INTRODUCTION

India is a land of bizarre rituals and superstitions. People indulge in a large number of superstitious beliefs which often leads to fatal consequences. The idea of incest is considered to be a social taboo in many cultures and societies.

Incest is sexual activity between closely related family members or relatives. Basically, incest involves sexual activity between people in consanguinity and sometimes in relations which are made through affinity, adoption, clan, or lineage. The legal definition of incest is the crime of sexual relations or marriage taking place between a man and a woman who are so closely linked by blood or affinity that such activity is prohibited by law. Incest in India is something in the grey area of law as it is a very ambiguous concept. Many developed nations in the world have criminalised incest, but till now the Indian Penal Code, 1860 doesn’t have any explicit provision stating incest as an offence. But the questions arise- is incest really a crime, if yes then to what extent? What consequences does it have?

CONCEPT OF INCEST

The English word incest is derived from the Latin term incestus, which generally means impure or unchaste. The literal meaning also suggests that incest is not something very natural and a pure practice. In some countries, incest is considered totally legal and in some it’s legal taking into consideration a few exceptions. Laws and the punishments associated with engaging in incest vary state-wise. The majority of states have laws that make incest illegal. Incest is punishable by death penalty in countries such as Brunei, Iran, Nigeria, Somalia, UAE, and Sudan. India, Argentina, Brazil, Japan are some of the major countries which are yet to criminalize the menace of incest.

Consanguinity and incest is very common in India specially among the Muslim communities and the south Indians. Incestuous relations is prevalent in Hindu communities too. Statistics reveals that in-relation marriage, specially cousin marriage and incest is very common amongst the south- Indian Hindus, some of them are even Brahmins.

Incestuous relationships can be of various categories. It can be between adults and children, between childhood siblings or between two consenting adults. Childhood sibling-sibling incest is widely common but very rarely reported. It takes the form of child-on-child sexual abuse when it occurs without mutual consent or as a result of oppression. Incestuous relations between two adults however is considered as a mere attraction and these cases are not often reported. Incest between an adult family member and a child is usually considered a form of child sexual abuse, also known as child incestuous abuse. This has been the most reported form of incest. Such incestuous relationships with children cannot be justified on any grounds and require criminal redressal on an urgent basis.

INCEST AS A CRIME IN INDIA

An act becomes a crime only when there is specific legislation supporting it. The act, even it is wrong on the basis of morality and virtue, cannot be declared as illegal and crime. For asserting an act as a crime, it’s mandatory to have some rules regulations and laws accompanying it.

There is no specific legislation or IPC provisions that expressly declares incestuous relationship a crime. Therefore, a person cannot be held criminally liable for involving in an incestuous relationship, despite of the fact that it offends the sentiments of the society and is frowned upon. The crime of rape under IPC is too specific that it only covers intercourse in its ambit. It is also not a gender-neutral provision. Most of the sexual offences against women are covered under Section 354 of the IPC as outraging the modesty of women. But it’s a bailable offence, thus making the provision less stringent.

However, some personal laws condemn the act of incest to a certain degree.

LAWS REGARDING INCEST IN INDIA

1. HINDU PERSONAL LAW

The Hindu Marriage Act 1955 declares certain type of marriages void-ab-initio. Those marriages ae not valid and supportable in the eyes of law. Section 5 of the Hindu Marriage Act 1955 specifies six conditions to consider a marriage as a valid one. Upon doing an interpretation of Section 5 (iv) of the Act, the parties P and Q (for say) would be in a prohibited form of relationship if –

· They are linear descendants (mother and son) respectively.

· They are mother-in-law and son-in law or stepfather and stepdaughter, respectively.

· They are siblings.

· They are uncle and niece or aunt and nephew.

Section 5 (v) of the Act states that marriage between two Hindus is solemnized only if they are not sapindas of each other unless the custom or usage governing each of them permits of a marriage between the two. Sapinda relationship generally means when the two persons have a common ancestor. Section 3 (f) of Hindu Marriage Act defines such relationship. Therefore, incest marriage is prohibited among Hindus if seen from the eyes of law.

2. MUSLIM PERSONAL LAW

Consanguineous marriage and incest is widely favoured in a large majority of the world’s Islamic populations. It is also predominant in many Indian states. But, in the eyes of Muslim personal laws, incestuous relationships are not acceptable. Under the Muslim jurisprudence, there are two different denominations ‘Shia’ and ‘Sunni.’

Shia law prohibits three degrees of relationship- consanguinity, affinity, and fosterage. Consanguinity prohibits a marriage if the parties to the marriage stem from the same parentage or kinship. Affinity is the kinship relationship created or existing between two people as a result of someone’s marriage. For instance, if it is a man, then he is prohibited from marrying his wife’s mother or wife’s grandmother, wife’s daughter, or wife’ grand-daughter, wife of father or grandfather. The case will be vice versa in case of a woman. Fosterage is technically known as rada in Sharia Muslim law. Any women other than the biological mother from whom the person has suckled under the age of two, then the relationship becomes a relationship by fosterage. A person is prohibited from marrying his foster-mother, foster-son’s wife, foster-sister, and even foster-siblings.

In Sunni law, there are specific exceptions to the prohibition of fosterage. A Sunni man can contract a valid form of marriage with a woman of foster relation.

However, first cousin marriage is allowed in Muslim community in India and is not considered as an incest.

3. INCEST UNDER SPECIAL MARRIAGE ACT 1954

The Special Marriage Act (SMA), enacted in 1954 was meant to be a legislation to govern marriages that could not be solemnised according to religious customs, essentially inter-faith, or inter-caste marriages. Like all the personal laws regarding marriage, the Special Marriage Act also prohibits marriage between blood relations. Section 4 of the SMA clearly specifies the conditions of solemnization of special marriages which includes the provision that the parties should not be in any prohibited relationship. The concept of prohibited relationship broadly covers incest, as well as marriages between first cousins, and certain relations by marriage as already discussed above. The act expressly declares that marriage between such relations shall be null and void.

4. INDIAN BILLS REGARDING INCEST

Apart from the personal laws and the Special Marriage Act 1954, some bills were introduced in the Indian Parliament solely for the purpose of controlling the menace of incest. The Incest Offences Bill, 2009 was introduced in the Rajya Sabha on July 31, 2009. It provides for the punishment of the offences related to incest and matters connected therewith. The Incest and Sexual Abuse in Family (Offences) Bill, 2010 was introduced on February 25, 2011 to define the offences relating to incest and sexual abuse in family and prescribe the special procedure for punishment for the offences relating to incest and sexual abuse in family and matters connected therewith. Besides, the Incest Offences Bill, 2012 also speaks in favour of criminalising incest. Except for some negligible differences, all these bills provide strict punishments for abusers being charged with incest. They also define the close family members who could legally be guilty of incest, and the burden of proof is put on the accused with trials which are to be carried out under the provisions of the Code of Criminal Procedure, 1973. Unfortunately, none of these bills have been enacted by the Parliament till date.

JUVENILE INCEST

We tell our children to be aware of strangers; but we forget to consider the fact that danger can be inside the house also. We don’t tell them to remain careful within own house as well and to be vociferous and frank if anything unsuitable happens within the family. Most of the people ignore the happenings, but it is a very harsh reality that juvenile incest happens across every strata of the society. It usually takes the form of child sexual abuse and is an alarming problem. Child sexual abuse is an irresistible human right issue and undoubtedly a public health concern. Research has indicated that Close-knit family life in India masks an alarming amount of sexual abuse of children and teenage girls by family members. Both boys and girls are the victims of juvenile incest. Such cases of child abuse are difficult to trace as 90% of the cases happen with known people, with reliable and trusted people inside the family and an external agency cannot enter a family unit in India. A 2007 study conducted by the Ministry of Women and Child Development revealed that 53.22% of children faced sexual abuse and in almost half of these cases, the abusers were known to them. Delhi organisation RAHI said 76% of respondents to its survey had been abused when they were children, 40% of those by a family member. In one study that developed profound conversations, 30% of men and 40% of women reported childhood sexual molestation which included genital contact. Half of the perpetrators were family members, and in 80% of the cases other family members had knowledge of the abuse. The worst scenario in the cases of child incest is the other family members though aware of the happenings either doesn’t believe their children or simply ignore and excuse them. To avoid infamy and for the sake of protecting their reputation within the community, families hide anything and everything that would jeopardize their name. In some cases, many children don’t even disclose their abuse in fear of their parents or other elders.

A recent news of February 2020 showed that father of a 16-years old daughter was sexually abusing her for 9 years continuously and even impregnated her once. The girl then gathered the courage and reported her father. In another recent incident, the victim after being abused severely by her father reported it directly to her mother. Her mother in fear and panic advised her daughter to remain silent and not to talk about the issue.

In 1996, a Bangalore-based NGO, conducted a study of 348 girls. It indicated that about 15% of them were harassed by relatives amongst whom 75% of the abusers were adult family members.

JUSTIFICATION AND NEED FOR CRIMINALIZING JUVENILE INCEST

The incestuous forms of relationship and consanguinity is prohibited under the personal laws, but Juvenile incest unlike other forms of incest prove to be the worst scenario. Such intra-familial sexual abuse not only harms immediate mindset of the children, but also affects them in the long run. Moreover, when a child is abused by adults who are supposed to protect him/her from dangers, their ability to trust and rely on adults is shattered. This in turn is an act of betrayal to the innocent souls. They get confused, a lot of hesitations prevails their minds. Should I raise my voice? Should I run away? Should I cry? Will it help?

Different laws already exist which criminalise sexual relations with a minor. The question which then comes to mind is whether juvenile incest should be made a separate offence, or whether it should be treated as an intensified form of statutory rape of a minor?

Having sexual relations with a related minor is more harmful and wrongful than having sexual relations with a non-related minor. The ‘harm principle’ under criminal law clearly states that when an action undertaken causes harm to another person, then it results in a wrong which should be corrected through a remedy. This is indeed a shameful act and a definite legislation is necessary. Incest is prohibited under personal Law but there are no punishment against it. Often, in some cases incest is punished under Section 376 IPC. The Juvenile Justice Act, 2015 and the POCSO Act also has provisions to deal with child abuses. But why not a stringent law for incest?

Elders within the family have a duty to take care of the children. Violation of this duty by cossetting in dreadful acts like juvenile incest should not go unpunished. Incest is rape by extortion. The child’s very childhood becomes a weapon used to control her. Therefore, incest with a juvenile should be punished more severely than rape of an unrelated minor since the degree of harm and wrongfulness in the former is higher.

CONCLUSION

In UK, the punishment for incest is 12 years, the laws were made in 1980. The US has different term periods of imprisonment in different states with a maximum of up to 20 years. If these advanced countries can criminalise incest, why not India?

Incest is not also good if seen from a medical perspective. Making incest a lawful act doesn’t really make that country a liberal one. Even if not the other forms, Juvenile incest must be criminalised primarily. The existing laws in India discussed above is already problematic when applied to adult women and become even more difficult when applied to children.

Martin Luther King has rightly said, ‘Law cannot change hearts, but can restrain the heartless.’

From my point of view, there is an immediate need to criminalize incest in India. In view of increasing incidents of incestuous abuse, the legislature needs to revisit the bills so as to frame a law against incest once and for all. It is high time India recognises incest as a crime.

REFERENCES

1. https://family.jrank.org/pages/847/Incest-Effects-on-Victims.html#:~:text=Feelings%20of%20isolation%2C%20shame%2C%20and,%2C%20depression%2C%20and%20eating%20disorders.

2. http://docs.manupatra.in/newsline/articles/Upload/D29F5DD4-E852-4330-8E2A-949DC986BC17.pdf

3. https://www.scoopwhoop.com/incest-is-a-reality-we-need-to-address-in-our-homes/

4. https://en.wikipedia.org/wiki/Legality_of_incest#India

5. https://www.jstor.org/stable/3381508?seq=1

6. https://www.livemint.com/Opinion/Cn69qE9pQClmtQzzvw1oVP/All-personal-laws-in-India-are-discriminatory.html

7. The Incest Offences Bill, 2009 (http://164.100.47.4/billstexts/rsbilltexts/AsIntroduced/incest%20X%20of%2009.pdf)

8. The Incest and Sexual Abuse in Family (Offences) Bill, 2010 (http://164.100.47.4/billstexts/rsbilltexts/AsIntroduced/incest.pdf)

9. https://en.wikipedia.org/wiki/Schools_of_Islamic_theology

10. https://www.newindianexpress.com/cities/chennai/2020/feb/07/horror-stories-2-held-for-abusing-their-daughters-2100018.html

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The blog is authored by Shinjinee Namhata