What is necrophilia and is it an offence in India?

What was the case before the Karnataka High Court?

On June 25, 2015, a 21-year-old woman was returning home after her computer class, when the accused Rangaraju held her, shut her mouth, and dragged her to a nearby bush. Following this, he slit the woman’s throat and murdered her, an offence punishable under Section 302 IPC, and after that “raped” her.

After the police registered a case, they obtained a voluntary statement from the accused, following which they filed the chargesheet. Taking cognizance of the offence, the magistrate sent the matter to the sessions judge, who formed charges against the accused for offences of murder and rape under Sections 302 and 376 IPC.

Examining the evidence, the session’s judge found that the prosecution had proved beyond reasonable doubt that the accused committed murder and subsequently “raped” the victim’s body. The accused was sentenced to rigorous life imprisonment and 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. Consequently, an appeal was filed before the Karnataka High Court.

What did the court hold?

While the trial court’s decision to convict and sentence him to life imprisonment for murder under Section 302 of the IPC was upheld, the high court acquitted him 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.

“Admittedly, the accused had sexual intercourse on the dead body,” the court observed. However, whether it would amount to an offence under Sections 375 (rape) and 377 (unnatural offences) remained to be seen.

“A careful reading of 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, the provisions of Section 375 or 377 of the Indian Penal Code would not attract,” the court said.

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”

Under Section 46 of the IPC, the court said that “death” denotes the “death of a human being”. Therefore, 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,” the court said while adding that it also doesn’t have any feelings of outrage.

Additionally, the court relied on the 1989 SC ruling in “Pt Parmanand Katara, Advocate vs Union of India,” which said that the dignity of a dead body must be maintained and respected while establishing 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,” the ruling said.

Besides this, the court invoked the 2021 National Human Rights Commission’s advisory, on “Upholding the Dignity and Protecting the Rights of the Dead,” 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.

What is necrophilia?

The Karnataka High Court in “Rangaraju @Vajapeyi vs State of Karnataka” observed that “necrophilia” is a morbid fascination with death and the dead and more particularly, an erotic attraction to corpses.

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,” the court noted.

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, but 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.

However, Section 297 requires the act of causing indignity to be accompanied by an intention to wound the feelings or insult the religion of any person. Moreover, 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.

Observing that in the present case, the ingredients of Section 297 were missing, the court said that, “utmost it can be considered as sadism, necrophilia and there is no offence made out to punish under Section 376 of the Indian Penal Code.” It also asked the Centre to amend the law.

Which countries prohibit necrophilia?

While India does not have any specific provision punishing necrophilia, the United Kingdom’s Sexual Offences Act, 2003, includes necrophilia as an offence under Section 70, which makes “sexual penetration of a corpse” an offence punishable with six months to two years imprisonment.

Besides this, Canada, New Zealand, and South Africa, too, prohibit necrophilia under different laws.

Since India doesn’t have any specific law that punishes necrophilia, the Karnataka High Court made some recommendations to the Central government for including it under Section 377 of the IPC or as a new provision.

What recommendations were made to the Centre?

Asserting that it is “high time” for the Centre to amend the provisions of Section 377 of the IPC to include dead bodies, the court 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.