incest in india

A Look Into Incest in India and Its Legal Status

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WHAT IS INCEST?

In simple words, incest means a sexual relationship between two close relatives who are usually within the prohibited degrees of relationship to get married. In some cases, a sexual relationship between two first cousins is also considered incest. 

In some countries like the United States and the United Kingdom, incest is criminalized. Incest might occur with or without consent. When it is without consent or is forced, it is considered incestuous rape. Even though it is not penalized in India, incest is not socially accepted and is viewed as a taboo. Though incest remains taboo, different groups of people interpret different kinds of restrictions. For example, cross-cousin marriages are prohibited in North India, while the same is allowed in South India. 

Forced incest as a crime might occur between father and daughter, between siblings, or between mother and son. A survey of University hospitals in Turkey reveals that father and daughter incestuous abuse is most prevalent. Mother and son incest remains the least prevalent.

IS INCEST LEGAL IF THERE IS CONSENT:

In India, the age of consent is 18, is also called the age of majority. The POCSO Act increased the age of consent to 18. The Indian Penal Code Amendment in the year 2013 also amended the age of consent to 18. Hence, when anything consented to is under the age of consent, it is considered forced, and the same is assumed in most cases of incest. Ultimately, when someone is involved in a sexual relationship under 18, it is considered rape. 

Incest in other countries:

Various countries deal with consensual incest in diverse legal aspects, but however forced incest remains a crime. For instance, 

  • In the United States, incest with consent is legalized only in two states but is illegal in the rest of the states.  
  • In the United Kingdom, it is entirely illegal to have a sexual relationship with biologically close relatives under the Sexual Offences Act, 2003. Under this Act, Section 65 prescribes 2 years of imprisonment for incest between adults with consent. 
  • In some countries like France and Spain, incest is not prohibited and is legal. 

Incest In India:

In India, there are no central or state laws that regulate the incest of adults with consent. However, the country’s personal laws and diverse cultures prohibit incest marriages, and the prohibition varies from culture to culture. 

As per the Hindu Law, people who fall under Sapindas are not supposed to marry as they fall within the prohibited degrees of relationship. Section 3 of the Hindu Marriage Act, 1955 lists the prohibited degrees of relationship to get married.

In Muslim Law, the marriage is prohibited in degrees of consanguinity, fosterage, and affinity, and the marriage is considered void if performed. 

Section 4(c) of the Special Marriage Act, 1954 does not allow the parties to marry if they are within the prohibited degrees of relationship. 

In Dinesh Singh v. State Of Rajasthan Through Pp .: In this case, the Rajasthan High Court in 2019 acquitted the accused, who was held by the trial court for a relationship with a minor who was his father’s brother’s daughter (incest). The High Court acquitted him because she was not a minor and that the relationship was consented. 

MEDICAL IMPLICATIONS OF INCEST:

Incest in science is generally called “inbreeding.” This has quite many adverse effects. Inbreeding or incest may lead to a higher risk of recessive disorders. Another implication is that the mother might have a high chance of abortion. Other results are premature birth, underweight infants, infertility and related genetic disorders. 

INCEST AS A CRIME:

When a person or child is abused sexually by a close relative, it is incestuous abuse or incestuous rape. The Indian Penal Code does not directly mention incest, but any such offence shall attract Section 376 (2) (f). Section 376 prescribes punishment for rape. Section 376 (2) (f) reads as follows:

“being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman;.”

The prescribed punishment is Rigorous imprisonment for a term of not less than ten years. It may also extend to life imprisonment with a fine.

Incestuous abuse:

As mentioned above, father and daughter incest has been most common. Such cases of incest do not come to light as it happens within the four walls of the personal space. Moreover, the one who has to guard his daughter against such crimes and dangers ends up abusing his own daughter. Hence she is left with no one to share about what happened to her. Incestuous victims include both boys and girls.

These cases become untraceable because the parent is believed to be in a fiduciary relationship with his or her child and is the protector. The outside world might not even have a clue about the child in danger. In many instances, the child who is a victim doesn’t speak up as the abuser is in an authoritative position with the child. 

Hari Singh Rawat v. State: This case was decided in the Delhi High Court on February 18th, 2018. In this case, a girl was continuously raped by her stepfather for a period of 8 years, and she reported when she was 30 years old and by the time she became a mother of two children as a result of abuse. The facts reveal that the girl was unaware of the fact that her stepfather was not her biological father. He was held guilty under section 376(2)(f) and section 376(2)(n) of the Indian Penal Code, 1860.  (Section 376(2)(n) prescribes punishment for committing rape on the same women repeatedly.)

In one such case, when a girl who was a victim of forced incest by her father reported to her mother, she asked her daughter to remain silent on the matter. In most cases of rape, the family of the survivor extends their support and stands up against the accused. But in case of incestuous rape, the family members try to suppress the victim as it is a matter of “respect” and “prestige” of the family. 

In circumstances where the child is a victim of forced incest, it is called “Juvenile incest.” The POCSO (Protection Of Children from Sexual Offences) Act, 2012, similar to the provisions of the Indian Penal Code, does not per se mention incest, but Section 5 (n) and Section 9 (n) of the Act deals with such crimes. 

Section 5 of this Act is about “Aggravated penetrative sexual assault.” Section 5 (n) of the Act reads as follows: “whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child;” 

Section 9 of this Act includes provisions on “Aggravated sexual assault”. Section 9 (n) is defined as: “whoever, being a relative of the child through blood or adoption or marriage or guardianship or in foster care, or having a domestic relationship with a parent of the child, or who is living in the same or shared a household with the child, commits sexual assault on such child;”

Goa Children’s Act, 2003:

The Goa Children’s Act was passed by the Legislative Assembly of Goa in the year 2003. The Act begins with the following words: “to protect, promote and preserve the best interests of children in Goa and to create a society that is proud to be child friendly.” This Act includes punishment for incestuous child abuse.

Section 8(2) of the Act prescribes punishment of imprisonment of not less than 10 years which may extend to life imprisonment together with a fine amount of 2,00,000 for incest. This punishment is the same punishment prescribed for “grave” sexual assault on children in the same section of this Act, whereas the punishment for sexual assault is imprisonment of three years and a fine amount of 1,00,000.

Mr. Bhau Valve v. State Through The Public Prosecutor: This case was decided by the Bombay High Court in 2010. According to the facts of this case, the victim was a girl of sixteen years at the time of proceedings. She was sexually abused by her father for a period of five years. Later her neighbor noticed that the girl was pregnant and reported it. The accused, who was the girl’s father, was sentenced to life imprisonment and compensation of 1 lakh rupees according to section 8(2) of The Goa Children’s Act, 2003. 

Abortion in case of incestuous rape

Medical Termination of Pregnancy Act deals with abortion-related regulations in India. Recently, Rajya Sabha passed the Medical Termination Pregnancy (Amendment) Bill, 2021, which includes 24 weeks for abortion of victims of incestuous rape. 

BILL INTRODUCED FOR INCEST IN INDIA:

As a step ahead, four bills were introduced in order to make incest a separate crime, and the provisions were also stringent in nature.

  1. The Incest Offences Bill. 2009. 
  2. The Incest and Sexual Abuse in Family (Offences) Bill. 2010. 
  3. The Incest Offences Bill. 2012. 
  4. The Incest Offences and Sexual Abuse of Females in Family (Prevention) Bill. 2020. 

PSYCHOLOGICAL EFFECTS OF INCESTUOUS ABUSE:

When we face a small accident leading to a minor injury, revisiting the place by chance results in panic attacks which spoil our day. Now it becomes hard to think what would be the mental impact on a survivor of incestuous rape. 

Victims of incestuous rape face severe psychological issues because the trust is broken by a person close to them. They face depression, anxiety and their self-esteem becomes very low. The grave trauma also puts them in Post Traumatic Stress Disorder (PTSD). They also face serious trust issues after such a nightmare. Also, the victim loses respect for the respectable position like father or any relative for that matter. In addition to all this, the child or the person in most cases had to tolerate the offence and pain for years until they gathered the courage to speak up against their own relative, parent, or sibling. 

CONCLUSION:

Most countries have defined the legal status of consensual incest. There is no common legal status of incest in India, but as discussed, the personal laws prescribe the rules, regulations, and prohibitions of prohibited degrees of relationship. There is no common legal status of consensual incest because of the diverse social cultures in the country, and imposing a common regulation might violate the personal laws since India is a culture-driven society. 

From the above-discussed points, we can conclude that the Indian Penal Code is not gender-neutral in the matter of rape. As said by E. Sue Blume (Author of the book “Secret Survivors”), “… incest is rape by extortion. Thus the child’s very childhood becomes a weapon used to control her.”

The child has to undergo the impact of the trauma throughout life and live with it. The childhood of a normal child remains the most memorable one and, what a child learns and experiences in his or her childhood is priceless. Especially, parents have a big hand in making the child’s life beautiful, but some cases, unfortunately, show the worst thing that can be done to a child by a parent or a close relative. 

This Article has been written by Amina Imami from The Tamil Nadu Dr. Ambedkar Law University – School Of Excellence in Law. 

Reference

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