CONCEPT 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
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.
LAWS REGARDING INCEST IN INDIA
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.
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
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.
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.
7. The Incest Offences Bill, 2009 (http://126.96.36.199/billstexts/rsbilltexts/AsIntroduced/incest%20X%20of%2009.pdf)
8. The Incest and Sexual Abuse in Family (Offences) Bill, 2010 (http://188.8.131.52/billstexts/rsbilltexts/AsIntroduced/incest.pdf)