The Legality of Incest in India – All You Need to Know

This article on ‘The Legality of Incest in India – All You Need to Know‘ was written by Swaroopa Royadu, an intern at Legal Upanishad.

INTRODUCTION

When the abuser is a family member, father, brother, Aunty, etc where can a victim go for help? Especially when the victim is still a minor! Many cases of incest go unreported, but the suffering of victims lasts for a long term. This article covers laws regulating incest, the Validity of incest marriages, the status of children born from incest marriages, why India should have a special Act to regulate incest acts, and many other issues relating to incest.

MEANING

Incest means sexual exploitation between close-blood relatives or close family members. According to section 2(c) of “The Incest Offences Bill, 2009” the term sexual exploitation includes fondling, sexually explicit remarks, avoidable and unwarranted physical contact, wilfully touching and patting, forcing for the use of pornographic material, and molestation.

According to “The Incest Offences Bill, 2009” the term close family members include members of a victim’s family by birth and include a parent or grandparent of either sex, a child or other lineal descendent, brother or sister that includes half-brother and half-sister.

LAWS REGULATING INCEST IN INDIA

The laws regulating incest in India are:

• The Incest Offences Bill, 2009.
• The incest and the Sexual Abuse in Family (offences) Bill, 2010.
• The incest Offences Bill, 2012.
• Trails for Incest will be carried in accordance with the provisions of “code of Criminal Procedure, 1973”
• The Hindu Marriage Act, of 1955
• The Muslim Marriage Act
• The Special Marriage Act, of 1954
• Protection of Children from Sexual Offences Act, 2012

ARE INCEST MARRIAGES VALID IN INDIA?

Marriages in India are governed by personal laws. However, none of the personal laws accepts incest marriages as valid marriages.

According to the Hindu personal laws [Hindu Marriage Act]:   

• Section 5 (4) of the act prohibits marriages where the partners fall under the degree of prohibited relationship. Prohibited relations include the lineal ascendant of another. For example, a son cannot marry his mother or grandmother, a father-in-law cannot marry his daughter-in-law, or a marriage between uncle and niece, an Aunt and nephew, or siblings children fall under the category of prohibited relationship.
•  Section 5(5) prohibits the marriage of Sapindas. Sapinda relations include common ancestor relatives within 3 generations above the mother’s side of the family and 5 generations above on the father’s side of the family.

However, if customs allow for such marriages, then they are not void marriages.

According to Muslim personal laws:

Muslims do not marry persons within blood relation. Such marriages are considered prohibited degree not allowed to marry. Hence marrying a daughter [even stepdaughter or foster daughter], aunt, nephew, niece, or uncle is prohibited in a Muslim marriage.

According to the Special Marriage Act:

Section 2(b) of the Act defines the prohibited relationship. The list of prohibited relationships is mentioned in Schedule 1(part 1 for men and part 2 for women). Marriage by half or uterine blood as well as full blood, illegitimate blood relationship as well as legitimate, and relationship by adoption as well as by blood are all void marriages.

CHILDREN BORN FROM INCEST RELATIONSHIPS: 

Both under Hindu personal laws as well as Muslim personal laws incest is considered null and void. Children born as a result of incest is considered illegitimate child and such children are not entitled to any rights against their father’s property. However, such children have rights concerning the property of the mother.

CRITICAL ANALYSIS OF INCEST IN INDIA:

The question of concern about incest is especially about a minor child or children in the family. It is essential to understand why incest takes place and what are remedies available to victims.

• Reasons for incest acts:
  • Phycological issues.
  • When a person becomes a victim of Hormonal problems.
  • Dissatisfaction in family life.
  • Restrictions imposed by society not to discuss matters of sexual assault or abuse openly in public
  • To protect themselves from being exposed to society by having extramarital affairs with outsiders [ they feel safe to have such affairs within the family]

• Remedies available:
  • Reporting the sexual abuse or assault to the concerned authority or lodging a complaint: This can be done by the victim themselves on realising the available remedies to them or it can be informed by neighbours, friends, teachers, or other persons who sense happening of such offence.
    • Shaharbanu Vs Sub Inspector of Police: In this case, the father is accused of sexual assault of his daughter along with other co-accused. The applicant is the mother who has applied for Bail U/S 439 of Cr.P.C. The statement of a minor victim before the concerned authority is that she was taken to the Saudi lodge at Kozhikkode and she was sexually assaulted by her own father and other accused. The applicant(mother) knew the acts of the accused and she aided and instigated the accused to do the offence. It was the neighbours of victims who informed child line authorities about the sexual abuse and then the same was referred to the police. In this case, the neighbour has taken the initiative to inform about child abuse[incest].
  • Conducting awareness programs, and camps to educate the people about the abuse of children sexually. A large population in India [especially poor and illiterate people] are not aware of the remedies available to them for incest offences and some don’t know sexual abuse is a crime. Conducting awareness programs in schools/ colleges/ villages can encourage the victims to register their complaints.
    • Madhaeshwaran Vs Inspector of Police [Madras High Court]: Victim was 10 years old and she was been sexually abused by her marital uncle after the death of her father. The victim’s mother eloped with someone and took shelter at her mother’s house. The victim was left with the accused alone.
    • College students have visited victim’s schools for conducting child awareness and child abuse camps. It was during this camp the victim informed the about the sexual abuse conducted by her uncle to the volunteers and the same was reported to the child helpline office-bearers. After counselling the victim by teachers and necessary authorities the complaint was lodged at the police station and after the police investigation, the victim was rescued and sent to a child welfare home. The Accused was sentenced U/S 5(1)(m) of the Prevention of Children from Sexual Offence Act, 2012 and he was sentenced to rigorous imprisonment of 12 years which was reduced to 10 years in appeal.

CONCLUSION:

There is no specific law in India concerning incest. Offences of incest are treated as rape and are punished accordingly. In the case of minors, the incest act is treated by the provisions of the Protection of Children from Sexual Offences Act,2012. Countries like the UK, Germany, Italy, and Ireland have specific incest laws. Many children’s rights activists are demanding a specific law for incest in India too. With the growing number of incest cases in India, it has become necessary to have specific laws for incest issues.

REFERENCE:

1. Akshita Tiwari ( 21/July/2020) “Need to criminalize juvenile incest in India” available at –https://criminallawstudiesnluj.wordpress.com/2020/07/21/the-need-to-criminalize-juvenile-incest-in-india/ last visited 14/12/2022
2. “The incest Offence Bill, 2009” available at – http://164.100.47.4/billstexts/rsbilltexts/AsIntroduced/incest%20X%20of%2009.pdf – last accessed 14/12/2022
3. (10/May/2017) “Legal status of incest in India” available at: https://blog.ipleaders.in/incest-legality/?noamp=mobile#comments last visited 14/12/2022
4. “Incest-related cases and queries” available at https://www.youtube.com/watch?v=6D8GF2Jq65g – last accessed 15/12/2022
5. “Sharabanu vs sub-inspector of Police” – available at https://indiankanoon.org/doc/136563577/ last accessed 15/12/2022
6. “Sharabanu vs sub-inspector of police, Kerala High Court” available at https://www.casemine.com/judgement/in/5b7455959eff430da3fe3e98  last accessed 15/12/2022
7. “Madhaeshwaran Vs Inspector of police” available at https://www.casemine.com/judgement/in/634973591160360abd04811d – last accessed 15/12/2022