Necrophilia – a crime or not

Necrophilia – a crime or not 

AUTHOR – Sanya Goel , 2nd year law student , MAIMS, Delhi

In the recent judgement of Karnataka high court, the division bench upheld that 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.

MEANING AND ORIGIN 

The term “Necrophilia” is derived from two Greek words  philios (attraction to/love) and nekros (dead body). It involves sexual attraction towards to a dead body.

According to World Health Organization (WHO), Necrophilia is classified in its International Classification of Diseases (ICD) diagnostic manual. American Psychiatric Association has also classified necrophilia as a paraphilia in its Diagnostic and Statistical Manual (DSM).

ABSENCE OF SPECIAL PROVISION

Referring to laws in the United Kingdom, Canada, New Zealand, and South Africa where necrophilia is an offence, India has no such specific provisions for necrophilia. In the famous Tumakuru  case  the court said that “unfortunately in India no specific legislation is enacted, including under the provisions of IPC for the purpose of upholding dignity and protecting rights and crime against the dead body of the woman.”

Upon careful examination of Sections 375 and 377 of the Indian Penal Code, the bench concluded that the provisions of these sections do not extend to actions against a dead body. The court emphasized that the terms "human" or "person" cannot be ascribed to a deceased individual. Therefore, according to the court, the offenses outlined in Sections 375 and 377 of the IPC would not apply in cases of sexual crimes committed against a dead body.

CASES OF NECROPHILIA IN INDIA 

One of the most prominent cases of necrophilia in India is the Nithari case (2006) in which the accused and his servant were taken into custody after it was discovered that 19 girls were missing after visiting the house of the accused. During the investigation, several pornographic CDs and naked pictures of different women and children were discovered from his house and several cases of murder, rape, abduction, sexual assault against children, and cannibalism were filed against the accused and his servant. The servant confessed the crimes and stated that the accused killed 16 people (9 female children, 2 male children, and 5 adult women). He used to kill the victims in his living room then dragged the bodies upstairs in a bathroom and attempts to rape them and then chopped them into small pieces to cook them and threw the rest into the drainage behind his bungalow. 

WAY FORWARD AND SUGESTIONS 

It is high time for government to consider the inclusion of offence like necrophilia due to grave nature. As a conclusion there are possibilities, either to amend article  377 and include the provision of dead bodies in it or introducing a special provision for heinous crime like necrophilia. Taking inspiration from other countries, India should also take steps to criminalise necrophilia.

SOURCES 

1. https://ohrh.law.ox.ac.uk/beyond-the-grave-addressing-necrophilia-in-indias-legal-

2. https://blog.ipleaders.in/necrophilia-rights-dead/

3. https://www.legalserviceindia.com/legal/article-11729