RAPE OF A DEAD BODY: OFFENCE OR NOT?

 A DISTURBING TOPIC By reading the blog title, some of you might have found it a bit disturbing, and it is also true that, as a civilised hu...

 A DISTURBING TOPIC

By reading the blog title, some of you might have found it a bit disturbing, and it is also true that, as a civilised human being, no one can imagine such a ridiculous and gruesome act. But at the same time, being a law student or a part of the legal fraternity, we should also know about this aspect.

Let's begin with some facts which will make it easier to relate to this topic.

In scientific terminology, there is the term "NECROPHILIA"  which means- "Sexual attraction or sexual act involving a corpse(dead body).

Yes, this term exists in science, which means such acts must have happened in different corners of the world. So let's see the legal aspect related to this term or related to this topic.

NORMALLY, RAPE AS AN OFFENCE

According to SECTION 375 of THE INDIAN PENAL CODE,1860 "Rape" is termed as an offence in the following language: "Sexual intercourse with a woman without her consent or against her will", this is the basic gist of the section.

Now, according to this section, rape can only be committed on a woman and the term "Woman" is defined in SECTION 10 of THE INDIAN PENAL CODE and states that: "The word "woman" denotes a female human being of any age".

 Also, the term "Life" is defined under SECTION 45 of IPC as "The word "life" denotes the life of a human being unless the contrary appears from the context.

Now, by having a look at the above sections, prima facie it appears that an offence of rape can be committed on a woman who has life, because a woman with life only will be able to give her consent or express her will for sexual intercourse, in the absence of that the sexual intercourse will amount to the rape of a woman.

So, what will happen if a person according to the theory of NECROPHILIA is sexually attracted towards a dead body and commits sexual intercourse with the dead body? Will he be free to do that just because the offence of rape can be only committed on a Living woman? OR there is some other provision or any other law in which such a person can be held guilty?

LAW ON RAPE OF A DEAD BODY

Let me make it clear that now we cannot use the term "rape" as it is used in the heading above because it clear that it cannot be committed on a dead body. So if any person commits sexual intercourse with a dead body then, such person shall be held liable according to SECTION 297 of THE INDIAN PENAL CODE, 1860.

SECTION 297 says that: "If a person, with the intention of wounding the feelings of any person, or with the knowledge that the feelings of any person are likely to be wounded, commits any trespass in any place of worship or on any place of the sepulchre, or any place set apart from the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies, shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

In the above section, the important term is "indignity to any human corpse", now what consists of indignity?

The term "indignity" is nowhere defined in the Code, so we shall go according to the Literal rule of interpretation, that is, in common parlance, it means that "A situation that makes you feel embarrassed because you are not treated with respect".

Also, with the committing of such act of indignity the other essentials of the section, that is, Wounding the feelings of any person is also fulfilled because such act is most prone to wound the feelings of persons.

"Indignity to any human corpse" is a very wide aspect covered, according to which, all the various acts which are termed as an offence if committed on a living person are covered, that is, FOR EXAMPLE: (A) If a dead body is lying and you go and start hitting it with a stick. This act on a living person will be termed an offence of "Hurt" (SECTION 319 IPC), but when it is committed on a dead body, it cannot be termed as hurt, and will be covered under section 297 of IPC.

(B) If a dead body is lying in a hospital and you cut its leg. This shall be termed as an offence of "Grievous hurt" (SECTION 320) if committed on a living person, but when it is done on a dead body, it will be covered under section 297 of IPC.

In the same manner, if a sexual act is committed with a dead body, then it cannot be termed as an offence of "Rape" under IPC but will be covered under section 297 IPC.

CASE LAWS

Parmanand Katara vs. UOI (1995 (3) scc 248)

"Right to dignity and fair treatment under Article 21 of the constitution is not only available to a living man, but also to his dead body".

Ashray Adhikar vs. UOI (2002) SC

" The court had upheld the right of the homeless deceased to have a decent burial place as per their religious beliefs".

OTHER OFFENCES ON A DEAD BODY

Besides, Section 297 IPC, the other section where it is mentioned about the dead body of a deceased person is SECTION 499 IPC which defines the offence of "Defamation".

According to explanation 1 of Section 499, "It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person of living, and is intended to be hurtful to the feelings of his family or other near relatives".

FOR EXAMPLE: If a person is lying dead, and you go there, where many people are mourning on his death and you say "He was a thief in his life and lived life like a thief".

If your statement does not fall under any of the 10 exceptions provided under section 499 IPC, that is, if your statement is not true (it is one of the 10 exceptions), then you will be held guilty for imprisonment which may extend to 2 years or with fine or both.

CONCLUSION

In this pandemic time, we have witnessed around us that many dead bodies are lying unattended, some dead bodies are even not getting the final funeral rites according to its religion. Dead bodies are immersed as it is in river without performing any religious rites.

These all acts are in some or the other manner is an indignity to a human corpse. But, keeping in mind the plight with which people are going through, there is no place to take action for this and there is no one to take action.

So, it will not be false to say that, SECTION 297 IPC has just remained a dormant provision of our law.

To read my previous blogs you may visit Lawionsoflaw.blogspot.com

As a reader of this blog, I invite you to comment your views on this.

THANK YOU 

Nikhil Tak (campus Law Centre, Delhi University).