Introduction
Necrophilia is a word of common usage; it is used to illustrate a sexual attraction or when a person engages in sexual acts with a dead body. It is attributed as a social taboo and is categorized as a deviant behavior in society. In many cases, necrophilia is often coupled with other paraphilias in a person, these other paraphilias can include cannibalism, necrophagia, and sadism.
Why do people resort to necrophilia?
The reason why a person may resort to necrophilia is different for every person. According to several surveys and studies, the most recurring motive was the impulse for a partner who is absolutely compliant and submissive at the same time. In simpler terms, people who undertake necrophilia are very much enticed to have sexual intercourse with a docile partner.
Necrophilia because it violates the sanctity and dignity of the dead, it is widely reviled and outlawed in the majority of jurisdictions. It is considered to be both a criminal offense and also a severe psychological disorder.
Background Of The Case
Karnataka High Court in its recent judgment in the case of Rangaraju v. State of Karnataka, delved into the nuances of necrophilia and how the Indian laws deal with it. The brief facts of the case were that a woman had gone to her computer classes, she did not return home on time, and her brother was under the belief that she might have gone to her friend’s house. The next morning, he heard rumors that a dead body of a girl has been found whose throat was slit. The brother of the victim reached the spot and recognized the body to be her sister’s. He also saw that the bottom clothing of the dead body was seen to be thrown separately which gave an apprehension of rape. Investigations began and the accused was apprehended, charges were framed under Section 302 and Section 376 of the Indian Penal Code. A very relevant set of facts were that the rape had been committed after the murder had been committed. The Sessions Court considering all the facts and evidence convicted the accused under both of these charges.
The law relating to necrophilia is very unclear under Indian criminal laws and no particular provision would find application over instances of necrophilia, this would be illustrated in the forthcoming chapters.
Proceedings of the case
Submissions before the court
The counsel on behalf of the appellant contended that the said act of the appellant is nothing but necrophilia and also brought the court’s attention to the fact that there is no express provision in the Indian Penal Code to convict the accused for the impugned act and thereby, the appeal be allowed.
The counsel on behalf of the appellant emphasized a plethora of cases, the most prominent being the case of Kozhipalliyalil Muhammad v. State, the hon’ble court, in this case, observed that the act of removing ornaments from a dead body is not equivalent to taking the property out of the possession of a person. A dead body cannot be equated with a living person. Therefore, the prosecution case that the accused had removed some jewels from a dead body is unsustainable in the eyes of the law and no case under Section 394 of the Indian Penal Code can be made out.
The counsel on behalf of the respondent countered the said submission by citing the case of Surendra Koli v. State of Uttar Pradesh and others, also called the Nithari Killings case, the court, in this case, observed that the depredations committed by the accused upon dead bodies of his victims cannot be turned a blind eye. The court laid down principles of bodily integrity, consent, and dignity and also observed that in the case of rape upon a dead body, all three of these principles are violated.
The learned Amicus Curiae in his submissions observed that although Indian criminal laws do not recognize ‘necrophilia’ as a crime in itself, the human rights of a dead person cannot be discounted. Article 21 of the Indian Constitution provides not only for the right to life with dignity and respect, but it also encompasses within its ambit the right to die in a dignified manner and ancillary rights of treatment after death and burial as had been authoritatively laid down by the Supreme Court in the case of Parmanand Kataria v. UOI,
It was also underlined that Section 297 of the Indian Penal Code is the only provision that even remotely addresses necrophilia, it provided that “any person who commits trespass in place of any worship, etc, offers any indignity to any human corpse, or causes disturbance to any persons”, but this provision cannot be taken as completely covering the domain and it can only be attracted when indignity to a human corpse has been established.
Discussions then moved toward Section 499’s Explanation I of the Indian Penal Code which provides that defamation against a deceased person can also be an offence but while conducting detailed scrutiny it becomes apparent that it deals with harming of feelings of the deceased’s family.
Another provision that can be argued here is Section 377 of the Indian Penal Code which provides that “Whoever voluntarily has sexual intercourse against the order of nature with any man, woman or animal.” Thereby, the relevant question for consideration is whether man and woman can include within their ambit ‘dead’. There are definitions in place for man and woman under Section 10 of the Indian Penal Code which defines it as being an individual of the male or female gender irrespective of age. But the usage of the word ‘age’ here relates to the age of a living person and not of the dead.
Mentions were also made of laws relating to necrophilia in other countries like the UK, New Zealand, Canada, and South Africa.
The counsel on behalf of the respondent raised the contention that the matter would fall under the domain of Section 375 of the Indian Penal Code as one of the grounds mentioned is when the victim is unable to communicate consent.
Court’s Observations
Upon these contentions, the court made a point that upon having a careful reading of the verbatim of Sections 375 and 377 of the Indian Penal Code, it becomes evident, the dead cannot be considered as human or person. Thereby, Section 375 or Section 377 would not find an application here and therefore, no offence has been committed under Section 376 of the Indian Penal Code and this was the nuance that was overlooked by the learned Sessions Judge.
The court also cited excerpts from Dr. Modi’s Book named “The Medical Jurisprudence and Toxicology”, wherein the legal status of a dead person has been provided:
“The personality of a human being may be said to Commence existence at birth and cease to exist at death. The dead are no longer persons in the eyes of the law. Their legal personality comes to an end at their death and they are destitute of rights and liabilities. Firstly, concerning a person’s body: The law deems that a living man is interested in the treatment to be awarded to his own dead body. Secondly, the reputation of the dead receives some degree of protection from criminal law in that it would be defamation to impute anything to a dead person, if the imputation would harm the reputation of that person if living. Thirdly, the most important matter in which the desires of a dead man are allowed by law to regulate the actions of the living is that of testamentary succession.”
The provision Section 46 of the Indian Penal Code defines death. The term death means the death of a human being unless the contrary is apparent from the context. Rape must be committed on a person and not a dead body. Rape is said to be committed when it is committed against a person’s will. No consent or protest can be raised by a dead body nor is there any apprehension of immediate and unlawful bodily injury.
The very essentiality for establishing rape is the outrage of a person and the feelings of the victim. A dead body holds no feelings of outrage. The sexual intercourse committed upon a dead body is nothing but necrophilia.
The court held that it is the extended right of a homeless deceased person to have an adequate cremation, following the religion to which he belongs. This is very much the duty of the state to ensure that this right is properly sanctioned. Article 21 of the Indian Constitution cannot be kept as a black letter of the law; it goes on to include the right to dignity and it also equates to a meaningful life and not mere animal-like living. The provisions of the Indian Penal Code also contemplate the rights of the deceased under its provisions, many of which have been discussed before.
The hon’ble court in its judgment laid down the basic principles for upholding the dignity and protecting the rights of the dead:
- No discrimination in the treatment of the body in any form.
- No physical exploitation
- Decent and timely burial/cremation
- To receive justice, in case of death due to crime
- To carry out the legal will
- No defamation after death upon the deceased
- No breach of privacy
The court also acknowledged the fact that in most of the government and private hospitals, where there are morgues and bodies of young women are kept, the attendant who is meant to guard, commits sexual intercourse on these bodies. This is high time for the appropriate government to take action. The court while concluding listed down some recommendations for the government:
- Provisions such as Section 377 of the Indian Penal Code be amended to include dead bodies within its ambit.
- Installation of CCTV cameras in all mortuaries
- The state government shall maintain:
a) Mortuary hygiene
b) Security of information
c) Maintaining the privacy of premises
d) Removing physical and infrastructural barriers
e) Sensitization of staff
Conclusion
The current law is very unclear as to the position of dead bodies. This vagueness or ambiguity cannot be cited as grounds to justify the ravaging away of the rights of a dead person, it continues to possess certain rights. The term “person” should not be interpreted narrowly to exclude the dignity of a dead body, which was once a living human being. If the deceased’s religious beliefs can be determined, their body should be cremated or buried following those beliefs.
The State, as a welfare state, is legally obligated to protect the rights of the deceased, including the right to a decent and dignified cremation or burial following the deceased’s religious beliefs. The Central Government needs to take immediate action to uphold the dignity of deceased individuals, regardless of gender or species. This can be achieved by revising Section 377 of the Indian Penal Code to explicitly include provisions that address offenses such as necrophilia or sadism committed against the bodies of deceased women. Similar measures have already been implemented in countries like the United Kingdom, Canada, New Zealand, South Africa, and India must ensure the dignity of all deceased persons, including women.
This article is written and submitted by Devam Krishnan during his course of internship at B&B Associates LLP. Devam is a B.A. LLB 3rd year student at National University of Study and Research in Law, Ranchi.
