the provision does not include a dead body. The same problem was observed in the recent case of Rangarajan vs the State of Karnataka. The accused had murdered a 21-year-old woman and later raped her dead body in the Tamkuru district of Karnataka. The session’s court convicted Rangarajan under murder and rape charges. He then appealed to the High Court of Karnataka where the high court upheld the life imprisonment for murder but set aside[15] rape charges.

The high court held that rape charges cannot be upheld because the woman was a dead body and not a living person with will or consent and is unable to feel or get hurt or resist the sexual assault. Hence the accused cannot be punished for rape because the unnatural nature of the sexual assault is not covered under section 376 and the provision under section 377 does not provide for necrophilia defiling the dead. The high court of Karnataka however also recommended the Parliament to amend provisions of section 377 of IPC to include dead bodies.

CONCLUSION

Necrophilia is a perverse act that can also be described to be sadistic. Here the perpetrator takes advantage of the fact that the dead person is unable to reject/consent or resist the sexual assault. There is no doubt about the unnatural nature of necrophilia as a sexual offense, first, it is violating a dead body, second it is taking advantage of a body because it cannot give consent or resist, and third combining the two reasons it is violating the dignity of a dead human body. It is also against any morals and has already been criminalized in countries like UK and Canada. Section 377 of IPC should be amended to include necrophilia under unnatural sexual offenses as recommended by the Karnataka High Court. Even though it isn’t as frequently seen or reported it is still present in India and there is a need to decide upon its punishment and inclusion as one of the sexual offences.

Author(s) Name: Tanvitha Reddy. K (Osmania University College of Law)

[1] American Psychiatric Association, Diagnostic Manual of mental disorders, (5th edn 2013) 705

[2] Anil Aggarawal, ‘A New Classification of Necrophilia’ (2008) 16 (6) J Forensic Leg Med <A new classification of necrophilia (anilaggrawal.com)> accessed 12 June 2023

[3] Tyler T. Ochoa and Christine Jones, ‘Defiling the Dead: Necrophilia and the Law’ (1997) 18 Whittier Law Rev <https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1099&context=facpubs> accessed 12 June 2023

[4] Pradeep Kumar and Rajiv Gupta, ‘Necrophilia: An Understanding’ (2019) 7(2) Int J Indian Psychol <https://www.researchgate.net/profile/Pradeep-Kumar-168/publication/334114117_Necrophilia_An_Understanding/links/5e06661ea6fdcc2837437c6e/Necrophilia-An-Understanding.pdf> accessed 12 June 2023

[5] The Constitution of India 1950, art 21

[6]  Pt. Parmanand Katara vs Union of India & Ors (1989) SCR (3) 997

[7] ‘Shocking! Three Gang Rape Woman After Digging Body From Grave In Uttar Pradesh’ (India.com, 25 October 2015) <Shocking! Three gang rape woman after digging body from grave in Uttar Pradesh | India.com> accessed 11 June 2023

[8] Kangkan Kalita ‘Assam: Man murders woman, has sex with the corpse’ (The Times of India, 10 September 2022) <https://timesofindia.indiatimes.com/city/guwahati/assam-man-murders-woman-has-sex-with-corpse/articleshow/94120999.cms> accessed 11 June 2023

[9] Deepankar Malviya ‘Delhi serial killer, who raped and murdered over 30 kids, gets life term’ (Hindustan Times, 26 May 2023) <https://www.hindustantimes.com/cities/delhi-news/life-imprisonment-for-delhi-serial-killer-and-rapist-ravinder-kumar-for-six-year-old-s-rape-and-murder-101685039043537.html> accessed 12 June 2023

[10] Indian Penal Code 1860, s 377

[11] India Penal Code 1860, s 376

[12] Indian Penal Code 1860, s 302

[13] Calvin Francis v State Of Orissa [1992] 1992 I OLR 316

[14] Shamnad Basheer et al., ‘Section 377 and the ‘Order of Nature’: Nurtuting ‘Indeterminacy’ in the law?’ (2009) 2(3) NUJS Journal <http://nujslawreview.org/2016/12/03/section-377-and-the-order-of-nature-nurturing-indeterminacy-in-the-law/> accessed 12 June 2023

[15] Mustafa Plumber, ‘Rape On Woman’s Dead Body Will Not Attract Section 376 IPC: Karnataka High Court’ (LiveLaw, 31 May 2023) <Rape On Woman’s Dead Body Will Not Attract Section 376 IPC: Karnataka High Court (livelaw.in)> accessed 12 June 2023