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The Intricate Viewpoint of Incest Under the Indian Laws

11 min read

By K. Manoggnya Reddy

Published On: October 11, 2021 at 14:15 IST

Introduction

In India, there are a wide variety of superstitions and rituals that are commonly carried out by people. Many of these beliefs have fatal consequences. Incest is a term used to describe a sexual activity that occurs between people who are related to one another. In Simple words, Incest is a type of sexual activity that occurs between people who are in consanguinity or certain cases in a relationship with one another through adoption, kinship, or clan.

From a legal perspective, it is defined as a crime that can be committed between a man and a woman if they are related so closely linked by affinity and also blood through marriage or sexual relations, that it is prohibited by law.

The concept of the grey area in law refers to the area of law which has its ambiguous terms maintained. There is no penal provision under the Indian Penal Code in India that explicitly states that incest is an offense. But, Personal Law does prohibit a person from having an incestuous relationship. Also, the Marriage and Inheritance law prohibits a person from having an incestuous relationship and also provided regarding the rights of a child born out of Incest.

Concept of Incest

Incest comes from the Latin term incestuous, which means “unchast or impure”. The general meaning of the word incest also refers to the practice that is not per nature or natural.

Incest is considered legal in some countries and some partially legal with a few exceptions. However, in other countries, it is considered a criminal act. Laws and punishments regarding incest very geographically.

Incest is illegal in most countries. In some countries, such as Brunei, Iran, Nigeria, Somalia, UAE, and Sudan, it is punishable by death. Some of the major countries where incest is still not criminalized are India, Argentina, Brazil, and Japan.

Incest and Consanguinity are very common in India. Especially common in the South Indian Hindu communities and Muslim communities too. According to statistics, In-relation marriage is very common among the south Indian Hindus even among Brahmins.

Incestuous relationships can be split into various categories, such as those between childhood siblings and between consenting adults.

Childhood sibling-sibling incest is a common form of incest that occurs without the consent of the child. It takes the form of child-on-child sexual abuse that usually goes unnoticed, it occurs when there is no mutual consent of both parties or when there is extreme oppression.

Incestuous relationships between adults are not usually reported. In most cases, these relationships are considered just attractions.

And intimate relationships between a child and an adult family member are considered child sexual abuse. This type of abuse is known as child incestuous abuse. This type of incestuous relationship is the most reported type of incest and is in the dire need of criminal redressal since such abuse against children has no rational grounds or justification.

International Presence

In ancient times, it was common for royal families of Egypt, Hawaii, Peru, Europe to adopt incest which in turn even led to having inherited traits that caused severe genetic defects.

If marriage between first cousins is regarded as incest, then it can be said to have been common for European aristocrats to have had this practice until the 19th century. According to English law, it was not criminalized until 1908.

Incest is considered a taboo in most societies both primitive and the present. It usually occurs under special circumstances such as when treated as a sacred ritual act according to certain cultures and in ancient times to display tyranny by taking a forbidden relative as a sex slave. Incest usually occurs when a child is exploited by an older relative. Father-daughter incest is the most prevalent type of incest in the USA.

Other forms of incest may occur covertly. In most cases, incest occurs when a child is sexually assaulted by an older relative. In Peru, about 60% of adolescent pregnancies are caused by incest or rape.

Is Incest a crime in India?

NO.

An act can only become a crime once it has been supported by specific legislation. So if an act is committed that is wrong on the grounds of morality and virtue, it cannot be regarded as illegal or a crime under the law. For asserting an act as a crime, it has to have certain rules and laws. Even if it is wrong, it cannot be declared illegal.

Incest is not a crime that can be punished under Indian law. Also, if an individual is involved in incest, they can not be punished for other crimes such as rape or adultery. In India, incest is not defined in the penal provisions. If an individual is involved in incest, they can not be punished for incest unless they are also guilty under any other legal ground such as sodomy, adultery, or rape.

When a person enters into an incestuous relationship willingly, it is not considered an offense under Indian law. Thus, Incest is not an offense in India’s penal code. Instead, it is condemned and discussed in various personal laws.

Laws Regarding Incest in India

  • Under the Hindu Personal Law

In Hindu marriage is prohibited if the couple has a prohibited degree of relationship or Sapindus. The general meaning of Sapinda is “connected by the particulars of a body”. If a marriage takes place between a man and a woman who are Sapinda then among the Hindus such marriage is void.

The Hindu Marriage Act 1955 declares such marriage as void-ab-initio. Section 5 of the Act has provided certain conditions for the validity of a marriage. According to Section 5 (iv) of the Act states that a man and a woman cannot marry if they are under the prohibited degree of relationship that is, respectively:

  1. Linear descendants (mother and son).
  2. Stepfather-Stepdaughter and Mother-in-law/Son-in-law.
  3. Siblings.
  4. Uncle-Niece or Aunt-Nephew.

Section 5(v) especially states that a marriage between a Hindu man and woman can only be held valid or be solemnized only if they are not in a prohibited degree of relationship or are not considered as Sapindas. Section 3(f) of the Act especially defines the relation of Sapindas, which can be summarized as ‘when there is a common ancestor of two persons’. Therefore, the majority of incest marriage is considered prohibited according to Hindu personal law.

In the case of Sanjiv Kumar Mahato Vs Rekha Mahato[i],

The petitioner filed a petition for divorce on the grounds that the marital relation was under the prohibited degree of relation under the Hindu Marriage Act.

In this case the High court of Jharkhand concluded after examination that the proof submitted was not sufficient for them to annul the marriage but instead stated that the Section 5 of the Act cannot have an overriding effect on any kind of long practiced customary practice.  

  • Muslim Personal Law:

Under the Muslim Personal Law, Muslim people who are under the prohibited degree of relation or are blood related are prohibited to marry. Consanguinity prohibits a person from marrying a woman with blood relation because of the respect that blood relations should be given. A man is prohibited to marry his

  1. His mother/grandmother,
  2. His daughter/granddaughter,
  3. His Niece,
  4. His Aunt.

This clarifies that the incest in regard to the above said relatives is absolutely prohibited and shunned in Muslim marriages. In Muslim law, a legitimate son is the child who is an offspring of a man and his wife and not related in any such above relations and any other child is considered and labeled as ‘Zina’. But First cousin marriages are indeed not considered as incest among the Indian Muslims.

  • Special Marriage Act, 1954:

Enacted in 1954, Special Marriage Act is the legislation that governs marriages that could not be solemnized according to religious customs, with main concentration on inter-faith or inter-caste marriages.

Like the other laws related to marriage, the special marriage act prohibits the union under the guise of marriage between blood relations.

Section 4 of the SMA clearly states that the couples should not be in a prohibited relationship for a marriage to be a valid one.

The concept of prohibited relationships generally pertains to incest, marriage between cousins, and certain other relations by marriage.

The Act expressly states that marriage between a couple of persons who are married shall be null and void.

Inheritance and Incest

  • Hindus  

According to the Hindu Personal Law incest is considered null and void, an child born out of incest is deemed as an illegitimate child. Such a child does not have any of the rights against their father’s property.

Under Section 125 of Code of Criminal Procedure, a father is liable to keep and raise, i.e. be responsible for his illegitimate child’s maintenance. According to the law, if the illegitimate children are considered to be related to their mother and one another, they can inherit their mother’s or their illegitimate siblings’ property.

But there are no specific provisions regarding the inheritance rights of children born out of incest.

In the case of Jinia Keotin and Ors. Vs Kumar Sitaram Manjhi and Ors[ii]:

The court considered the meaning of the word “property” in the Amendment act. It was argued that the word includes both the ”ancestral” and the ”self-acquired” properties of the parents. The Supreme Court held that the word “property” is only restricted to the self-acquired property of a parent and not the ancestral property of the parent.

  • Muslims

Under Muslim personal Law also a child born out of incest is considered illegitimate. And such a child has no rights over his or her father’s property.

The inheritance rights of the mother and her illegitimate children are generally recognized under the Hanafi law and are given mutual rights of inheritance.

The Inheritance rights are granted to children of a mother. This means that a child has rights to both the property of their mother and the property that she is related to in any way.

If an illegitimate child is left his family of a mother – she shall get 1/6th and the daughter 1/2th and revert the remaining where the father would be excluded.

Are marriages between Cousins in South India considered incest?

In southern India, some communities practice consanguineous marriages. These are followed in a traditional way and never take place between members of one Gotra.

In India, a brother can only marry his first cousin but not his sister. Similarly, an uncle-niece marriage is practiced in southern India.

In this case, the daughter-in-law refers to her mother-in-law as Mamiyar – the wife of my mother’s brother, while among Telugu-speaking people the first cousin marriage has a certain distinction.

Basically, among the Telugus, a bifurcation is considered as a parallel cousin and a cross-cousin. Where cross-cousin marriages are considered valid. So in southern India, few marriages happen out of incest but this is not illegal as it is guided by their custom.

Abuse in the form of Incest

Currently, the most common type of incestuous abuse is father-daughter incest, usually which occurs in the privacy of a home. The one who has to protect his daughter from such dangers and crimes ends up abusing them himself. In these scenarios since it is only between the proprietor (father) and the Victim (Child) so there is no chance of someone can find out about this and with whom she can share the circumstances.

But, for this kind of abuse, the victims include both girls and boys. These types of cases are usually untraceable since the parents are believed to be in a fiduciary relationship with their child and are the protector. The outside world may not know about the child in danger. In most cases, the victim doesn’t speak up as the abuser has authority over the child.

In the case of Hari Singh Rawat Vs State[iii]:

The facts of the case which was ruled by the Delhi High Court were that the victim was under abuse of incestuous rape for 8 years by her step-father. She even has two children out of abuse. She was also not aware of the fact that her stepfather was not her biological father. The Accused was found guilty of rape and continuous rape on the same woman under the Sections 376(2)(f) and 376(2)(n) of Indian Penal Code.

Conclusion

Incest can be found in the dawn of culture. Incest is a form of cruelty against women and girls that is severe enough to have been banned in society. Most countries have defined the status of consensual incest from a legal perspective. Although there is no common legal status in India, incest is still considered a violation of personal laws. The laws in the country have various regulations and rules for incest.

The legal status of consensual incest is not recognized in India because of the country’s diverse social cultures. This means that imposing a common legal status is not an acceptable practice since it may be violative of the personal laws.

Hilberman, a psychiatrist, has classified rape as the ultimate violation of one’s self. In 1750 BC, the Code of Hammurabi prohibited it. Most of the time, we do not talk about the sexual assault of children that occurs in the name of incest. And, it is still very common in society.

RAHI is a Delhi-based organization that works on the issue of child sexual abuse. It was established in 2015 and is focused on providing support and healing to victims. Along with Other forms of rape, Incestuous rape cases have also been reported in Delhi since 2014, the 10-month research statistics stated. According to the data, out of the 215 cases, 69 involved the father, the other 27 were committed by the brother.

The child has to live with the traumatizing experience of their life and can’t wait to get rid of it. The experiences as a child have during their childhood of learning and so are priceless and the most memorable throughout their life. And the parents undoubtedly and naturally have a big hand in shaping their children’s life. Unfortunately, there are some things that parents or close relatives can do to a child that is not ideal. Some of these are things that can ruin a child’s life.

ABOUT THE AUTHOR:

K. Manoggnya Reddy is a student of BBA.LLB at ICFAI Law School. She is the kind of person who is hardworking not to achieve dreams but to collide with the reality. She is a typical student who likes to keep being positive most of the time. Achieving good results is her motivational drive. She is excited to improve and correct her mistakes. She took up law studies to achieve a stable career and now thriving to achieve the respect that she deserves from the society and to give the service the society deserves in return.

Edited by: Aashima Kakkar, Associate Editor, Law Insider

References:


[i]Sanjiv Kumar Mahato Vs Rekha Mahato, MANU/JH/0228/2018

[ii]Jinia Keotin and Ors. Vs Kumar Sitaram Manjhi and Ors, Appeal (civil) 7247 of 1995

[iii]Hari Singh Rawat Vs State, CRLA. 248/2017 & Crl. M. (Bail) 7/201