INCEST

INCEST - AN UNCHARTERED TERRITORY

Today, I want talk about "Incest" which is an unchartered territory and has been completely ignored by our society and government as well. Surprisingly, the term or we can say the offence is not even covered under the Indian Penal Code, 1860 or under any other law. So, technically it's not even an offence in India. 

Incest means "sexual relations between family members or close relatives, including children related by adoption" (Black's Law Dictionary). Also defined as " sexual intercourse between persons so closely related that they are forbidden by law to marry" (On-line Webster Dictionary). 

Incest In India

A relationship that is forbidden unanimously by most societies in the world is the incestuous form of relationship. This type of relationship is considered taboo in almost every part of the world. 

There is nothing black and white in taboo so is the law around this tabooed topic. Incest is the sexual relationship between two people of the prohibited degree of kinship by means of consanguinity, affinity or any other means.

Incest in ancient times developed as a medium to protect the royal lineage of the persons from the same kinship, to avoid the dissemination of power amongst the non-royal clans. Soon it evolved to be a prohibited form of relationship as it led to multifaceted genetic disabilities amongst the offsprings. 

Sexuality in ancient times

Sexuality in ancient India is often characterized as multi-faceted and sometimes contradictory. The Indian subcontinent is one of the oldest places where sexuality has been discussed extensively by means of books and other sources. Nudity was accepted in many parts of Southern-India and to some extent in Northern-India as well, as depicted in Ajanta caves and some ancient sculptures.History of the Indian subcontinent is very complex to understand because of its diversity and complex civilization structures that demand a great deed of attention to its evolutionary aspect. People from such important geography have given a great deal of importance to sexuality, which is intrinsically connected to religion.

 A lot of ancient text, arts, games and sculptures depict the importance that was associated with sexuality in ancient India. Kamasutra, an ancient text that delves into lovemaking, sexuality and romantic relationships is one of the oldest sex manuals that has ever been discovered, it explains in detail the positions to have sex. Ananga-Ranga is another significant sex manual that is male centred and talks about the pleasure zones and arousal points in detail.

This is not just it, the oldest text that discussed sexuality in detail was from India. The famous and ancient texts of Hinduism, Jainism and Buddhism were the earliest sources of sexuality in India, discussing in detail about the moral aspects of sexuality, family, relationship and fertility prayers. These texts also give us a hint of ancient Hindus’ involvement in polygamous and polyandrous relationship. The intention being to protect the royal lineage and the rest of the people were restricted to a monogamous relationship.

In most of the tropical regions people did not cover their upper body due to climatic reasons. The historical shreds of evidence also represent that the wealthier section of the society wore gold and other ornaments to cover their upper body and the rest of them survived with uncovered torso covering only the lower body. 

The ancient Indian art produced during the 10th and 12th century freely expressed the idea of sexuality and lovemaking. Temple sculptures capturing all sex positions mentioned in Kamasutra were part of ancient India’s sexuality, experts also say that these sculptures were part of sexual education. Education here is used very loosely as our modern understanding of education is totally different. Sheikh Nafzaw’s Perfumed Garden is a classical sex manual of the Islamic religion. In the later part of the 16th century, various poets described the process of lovemaking and sex poetically, appealing to a great deal of audience.

Such liberal ideology of the Indians started to evaporate at the advent of the colonial invasion of the sub-continent, where the western ideology of stigmatizing public depiction of sexuality started to spread. During the revolt of 1857, when the victorian rules were infiltrated into the political domain of India, Indian liberalisation towards sexuality was frowned upon, ridiculed and considered to be inferior. Paradoxically this new outlook led to the promotion of education of women and puritanical attitude towards sexuality even within the marriage.

Incest as a crime in India

An act becomes a crime when it is expressly declared to be a crime under the legislation, not just because of an act which is immoral or socially tabooed. Incest is not a crime under any legislation as of now. There is no specific legislation or IPC provisions that expressly declares incestuous relationship to be a criminal activity but they might attract provisions of other sexual offences like sodomy, rape etc. Therefore a person cannot be held criminally liable or punishable for involving in an incestuous relationship, despite it is socially unacceptable and frowned upon.

Hence, it is not an offence if two consenting adults get involved in an incestuous relationship. They do not offend any legal provision by doing so, but might offend the sentiments of the society at large. Also, some personal laws condemn the act of incest to a certain degree.

Laws regarding incest in India

An incident in Mumbai where a 60-year old father raped both his daughters for more than nine years, shook the conscience of the whole country. The perpetrator was charged only for rape under section 376 of the IPC. A man who forced himself on his daughter for more than nine years can’t be held for incest, as Indian Penal Code does not recognize it as an offence.

 (See:https://bit.ly/2Wu1a9N)

The apathy of law in serious regimes like incest would infiltrate a silent message of acceptance of such act. Social workers argue that this apathy of law is a portrayal of society’s turndown and refusal to concede that incest exists. 

(See:https://indialawyers.wordpress.com/category/incest/)

The situation is not gaugeable, because most of the time the child’s interests are sacrificed to protect family values. Many cases go unreported. However, to an extent, the statistics are fathomable with the 2007 study on child sexual abuse conducted by the Ministry of Women and Child Development (MoWCD). The study reveals abhorrent figures of child sexual abuse, over 53 per-cent of the female children at least once become victims of child sexual abuse. Adding to the woes 50 per-cent of these victims are victimized by people whom the child could recognise. This numbers also include incest. (See:https://bit.ly/2Wu1a9N)

• There is no legislation or provision of any statute that penalizes or recognize incest as a crime.
• The crime of “Rape” under IPC is too specific and it does not cover other sexual abuse other than intercourse. It is not a gender-neutral provision.
• IPC does not recognize incest as a crime. Conviction shall be given only for sodomy and rape.
• IPC also does not recognize child sexual abuse in which most of the time the perpetrator is from the child’s acquaintance whom the child trusts. 
• Most of the sexual offences including incest against women are covered under section 354 of the IPC “outraging the modesty of women”.
• Section 354 of the IPC is a bailable offence making it less stringent and less serious an offence. 
• The latest Juvenile Justice act also fails to recognize sexual abuse due to incest.
• Section 5 of the Immoral Traffic Prevention Act 1956, punishes indulgence into child prostitution, but does not deal with sexual abuse. 

Some Statistics about Incest

The RAHI, (Recovering and Healing from Incest) is a Delhi based NGO in one of its report titled “Voices from the Silent Zone” has revealed that more than 3/4th of the women in the middle and upper-class household in India are abused by incestuous activities. The perpetrators at most of the time are the uncle, brother, domestic help or any other person with whom the women develop a fiduciary relationship. The founder of the firm also comments that “lacuna in the law regarding these tabooed abuses is a reflection of the society which is immature to own up to it, and this also sends a message that it is not serious an offence to commit.

In a study conducted by the Tata Institute of Social Science, it was revealed that one out of ten boys and one out of three girls are subject to child sexual abuse. More than 50 per-cent of this abuse occurs at home. This study was conducted in 1985, It is a nightmare to imagine the numbers that will come up had the study been done today. 

A Bangalore based NGO, Samvada, had conducted research on child sexual abuse amongst a pool of 348 girls. More than 15 per-cent of the girls were used for masturbation purposes when they were under 10years of age, of which 75 per-cent of the perpetrators were their male family members. 

Vidya Reddy founder of Tulir-CPHCSA (Centre for Prevention and Healing of Child Sexual Abuse) a Chennai based NGO says abusers are not shadowy and rugged-looking people who are pedophilic in nature but usually it is a person whom the child trusts and that person without any misgiving or reticence indulge in sexual activity with the child with whom the child shares a fiduciary relationship.

In 2009 - The Incest Offences Bill, 2009 was introduced before the Rajya Sabha. The main purpose was to provide punishment for the offences relating to incest and for matters connected there with or incidental there to. 

Again, in 2012 - The Incest Offences Bill, 2012 was introduced before the Lok Sabha. 

But now even after introduction of the said Bill for two times we are still on the same page. No Act has been passed regarding the same till date.

As per the National Crime Records Bureau in 2014;

Total no of cases reported for "Incestuous Rape" from all over India were 713 cases: Leaded by our Delhi with 140 cases and Maharashtra with 94 cases. 

Now it's important to point out here the ages of children who faced this because that will only weigh the seriousness of this henious offence which is easily ignored by us and our law makers. 

Below 6 years - 23 cases
6 to 12 years - 84 cases
12 to 16 years - 211 cases
16 to 18 years - 115 cases
18 to 30 years - 203 cases
30 to 45 years - 64 cases

These are only reported one, now think about the unreported ones. A Society were we are living belief in hiding the dirty/criminal acts of our family members and non of us can deny this fact. 

See the age of these children, every single day one or other child is being raped by her/his father, brother, uncle or neighbours. Known ones are more harmful as they are always around you. 

Few days back I was reading judgement passed in 2019 by the Hon'ble Rajasthan High Court: it was held that the prosecution has failed to give clarity about the real age of the victim and therefore, we consider/assumed her to be 18 years old and hence, as per the statement given by the prosecutrix, there was consent of her and hence, the accused has been discharged from the charges framed against him. This shows that even our judicial system is taking this offence so lightly and casually. Think what if she was not 18 years old at the time commencement of the offence?? What if she has be threatened by any mean to give consent before the Hon'ble Court?? What if she has been Raped by her own counsin brother?? What if one more criminal has been acquitted and set free to do more crimes??

Void marriage in Hindu laws

The marriage laws in India are governed by the personnel laws of their respective religion. The Hindu Marriage Act declares certain type of marriages void-ab-initio. These void marriages are not considered valid in the eyes of the law. Section 5 of the Hindu Marriage Act specifies 6 conditions for a valid marriage violation of which may lead to the nullity of the marriage so constituted. 

Hindu Marriage Act declares incestuous marital relationship to be void under sec. 5(iv) & sec. 5(v). This shall now be discussed in detail.

Degrees of prohibited relationship

Under section 5(iv) of the Hindu Marriage Act, both the parties shall not be under the prohibitory form of relationship. If such parties get married it will not be a valid form of marriage under the Act. 

The parties are in a prohibited degree of relationship if they are;

• Lineal ascendants or descendants to each other.                                      

Ex: If A and B are mother and son respectively.

If A and B are grandfather and granddaughter respectively.

• Spouse of Lineal ascendants or descendants / Uterine blood relationship.

Ex: If A and B are mother-in-law and son-in-law respectively.

If A and B are step-father and step-daughter respectively.

• Siblings and spouses of siblings.

Ex: If A and B are brother and sister respectively.

If A and B are brother-in-law and sister-in-law respectively

• Siblings of lineal ascendants or descendants.

Ex: If A and B are brother of grandfather and granddaughter respectively.

• Uncle & niece; Aunt & nephew.

What is the legal status of cross-cousin marriage in South India?

Many communities from south India practice consanguineous marriages. These communities, however, cannot marry within the same Gothra but they marry their 1st cousins. Another kind of practice that is very much prevalent is that marriage between uncle and niece. This is not in violation of the Hindu law because it is a customary practice amongst the community.

Sapinda Relationship

Under section 5(v) of the Hindu Marriage Act, both the parties shall not be under the sapinda form of relationship. If such parties get married it will not be a valid form of marriage under the Act.

Sapinda form of relationship is with reference to five generations from the lineal ascent of the paternal side including the fifth generation and with reference to three-generation from the lineal ascent of the maternal side including the third generation. Usually, the line being traced upwards has to consider the person involved as the first generation. 

The spouses are considered to be in a sapinda form of relationship if the spouses are lineal ascends of each other if they fall under the “sapinda limits” with reference to both the spouse or if the spouses have a common lineal ascendant who falls under the “sapinda limits” with reference to both the spouse.

Example: If the bridegroom is the progeny of any lineal descendants of five generations from the father’s side, including the fifth generation, or three generations from the mother’s side including the third generation and vice-versa. In this case, both the parties to the marriage are considered as “sapindas” and their marriage is prohibited under the Hindu Marriage Act 1955. 

Muslim law marriage

Under the Muslim jurisprudence, there are two different denominations “Shiya” and “Sunni”. These denominations were caused due to the difference in the political ideology of the Islams. There are three types of Muslim marriage 1)Shahih 2)Fasid 3)Batil. Shahih is a valid form of marriage, Fasid is an irregular form of marriage and Batil is void marriage. Shiya law does not recognise any difference between void and irregular marriage, but Sunni school differentiates both of them. However, their jurisprudence varies on all major aspects of Muslim personal law, such as marriage, inheritance, adoption etc. For the scope of this article only the marriage laws of both denominations are included.

Shiya school on incest 

Shiya law prohibits/provides absolute incapacity on three grounds:

• Consanguinity
• Affinity
• Fosterage

Consanguinity

This type of prohibition on the parties is based on the blood relationship of the parties. If the parties to the marriage descend from the same ancestry or kinship it is a consanguineous relationship.

If it is a man then he is prohibited from marrying:

1. Mother or grandmother howsoever high.
2. Daughter or granddaughter howsoever low.
3. Uterine sister or consanguine sister.
4. Niece and grandniece howsoever low.
5. Aunt, paternal or maternal and great aunt howsoever high.

If it is a woman then he is prohibited from marrying:

1. Father or grandfather howsoever high.
2. Son or grandson howsoever low.
3. Uterine brother or consanguine brother.
4. Nephew and grandnephew howsoever low.
5. Uncle, paternal or maternal and great uncle howsoever high.

Affinity

It is a legal disability to marry a person which arises due to the occurrence of marriage. This holds good even the relationship of affinity arises out of an invalid marriage. Also, this doctrine would hold good if the man had an adulterous relationship with a woman, then the man cannot marry those relations with whom a relationship by affinity would develop had he married her.

If it is a man then he is prohibited from marrying:

1. Wife’s mother or wife’s grandmother howsoever high.
2. Wife’s daughter or wife’ granddaughter howsoever low.
3. Wife of father or grandfather howsoever high.
4. Wife of son and wife of grandson howsoever low. 

If it is a woman then he is prohibited from marrying:

1. Husband’s father or husband’s grr howsoever and father high.
2. Wife’s daughter or wife’ granddaughter howsoever low.
3. Wife of father or grandfather howsoever high.
4. Wife of son and wife of grandson howsoever low. 

Fosterage

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 or foster-siblings. 

Sunni school on incest 

Sunni school of law has exceptions to the prohibition on fosterage. A Sunni man can contract a valid form of marriage with his:

1. Sibling’s foster-mother.
2. Foster sister’s mother.
3. Foster daughter.
4. Foster sister.

The Shiya school does not recognize these exceptions, all marriages under the prohibited degree of relationship are absolutely void without any exception.

Children born out of an incestuous relationship

Muslim marriage

Under Muslim law, a child born out of an incestuous relationship is considered to be illegitimate. This illegitimacy can arise out of any invalid form of marriage, not just incestuous relationship.

All illegitimate children born out of invalid marriage under Muslim law is entitled to maintenance and inheritance, this position has been clearly specified in various sources of Muslim law.

The settled position of law regarding maintenance is that:

Hedaya: The child has to be provided with all the necessary goods that support his life, such as food, lodging and raiment etc.

Fatwa-I-alamgir: It has been clearly stated that the illegitimate child has to be supplied with food, raiment and lodging. Though the authoritative texts explain the concept of inheritance as all the goods that support life, in common parlance it is been confined only to food. 

Often these rights of an illegitimate child are refused by the common law principle of “Nullis Filuis”.

CRPC:  Under Hedaya which cites the Quran, establishes that the father has to maintain his illegitimate child, but the Muslim law in this regard is clear that father has no such obligations. But Hanafi law demands a mother to maintain the illegitimate child. Section 125 of CRPC clarifies the clutter of such contradicting laws and settles the law regarding the maintenance of illegitimate children. It puts an obligation on the father to maintain his illegitimate child.

Nafees Ara v Asif Sadat Ali Khan: In this case under section 488 of CRPC the Supreme court observed that the maintenance of an illegitimate child has to be provided if the in-action of the father would lead to vagrancy of the child, provided the father has the means to do so.  

Sec 23 of the Indian Contract Act: 

In the case of Sukha v Ninni the point raised in the court was that, can a contract for maintenance with a Mohammedan father be enforceable.

The contentions were that such a contract is void under sec.23 of the Indian Contract Act on grounds that this will defeat the provisions of the Muslim law.

The court observed that such a contract will not violate Muslim law because the maintenance is under section 488 of CRPC and such a claim is in consonance with the public policy.

The settled position of law regarding inheritance is that:

Shiya law: The Shiya law adheres to the principle of “Fillius Nullius” strictly and does not allow the scope for any kind of maintenance under any Muslim law. In Shiya law the illegitimate child can inherit neither from his mother nor from his father.

Hanafi law: The position of Hanafi law is not so strict in this sense. The illegitimate child has to be left to the care of the mother until the age of 7. After which the child can inherit from his mother’s side, but the Father has no obligation towards the child.

Hindu Marriage

Any marriage in violation of the conditions of the marriage under Hindu law is void, and any child born out of such a relationship is considered to be illegitimate. Only certain rights of such a child is recognised, but after the Marriage laws (amendment) act 1976, which amended the section 16 of the Hindu Marriage Act rendered the status of legitimacy to all children born out of a marriage under Hindu Marriage Act irrespective of the fact that such a child is born out of a null and void marriage.

Also, section 3 of the act provides for the rights of inheritance to a child who is born out of a null and void marriage. This amendment was brought with the intention to remove the stigma that is associated with the illegitimate status granted to such children.

Special Marriage Act and incest

Like all the personal laws and legislations regarding marriage, the Special Marriage act also prohibits marriage between relations who are:

•  relationship by half or uterine blood as well as by full blood
•  illegitimate blood relationship as well as legitimate
•  relationship by adoption as well as by blood 

The act expressly declares that marriage between such relations shall be null and void. Refer schedule I on the act for further clarity and detailed list of the prohibited degree of relationship.

Conclusion

Indian legal framework does not provide for any legislation or a provision that punish or recognize incest as a crime. Other countries like the US, UK, Germany have made strict punishments and laws against incest, India still lacks such laws. In the UK the punishment for incest is 12 years, the laws regarding incest were made in 1980. The US has different term periods of imprisonment in different states with a maximum of up to 20 years in Massachusetts. It is for 5 years in Hawaii.

Some countries have even diluted the laws against incest, they see it as a form of liberalisation. Sexual activity with close relations used to be an offence in many countries, of which many countries now have taken a liberal stance. Incestuous activity which is involved with a minor is still disgusted in many such countries who have taken a liberal stance regarding incest.

The view in India regarding incest is that, incest is never consensual it is often an expression of force and dominance by the individuals. Power acts as a trigger that infiltrates incest within the family. Denial, disbelief is mostly the reaction when it comes to incest as the reputation of the family is considered in a higher pedestal than the interest of the child. It is high time India recognises incest as a crime.