Having sex with dead body not an offence in India: Why a high court wants a law against necrophilia
The verdict in the murder and subsequent rape of a woman in Karnataka's Tumakuru district has triggered a debate on the need for a separate law to prevent sexual violation of the dead. The Karnataka High Court says sexual abuse of women's bodies in morgues is rampant.
By Ramesh Sharma: The dead can't speak, neither can they protest. So, it is left to the living to speak up for those who can't.
A 21-year-old woman was murdered and then raped in Tumakuru district of Karnataka in 2015. Following the trial, the Sessions Court convicted the accused on murder and rape charges. The accused appealed in the Karnataka High Court where a single-judge upheld his conviction on the two offences.
The accused then appealed before a division bench, which upheld the murder charge, but absolved him of the charge of “rape”, saying what the man committed was necrophilia, which was not an offence under any provision of the Indian Penal Code (IPC).
This order of the court has now stirred a debate over the right to dignity of a human corpse.
DIGNITY OF DEAD WOMEN
Not just that, another cold observation of the Karnataka High Court came as a mind-numbing shock, almost bordering on disbelief.
“It is brought to our notice that in most of the government and private hospitals where the dead bodies, especially of young women, are kept in the mortuary, the attendant who is appointed to guard them has sexual intercourse with the dead body,” the court said.
The court then went on add that it was high time the state government ensured that such crimes do not happen, thereby maintaining the dignity of the dead women.
“Unfortunately, in India, there is no specific law against necrophilia”, the high court division bench of Justice B Veerappa and Justice Venkatesh Naik stated, while calling upon the Centre to formulate a new law criminalising necrophilia in India.
KARNATAKA NECROPHILIA CASE NOT AN ISOLATED ONE
We often see news reports of rape-murder cases, but the 2015 Tumakuru case is that of rape after the murder a 21-year-old woman.
This isn't an isolated case.
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In August last year, a 23-year-old man in Assam's Udalguri district crept upon a woman taking a bath at a stream, hacked her to death and then raped her.
In June 2020, during Covid lockdown, a shopkeeper slit the throat of a 32-year-old woman customer who had a tiff with him. After killing her, the 30-year-old sexually assaulted the corpse.
In October 2015, three men dug out the body of a 26-year-old woman from a grave in Ghaziabad district and allegedly gang-raped the body.
Necrophilia also found a mention in the infamous Nithari serial rape and murder case of 2006. Surinder Kohli, the help at Moninder Singh Pandher's Noida residence, admitted to killing minor girls and having sex with their corpses.
RAPE OF CORPSE NOT RAPE?
In the Tumakuru case, while the division bench of the Karnataka High Court upheld the offence of murder against the accused, it said no case of rape under Section 375 (rape) could be made out as rape on a woman’s dead body was not an offence under IPC provisions.
READ | As handling of Covid victims sparks debate in India, what do courts say on rights of the dead
The bench pointed out that the ‘rape’ of the corpse would also not come within the scope of “unnatural offences” under Section 377 of IPC.
"A careful reading of Sections 375 and 377 of IPC makes it clear that a dead body cannot be called a human or person. Therefore, the provisions of Section 375 or 377 would not be attracted," the bench observed.
Saying that it was “high time” the Centre made changes to the IPC to make necrophilia an offence, the court recommended that the government either amend Section 377 of IPC or introduce a separate penal provision to criminalise necrophilia.
The accused had contended before the high court that as per the prosecution, the victim was first murdered and then her dead body was sexually assaulted. Therefore, the offence under Section 376 would not apply to him.
It was further contended that the act was nothing but necrophilia and because there was no specific provision in the Indian Penal Code to convict the accused, he should to be acquitted.
Given these submissions, the main issue before the high court division bench was whether the rape on a woman's dead body would attract the offence of rape under Section 375 of the IPC. Here is what the court observed in its judgment.
WHAT DID COURT SAY ON RAPE & NECROPHILIA
Drawing a distinction between rape and sexual assault on a woman’s dead body, the court said:
“Rape must be accomplished with a person, not a dead body. It must be accomplished against a person’s will. A dead body cannot consent to or protest a rape, nor can it be in fear of immediate or unlawful bodily injury. The essential of guilt of rape consists in the outrage to the person and feelings of victim of the rape. A dead body has no feelings of outrage. The sexual intercourse on dead body is nothing but necrophilia.”
READ | Delhi: Man walked 40 km in search of children to rape, kill them; convicted
Defining necrophilia, the court said: “It is a morbid fascination with death and the dead and more particularly, an erotic attraction to corpses. It is a psychosexual disorder and DSM-IV classifies it among a group of disorders called 'paraphilias', including pedophilia, exhibitionism and sexual masochism and names necrophilia as 'not otherwise specified'.”
“It is the specific case of prosecution that, the accused first murdered the victim and then had sexual intercourse with dead body. Thereby, it cannot be held as sexual offences or unnatural offence as defined under Sections 375 and 377 of the Indian Penal Code. Thereby, it cannot be termed as rape punishable under Section 376 of the Indian Penal Code. Utmost it can be considered as sadism, necrophilia and there is no offence made out to punish under Section 376 of the Indian Penal Code,” the court said.
In light of its observation about sexual assault on dead bodies of young women in hospital morgues, the Karnataka High Court also set out a set of guidelines for the state to implement within six months.
One of the directives to the state government is to ensure that CCTV cameras are installed in all hospital mortuaries in order to prevent any offence against the body of a woman.
The court also asked that the staff in government and private hospitals must be sensitised on how to handle the dead body and how to deal with the attendants of the deceased with sensitivity.
COUNTRIES WHERE NECROPHILIA IS AN OFFENCE
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. Will the right to dignity be extended to prevent sexual violation of corpses?
READ | Delhi woman gang raped by 5 men in Ghaziabad, 4 taken into custody
