"Necrophilia: The Taboo, the Law, and the Gray Area in India"

Introduction

The term "necrophilia,"is derived from the Greek terms philios (attraction to/love) and nekros (dead body) meaning a sexual attraction to a dead body. It can be characterized as a pursuit of sexual satisfaction through engaging in sexual intercourse with the corpse. The issue of necrophilia is still a gray area in Indian law. The Karnataka High Court (HC) recently acquitted a man who was accused of sexually abusing a 21-year-old woman's lifeless body after her murder. This raises concerns about the absence of laws protecting the dignity of the deceased.

In this case the Karnataka High Court lifted the ambiguity and observed that section 375 (rape) and section 377 do not apply to necrophilia."It is evident from a close reading of Sections 375 and 377 of the Indian Penal Code that a dead body cannot be referred to as a human or person. As a result, neither Section 375 nor Section 377's restrictions would apply. Further defining the same, the court quoted, “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’.”

The accused in the aforementioned case argued that he should be acquitted of rape because the act was committed after the woman was killed and because the IPC has no particular prohibition against necrophilia. The High Court then overturned the Sessions Court's ruling and found the accused guilty only of murder, stating the need for the central government to amend the IPC or create new legislation to make necrophilia a crime.

International Scenario

U.K

Section 70 of the Sexual Offences Act, 2003 criminalizes the act of sexual penetration to a corpse and prescribes a punishment of imprisonment for a term which should not exceed two years. But as per the records, there have been no prosecutions in the particular offense till now.

U.S.A

Necrophilia is not covered by any federal laws in the United States; instead, each state is free to make its own laws in this area. For instance: Necrophilia is punishable as a class 4 felony in Arizona, a misdemeanor in Hawaii, a class A misdemeanor in Alaska, and a second-degree felony in Florida, the United States of America. Similarly, several states in the United States of America have their own laws addressing dealing with necrophilia.

France

France has one of the bizarre practices in the world in cases of necrophilia. France believes that marrying the dead is even older than the “Magna Carta” and is termed as ghost marriage. There is a marriage called Posthumous marriage in which a living person marries a dead person, this is also called necrogamy. This practice is legal according to Article 171 of their Civil Code

New Zealand

Although necrophilia is not expressly punished under the New Zealand code, Section 150 of the New Zealand Crimes Act, 1961, grants imprisonment for a maximum of two years for "Misconduct in respect of human remains."

Legal Framework in India

Legal Personality of Dead:

The dead man is not a legal person. As soon as a man dies, he ceases to have a legal personality. Dead men do not remain as bearers of rights and duties. It is said that they have laid down their rights and duties with their death. Action personalis moritur cum persona– action dies with the death of a man. With death personality comes to an end. A dead man ceases to have any legal right or bound by any legal duty. However, Article 21, a fundamental right that continually evolves, recognizes the right of the deceased under the Indian Constitution. The Court held in Parmanand Katara v. Union of India that the right to life, fair treatment, and dignity under Article 21 extend to both the living and the dead. The Court further extended this ruling in Ashray Adhikar Abhiyan v. Union of India, wherein it emphasized the dignity of the deceased and reaffirmed that the right also extends to homeless deceased persons to have respectful cremations in accordance with their religious customs.

On the contrary, there are no such specific provisions under the Indian Penal Code (IPC) that deal with the aforementioned heinous and morally repugnant crime. When the code is closely examined, it becomes clear that Section 297 makes an ambiguous attempt to punish people for entering cemeteries and doing anything that degrades a deceased person's body. Nevertheless, this section disregards the deceased's right to respect and protection from sexual misbehavior. As such, it is insufficient to deal with cases of necrophilia that take place outside of cemeteries. One such instance is the Nithari serial killings, in which the murderer killed nineteen girls and had sex with their corpses in a bungalow. According to Section 3(42) "person" is defined in India. This definition states that living people, businesses, and groups of people are all considered legal persons, regardless of whether they have incorporated or not. Notably, individuals of the male or female gender, regardless of age, are defined as "man" and "woman" in Section 10 of IPC. Even though they are no longer living things, dead bodies nevertheless identify as "humans" after death. If all requirements are met, Section 377 of the IPC—which prohibits voluntary carnal intercourse against the natural order—may be applicable in this situation. After the Navtej Singh Johar ruling, it decriminalized all adult consensual sex, including homosexual sex, which marked a significant change in its stance. Within the framework of the "necrophilia" controversy, three requirements must be met in order to prove guilt:

• voluntary sexual relations
• a transgression of the natural order
• involving a human, a veterinary, or an animal.

It is recommended that certain terms be added to Section 377 in order to ensure that acts of necrophilia are clearly covered by this section and to ensure effective redressal.

The dead & consent

Since it is commonly accepted that a dead person cannot give consent, necrophilia lacks the crucial component of voluntariness. Even though necrophilia is an abnormal behavior, consent or voluntariness requirement cannot be met. It is evident from a close reading of IPC Sections 375 and 377 that a dead body cannot be referred to as a human or person. Thus, the Karnataka High Court declared, "the provisions of Section 375 or 377 would not be attracted." The reason for this is that, because it necessitates the absence of consent and the violation of a person's will, rape inherently involves an act against a living person. A dead body cannot be raped because it is incapable of giving consent, protesting, or feeling fear of immediate bodily harm. The concept of rape becomes redundant to a deceased person as its incapable to feel the outrage thus the concept of rape becomes inapplicable.

Necrophilia may be addressed under Section 297 of the IPC to meet the legal void while the established justification is being laid out. Intentionally hurting or insulting someone's religious sentiments or interfering with funeral rites in houses of worship or graveyards are punishable under Section 297. In a similar manner, necrophilia may be punished as a crime that offends religious views or causes emotional distress to others if the Court finds that the required legal elements of purpose are met. In response, the National Human Rights Commission's (NHRC) acting chair, Justice Prafulla Chandra Pant, suggested adopting laws that would protect the dignity of departed people. The third part of this section addresses the its the State's obligation to protect the rights of the deceased and to prohibit any kind of abuse or criminal activity with their body, regardless of the cause of death.

Crime and Punishment

Necrophilia is a psychological disorder that has frequently been a major motivator for criminals who are unable to obtain control over another person's body to turn to murder. An act must be extraordinarily uncommon and incapable of resulting in reproduction in order to be considered "against the order of nature." Although necrophilia is initially seen as being against the natural order, it might be difficult to classify in this category. Insofar as it impacts society as a whole, the case of Darbara Singh, often referred to as the “baby killer,” included an unsettling pattern of enticing victims—mostly young girls—with chocolates, candies, and other similar treats. After that, the accused would lead them to isolated areas where they would attempt to rape and slice their necks.

Due to unclear interpretation, the individual in the Guwahati case was taken into prison and charged under Section 306, 377 of the IPC, and Section 8 of the POCSO, in contrast to the recent Karnataka case or the Darbara Singh case. Increased punishments for these heinous acts are necessary in part because of this ambiguity. It is possible to establish a distinct legal position by applying harsh penalties. It is imperative that Sections 377 and 297 be amended immediately, or that new law be introduced that imposes longer prison sentences. It will be difficult to alter the public's psychological perspective of these crimes in the absence of strict legislation.

Furthermore, "attempt" is punishable under Section 511 of the IPC, and the reasoning presented in R v. Cheesman clarifies how cases like this can fall under this purview. According to this interpretation, an act that is performed with the intention of committing a crime, or that is a part of a sequence of acts that, if continued, would constitute the commission of the crime, is considered an attempt. When an offense is attempted, the offender's moral responsibility is deemed to be equal to that of a successful conviction, extending to set culpability.

Conclusion

Although the sections in the Indian Penal Code, 1860 clearly have wide ambit to include the crimes against the dead but ambiguity still persists because of no legislation and no clear precedents over the issue. Its true that in reality the number of cases of necrophilia is less as compared to rape, murder, theft, forgery or white-collar crimes but taking due care at the very initial stage is necessary to prevent aggressive societal implications. India is not alone struggling when it comes to penalizing the offence of necrophilia therefore needs a proper legal channel for dealing with such issues. Previously Section 377 of the IPC used to deal with unnatural offences which included intercourse with the dead but now only Section 297 is there; which is prima facie incompetent to save the dignity of the dead.

The DSM-V now includes "Necrophilia," a condition that was not previously recognized in India despite significant advancements in medical science. It is imperative that the fields of psychiatry and psychology advance in India because, in the absence of such advancements, it would be challenging to criminalize offenses that, with the right training, could be made punishable. The rehabilitation process ought to be crucial, but it also calls for investigation and analysis. It is imperative that strong and efficient provisions be made in order to differentiate between mentally ill individuals and actual offenders.

Disclaimer: The author affirms that this article is an entirely original work, never before submitted for publication at any journal, blog, or other publication avenue. Any unintentional resemblance to previously published material is purely coincidental. This article is intended solely for academic and scholarly discussion. The author takes personal responsibility for any potential infringement of intellectual property rights belonging to any individuals, organizations, governments, or institutions.