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Should Necrophilia Be Considered As Offence Of Rape Or Not?

The word necrophilia is Derived from the Greek words "Philips" (love) and "nekros" (dead body), the term "necrophilia" means sexual attraction to and/or engagement in sexual acts with corpses. As the nature of necrophilia is itself a secretive nature it causes the inability of victims to report such acts (as they are already dead), it remains challenging to determine the true statistics of necrophilia.

World Health Organization and the American Psychiatric Association has recognized its significance as a disorder internationally and classified necrophilia as a paraphilia (a condition characterized by abnormal desires) in their diagnostic manuals.

Indian Scenario
In the Karnataka High Court judgment of 2015 in which a young women was murdered then raped, the court noted that the accused engaged in sexual intercourse with a dead body. However, the court determined that this act does not qualify as rape under Section 375 of the Indian Penal Code (IPC'). This is because rape requires the involvement of a living human being, and a dead body cannot be considered as such. Adding that no offense 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 Supreme Court held in the case of Parmanand Katara that Article 21 enshrines the rights to dignity for both living people and the dead, and this was reaffirmed in the case of Ramji Singh. However, there is no specific provision in the IPC criminalizing necrophilia. Although it could potentially be understood as an "unnatural sexual act" under Section 377 (voluntary carnal intercourse against the order of nature with any man, woman, or animal), the provision does not specifically list �corpse intercourse‟ within it.

Presently, Section 297 of I.P.C makes it an offense to trespass on a burial ground or to cause indignity to a corpse. It reads: Whoever, with the intention of wounding the feelings of any person, or of insulting the religion of any person, commits any trespass in any place of the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse, shall be punished with imprisonment� for a term which may extend to one year, or with fine, or with both.

It is evident and clear that trespassing on burial grounds could be a precursor to an accusation of necrophilia, but, for section 297 to apply, it would need to be done with the intention of wounding or insulting religious feelings.

Is Necrophilia A Mental Disorder?

As per section 84 of Indica Penal Code: Act of a person of unsound mind.-Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. By bare perusal of sec.84 it is clear that the terms unsoundness of mind and insanity are the terms used for referring to the same concept. The only difference between the two terms is that the phrase Unsoundness of mind' is used in Indian law while the term insanity is used in the English law.

Mcnaughton Rule And The Origin Of Section 84 Of The Indian Penel Code, 1860

An important point which is very significant to be known is that the provision of unsoundness of mind' under Indian law has it origin from the McNaughton Rule under the English Law as established in a decision of the House of Lords in the case of R v Daniel McNaughton by the judiciary of England. It should also be taken a note of that the McNaughton rules is also one of the important test to determine insanity along with few other tests.

In that case, in regards to the protection of insanity, the House of Lords devised the controversial McNaughton Rules based on the five questions which had been submitted to them. The connection came to be made in a case where McNaughton was charged with the murder by shooting Edward Drummond, who was England's then-Prime Minister Sir Robert Peel's Pvt Secretary.

The accused McNaughton provided medical evidence to show he was not in a sound state of mind at the time of committing the act. He said he had an irrational delusion that the Prime Minister was the only cause behind all of his problems. He had also said he mistook Drummond for the prime minister as a result of the mad delusion and attempted his assassination by shooting him. The plea of insanity was admitted, and on the ground of insanity McNaughton was found not guilty.

The aforementioned decision was the focus of controversy in the House of Lords. It was then decided to take the opinions of all the judges on the rules concerning such cases. Five questions were then presented to the Lords of Justice. A review of the responses to questions 2 and 3 and the conditions of section 84 of the IPC, 1860 would clearly indicate that the section was modelled on that answers.

In view of the critique of the McNaughton Laws in various countries like Britain, the Law Commission of India revisited section 84 of the IPC, 1860, but came to the conclusion that the statute of insanity according to section 84 of the IPC, 1860, does not require any reform in Indian circumstances. Section 84 prescribes the substantive standard of liability in cases of suspected mental insanity.

The Penal Code does not have a definition of unsoundness of mind. However, this term was primarily viewed as comparable to insanity by the Courts. But no clear meaning of the word insanity itself. It is a term used to describe mental disorder in varying degrees. And a mentally ill person is not ipso facto excluded from criminal liability. A distinction is to be made between legal insanity and medical insanity. A Court is concerned with legal insanity, and not with medical insanity.

Now come to the necrophilia, The Diagnostic and Statistical Manual of Mental Disorders, Fifth edition (DSM-5) does not assign any specific or unique code to necrophilia. Instead along with several other uncommon paraphilia ,necrophilia is grouped under code 302.9

As I advanced my full length argument in the relevant provisions of law and its concept of section 84 to sum up the same I would like to state that there is no definition of unsoundness of mind in I.P.C the court have, however mainly treated this expression as equivalent to insanity.

But the term insanity itself has no precise definition in law. It is a term used to describe varying degree of mental disorder. So it is evident that the person suffering from necrophilia do not know nature and consequences of act and hence they are entitled to get defense of section 84 of I.P.C as it amounts to mental disorder which is equivalent to insanity.

As my contention is that it is imperative for the Government to consider the inclusion of a specific offense of necrophilia in Indian criminal law, as existing provisions may not cover acts amounting to necrophilia. As a solution, two possibilities can be proposed: either amending Section 377 of the IPC to explicitly include acts involving dead bodies, or introducing a separate penal provision specifically targeting necrophilia. The suggested punishment would be imprisonment for up to 10 years (the minimum sentence for a rape conviction), accompanied by a fine.

Taking inspiration from the UK's Sexual Offences Act of 2003, which already recognizes necrophilia as an offense under Section 70, there is a need for India to learn from other countries' legal frameworks. Several countries such as Canada, New Zealand, and South Africa have already prohibited necrophilia through distinct legislation.

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