india’s legal gap
Legal Loophole in India’s Penal Code Leaves Marital Rape and Necrophilia Unaddressed
By Ximena Rodríguez-López
New Delhi, India – India’s legal system lacks specific provisions to criminalize marital rape and necrophilia, significant gaps that have raised concerns among legal experts and human rights advocates. Despite stringent laws against sexual offenses, the Indian Penal Code (IPC) does not explicitly recognize sexual acts committed on a deceased individual or non-consensual intercourse within marriage as punishable offenses.
Section 297 of the IPC penalizes acts that desecrate burial sites or insult human corpses, but it does not cover all instances of necrophilia, particularly those occurring outside cemeteries or cremation grounds. Furthermore, Sections 375 and 377, which define rape and unnatural offenses, only apply to acts committed against living individuals. Notably, Section 375 also includes an exception stating that intercourse by a husband with his wife, provided she is above the age of 15, does not constitute rape, effectively exempting marital rape from legal scrutiny. Additionally, under the current legal framework, a man can legally engage in sexual acts with his deceased wife’s corpse without facing any legal consequences, as necrophilia is not explicitly criminalized in India.
This legal gap was highlighted in a 2023 ruling by the Karnataka High Court, where an accused was acquitted of rape charges after engaging in sexual intercourse with a woman’s corpse following her murder. Similarly, debates surrounding marital rape have intensified, with numerous petitions urging the courts to recognize it as a crime. However, legislative action remains stalled due to socio-political resistance.
Calls for amendments to the IPC have intensified, with legal scholars urging lawmakers to criminalize both necrophilia and marital rape explicitly. Many argue that India should follow the example of countries like the United Kingdom and Canada, where such offenses are clearly defined under the law. Until such legislative changes occur, individuals committing these acts may continue to exploit these loopholes to evade justice.
As the debate over these legal shortcomings continues, human rights organizations stress the importance of recognizing dignity even in death and ensuring that all acts of sexual violence, regardless of the victim’s state or relationship to the perpetrator, are met with strict legal consequences.
