“The dead cannot cry out for justice, it is the duty of the living to do so for them”
It is chilling to imagine that even in death, a person remains vulnerable to horrific crimes such as sexual assault. The very thought of violating a lifeless body is deeply unsettling and highlights a grave legal and moral dilemma. We are familiar with the concept of rape, which refers to “unlawful sexual activity, particularly involving non-consensual intercourse.” However, an important question arises: Does engaging in sexual activity with a corpse constitute rape? More importantly, does Indian law have any provisions to address this act?
Understanding Necrophilia
Necrophilia is a psychological disorder classified under the broader category of Paraphilias—conditions involving abnormal or deviant sexual desires. This disorder is predominantly observed in males and represents one of the most disturbing forms of deviant behaviour. A detailed study conducted by Jonathan P. Rosman and Philip J. on 122 cases identified three primary types of necrophiliac behaviour:
- Necrophilic Homicide – The most severe form, where an individual first commits murder and subsequently engages in sexual intercourse with the corpse.
- Regular Necrophilia – In this type, the perpetrator does not commit murder but seeks out corpses to fulfill their sexual desires.
- Romantic Necrophilia – The individual, unable to accept the death of a romantic partner, retains the corpse to maintain an emotional and physical connection.
The Legal Void in India
Despite the existence of necrophilia for centuries, Indian law does not explicitly criminalize it. Recently a significant case highlighting this gap is The State of Karnataka vs. Rangaraju, where the Chhattisgarh High Court ruled that since the accused raped a corpse, he could not be charged under Section 376 of the IPC, which defines rape. Instead, he was only convicted under Section 302 for murder. This decision was based on the legal interpretation that a dead body is not a “living person” under Sections 375 and 377 of the IPC. This legal loophole essentially allows perpetrators of necrophilia to escape liability.
Several high-profile cases, such as the The Nithari case, The Palghar case, The Jalandhar case, and The Karim ganj hospital cases, involved necrophilia, yet no specific legal action could be taken. The judiciary has repeatedly urged the legislature to address this issue, but no amendments have been made to include necrophilia under Indian criminal law.
The Supreme Court of India has consistently upheld the dignity of the dead. In Ashray Adhikhar Abhiyan vs. Union of India, the Court emphasized that Article 21 of the Indian Constitution, which guarantees the right to life and dignity, extends beyond death. This principle implies that violating a corpse should be recognized as a serious offense, akin to violating a living person’s dignity.
Necrophilia and Criminal Intent
Many necrophiliacs commit murder with the sole intention of engaging in sexual acts with the corpse. This suggests a clear premeditation and criminal intent. Given that intent is a crucial element in criminal law, necrophilia involving homicide should be treated as a compound offense. Psychological studies have linked necrophilia to disorders such as sexual sadism and antisocial personality disorder, indicating that these individuals pose a broader threat to society.
International Legal Perspective
Several countries have enacted laws to criminalize necrophilia:
- United Kingdom: Section 70 of the Sexual Offences Act, 2003, explicitly criminalizes necrophilia.
- Australia: Although necrophilia is not directly criminalized, Section 81C of the New South Wales Crimes Act, 1900, punishes any act that interferes with the integrity of a corpse, carrying a two-year prison sentence.
- United States: The legal approach varies by state. In Florida, necrophilia is a felony, while in Alaska, it is classified as a misdemeanor.
- New Zealand: Necrophilia is a criminal offense under Section 150 of the Crimes Act, 1961.
In contrast, India lacks specific legislation addressing necrophilia. Instead, it relies on indirect laws such as Section 297 of the IPC (now Section 301B of the Bharatiya Nyaya Sanhita). This provision penalizes acts that defile or cause indignity to a corpse. It states that if a person enters a place designated for worship, funeral rites, or a location where dead bodies are kept and engages in an act that desecrates or causes a nuisance to the body, they shall face imprisonment for up to one year, a fine, or both. However, the issue with this section lies in the ambiguity of the term “indignity,” which is highly subjective and open to varied interpretations. The lack of a clear definition results in inconsistent enforcement, thereby failing to comprehensively address the crime of necrophilia.
The Need for Legal Reform
Given the increasing cases of necrophilia, it is imperative that Indian lawmakers introduce a specific provision to criminalize this act. Different forms of necrophilia should be categorized under separate legal provisions, ensuring appropriate punishment for varying degrees of the crime. The absence of such laws not only undermines the dignity of the deceased but also exacerbates societal fears regarding personal safety, even in death.
Conclusion
The recent Chhattisgarh High Court case has once again brought the issue of necrophilia into public discourse, underscoring the urgent need for legal intervention. Despite its undeniable moral and ethical repugnance, necrophilia remains a legal gray area in India. The state must recognize the potential danger posed by necrophiliacs and implement stringent laws to deter such heinous crimes. By studying international legal frameworks, India can formulate comprehensive legislation to address and penalize necrophilia effectively. The dignity of the dead must be upheld, and justice must be served, even beyond the grave.
Author: Shreyankar Shahi is a 3rd Semester student at Dharmashastra National Law University, Jabalpur, Madhya Pradesh.
