Context: 

The Karnataka HC recently ruled that having sexual intercourse with the dead body of a woman can’t fall under the ambit of rape or unnatural offences under the IPC.

Background:

• Recently a person was sentenced to rigorous life imprisonment by the Sessions Court and was asked to pay a fine of Rs. 50,000 for murder.
• For raping the victim’s dead body, he was sentenced to another 10 years of rigorous imprisonment and a fine of Rs. 25,000.

What is necrophilia?

• Necrophilia is a morbid fascination with death and the dead and more particularly, an erotic attraction to corpses. (Observed by Karnataka High Court in “Rangaraju @Vajapeyi vs State of Karnataka case).
• It is a psychosexual disorder, classified under the DSM-IV, among a group of disorders, called “paraphilias,” including paedophilia, exhibitionism, and sexual masochism.
• Necrophilia could be the result of rage, experimentation, or lust rather than sexual necessity or habit.

Ruling of the Karnataka High Court:

• It upheld the trial court’s decision to convict and sentence him to life imprisonment for murder under Section 302 of the IPC.
• The high court acquitted the accused under Section 376 for raping the victim’s dead body, reasoning that there is no provision in the IPC to punish him for the same.
• Non-applicability of Section 375 or 377: The provisions of Sections 375 and 377 of the Indian Penal Code makes it clear that the dead body cannot be called as human or person. Thereby, these provisions of the IPC would not attract.
• Non-punishable offence under law: 
  • Adding that no offence punishable under Section 376 (punishment for rape) had taken place, the court clarified that sexual intercourse on a dead body is nothing but necrophilia.
  • The court opined that rape must be “accomplished with a person, not a dead body”. 
  • A dead body cannot consent to or protest a rape, nor can it be in fear of immediate and unlawful bodily injury
• National Human Rights Commission’s advisory, on “Upholding the Dignity and Protecting the Rights of the Dead: The court invoked the 2021 advisory of NHRC which states that there cannot be any physical exploitation or discrimination in the treatment of the body and also mentions the right to a decent and timely burial.

SC ruling in  Parmanand Katara, Advocate vs Union of India:

• The court relied on the 1989 SC ruling in  Parmanand Katara case which said that the dignity of a dead body must be maintained and respected 
• It established a corresponding duty on the state to ensure decent cremation is served to the person. 
• The right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also to his body after his death.

Is necrophilia an offence in India?

• As of date, the IPC does not list necrophilia as a specific offence under sexual offences mentioned in the code.
• The court mentioned that it could be brought under Section 297 as causing indignity to any human corpse if someone trespasses into a place for performing funeral rites or a depository for the remains of the dead.
• Section 297 of IPC: 
  • It requires the act of causing indignity to be accompanied by an intention to wound the feelings or insult the religion of any person.
  • The knowledge that any person’s feelings are likely to be wounded or their religion is likely to be insulted by such an act will make it an offence under Section 297.

Recommendations of the High Court:

• Amend Section 377 of IPC 
  1. To include dead bodies of men, women, and animals.
  2. To protect the dignity of the dead. 

• Criminalising necrophilia: It also offered an alternative that the Centre brings in a separate penal provision to criminalise necrophilia with life imprisonment up to 10 years with a fine.
• The court also ordered the installation of CCTVs in Karnataka morgues within six months and directed the government to maintain hygiene and privacy, ensure the security of clinical records and information, and sensitize mortuary staff.

News Source: Indian Express