Do We Need Updated Necrophilia Laws in India?

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Necrophilia can be simply defined as an act or desire of having sexual intercourse with a corpse or a kind of disorder where generally there is an abnormal fantasy of lovemaking with a cadaver. The term necrophilia was introduced by a Belgium physician Joseph Guislain. It is derived from the Greek word nekros which means or is related to corpse/dead body and philia which means love/friendship.

Necrophilia is prevalent all around the globe, and has forced a few countries to pass strict legislation to corner the same by fabricating a sense of fright in the offender. But it’s pertinent to note that most countries do not categorize such an eerie act as a crime.

Indian laws in this regard lie between these two sets of countries. Although this act is penalized in a sense, under Section 297 of the Indian Penal Code, in the form of the offense of “Trespassing on burial places etc.”; there lie several limitations with the said provision. For instance, the punishment offered is of a much lesser degree than would be required to inculcate a sense of deterrence in the offender.

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Delving into the Indian Laws vis-à-vis Necrophilia

A necrophilic custom prevailed once upon a time in India, where the fiancé of women who died after the engagement had to deflower her before her cremation. Although the lawmakers in India have tried to create a statutory provision punishing the offender of defiling the corpse, the law in this regard seems to be very bleak.

According to Section 297 of IPC, “whoever enters religious place or sepulture with the intention and knowledge of hurting religious feelings and sacraments of any person, commits the offence of ‘trespass to burial grounds’ and is liable to be punished with imprisonment for a term which may extend to one year, or with fine, or with both.”

Therefore, for a person to be accused of necrophilia, the foremost necessity is trespass to burial grounds, which fails to accomplish punishing necrophilia in itself. There are a number of reasons why this provision is insufficient to cover necrophiliac behaviour.

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First and foremost, corpses and cadavers can be found at a host of other places, besides burial grounds, such as morgues, crimes scenes etc. Secondly, persons like morgue keepers, guards of the morgue or guards of the burial grounds cannot be held liable even though they have been caught indulging in any such act, as they didn’t commit a trespass.

Lastly, even if it is proved by the prosecution beyond any reasonable doubt that a person defiled a corpse by trespassing into the burial ground, he would be punished with an imprisonment of not more than one year or fine or both.

But it is pertinent to note here that in any sagacious human’s view, the punishment, not extending one year, is very less. It can hardly be believed that punishment of such degree would be enough to intimidate a criminal.

The most prominent case of necrophilia in India was the Nithari case of 2006 where serial killers Surendra Koli and Mohinder Singh Pandher were under the radar after it was discovered that 19 girls were missing. It was later found that the duo used to murder the girls and thereafter had sexual intercourse with the body.

As evidence, several pornographic CDs and pictures of naked children and women were recovered by the police officials from their house. Although the accused was convicted under several provisions of IPC, he was not convicted for having sexual intercourse with a dead body, as the Indian Penal Code has no room for any such provision.

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Back in 2018, a 20-year old labourer in Gurugram confessed that he raped the corpse of many of his victims just to satisfy his hunger for sex and make the most of his catch. Adding to this sorry tale, it was further found in another case in U.P that a deaf and mute man initially attempted to rape the woman but when she resisted, he strangled her to death and raped her corpse.

There are numerous such instances where the accused murdered the girl so that he could have sexual intercourse with her without any resistance. It is shocking to see that even after so many years; these barbarous acts have not stopped. Recently in Palghar, a 30-year-old shopkeeper murdered a 32-year-old woman customer and later had sexual intercourse with her.

The unsuccessful debate as to the applicability of Section 377 to be invoked in cases of necrophilia has been ongoing for a long time. The technical difficulty in applying this provision to cases of necrophilia is that the provision mandates the “voluntary” engagement in carnal intercourse against the order of nature with any man, woman or animal.

While sexual intercourse with a corpse is squarely against the order of nature, the element of voluntariness remains unsatisfied in necrophilia. Hence the law seems redundant in such cases.

The International Scenario: Analyzing the Laws of Other Countries

A flawless law cannot be created until and unless we are open enough to inculcate the ideas of international communities. The same applies to the Indian laws which are amended on a regular basis to redress the loopholes in the existing laws. A similar amendment is required when it comes to barbarous crimes like necrophilia, and the international laws have somewhat paved the path for the same.

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In the United States of America, there is as such no law made by the Center, but various Federal States have made different laws criminalizing necrophilia. As far as the law of New Zealand in this regard is concerned, Section 50 of the Crimes Act, 1961, provides for a term of 2 years of imprisonment if any person does any act which harms the dignity of the corpse, whether buried or unburied.

The South African Government was also agile to formulate a law, making necrophilia a criminal offence. Section 14 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 prohibits the commission of a sexual act with a corpse.

Canadian law also categorizes the act of defiling the dead as illegal. Section 182 of the Criminal Code of Canada, 1985 states that “whosoever improperly or indecently interferes with or offers any indignity to a dead human body or human remains, whether buried or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.”

Although the wording of both the Indian and the Canadian provision seems similar, the Canadian provision is wider and includes any person under its ambit, as against the Indian provision which includes only those persons who have performed an act of trespassing to the burial grounds. Also, the punishment designated by the Canadian Law is five times more than the Indian Law.

Ameliorating the Indian Laws

The barbarous act of necrophilia is not only a crime against society. denying the basic right of dignified burial, but also a crime against the sentiments of the deceased. Despite this, the law in this regard is static and obsolete. But the country seems to be in dire need of better laws.

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The term of imprisonment stipulated in Section 297 against such a crime should be increased so as to create a deterrent effect among people, because without laws that severely punish such criminal acts, change would be far-fetched.

Also, the Indian laws in this regard seem ambiguous and require amendments in addition to an increase in punishment. It is high time that amendments in Section 297 and 377 should be made or a separate penal provision should be inserted. to depict a clear perspective of law in this regard with stringent punishments.

The word ‘trespass’could be excluded from the purview of Section 297 to ensure that no person, not even the guards of the burial grounds go scot-free. Secondly, the word ‘corpse’ could be included in Section 377 in addition to man, woman, and animal which would attract Section 377 without any doubt in the case of necrophilia.

It is often said and believed by many that “prevention is better than cure”. India although having overlooked the phase of averting necrophilia could focus on curing it by amending the penal provisions, before this menace furthers.

Authors: Zevesh Modi  and Priyanka Guleria from National University of Study and Research in Law (NUSRL), Ranchi, India.

Ediror: Astha Garg, Junior Editor, LexLife India.

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