Incest PDF
Incest PDF
Incest PDF
Author(s): K. I. Vibhute
Source: Journal of the Indian Law Institute, Vol. 44, No. 1 (January-March 2002), pp. 85-95
Published by: Indian Law Institute
Stable URL: https://www.jstor.org/stable/43951795
Accessed: 31-01-2020 09:45 UTC
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NOTES AND COMMENTS
I Introduction
PENAL LAW of a state, depending upon her criminal policy and preval
sexual mores, forbids a set of consensual as well as non-consensual
sexual acts. Such a prohibition, generally, is premised primarily either on
the absence of consent, real or presumed, of victim of sexual assault (e.g.
rape unnatural offences) or moral sentiments of the society associated
therewith (e.g. adultery & incest).
The Indian Penal Code, 1860 (hereinafter IPC), which was shaped
between 1834 and 1860 and influenced, to a great extent, by the then
common law criminal & penal policies and sexual mores , criminalizes
rape; buggery with animals, and consensual as well as non-consensual
unnatural sexual gratification.1 It does not, plausibly owing to its
unfamiliarity with the then prevailing English criminal law system,2
include incest - a consensual heterosexual intercourse between persons
within a specified degree of consanguinity - in its catalogue of specific
offences.3
However, the post-IPC criminal law system in the UK witnessed the
criminalization of incest. The punishment of Incest Act 1908, with a view
to protecting 'children from the vice' and to ensuring 'social moral
purity', made sexual intercourse between persons within a specified
degree of consanguinity a misdemeanour, punishable on conviction with
penal servitude for between three and seven years, or with imprisonment
for any term not exceeding two years. Incest by a man with a girl under
thirteen years of age, however, was punishable as an offence òf carnal
knowledge which, under the Criminal Law Amendment Act 1885, was a
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86 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 44 : 1
4. See, Victor Bailey & Sarah McCabe, "Reforming the Law of Incest" (1979) Cr
LR 749 (758); Jennifer Temkin, "Do We Need the Crime of Incest?" (1991)44 CLP
185; Sybil Wolfram, "Eugenics and the Punishment of Incest Act 1908" supra note
2, and Richard Card, "Sexual Relations with Minors" (1975) Cr LR 370.
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2002] NOTES AND COMMENTS 87
5. See, Antony Grey, "Sexual Law Reforms Society Working Party Report" (1975)
CrLR 321; B. Hogan, "On Modernising the Law of Sexual Offences" in Glazebrook
(ed.), Reshaping the Criminal Law 188 (1978); Victor Bailey & Sarah McCabe,
Reforming the Law of Incest" ibid.' D. J. West, "Thoughts on Sex Law Reform" in
R.G. Hood (ed.), Crime, Criminology and Public Policy 470 (1974), and Rodney
Brazier, "Reform of Sexual Offences" (1975) CrLR 421.
6. HMSO, Report of the Committee on Homosexual Offences and Prostitution
(Cmnd. 247, 1957) 9-10 paras 13-14. For critique of the Wolfenden Report see Devlin,
The Enforcement of Morals (Oxford, 1 965). See also, H.L.A. Hart, Law, Liberty, and
Morality (Oxford, 1968).
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88 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 44 : I
For those who are dedicated to the institution of the family and
the maintenance of the family life, incest must remain an anathema.
It is destructive both to those who participate in it and to those
who are directly involved.... It is vital to the actual security and
sense of security of all members of that unit that within it certain
boundaries are set and preserved. Of these boundaries the sexual
one is the most fundamental. Women living or in contact with
fathers and brothers need to know that sex between them is not
and never will be on the agenda.... It is fitting therefore for the
criminal law to place its weight solidly behind that boundary and
endeavour thereby to protect the individual's safety in the family
situation. An incest law must seek both to protect the family and
the individual from the family.9
7. Jennifer Temkin, "Do We Need the Crime of Incest?" supra note 4 at 187
8. Scottish Law Commission, Report on the Law of Incest in Scotland (Cmnd.
8422, 1981) para 3.10.
9. Supra note 7 at 187-188.
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2002] NOTES AND COMMENTS 89
10. See, HMSO, The Criminal Law Revision Committee- Fifteenth Report-Sexual
Offences , (Cmnd. 9213, 1984); Scottish Law Commission, Report on the Law of
Incest in Scotland , supra note 8 and Government of Canada, Sexual Offences against
Children in Canada: Summary of the Report of the Committee on Sexual Offences
Against Children and Youths (1984). See also, West, "Thoughts oil Sex Law Reform"
in R. Hood (ed.), Crime, Criminology and Public Policy supra note 5, and Smith and
Hogan, Criminal Law 467 (Butterworths. 1992Ì.
1 1 . Supra note 7 at 199.
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90 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 44 : 1
12. See, the Sexual Offences Act 1956 and the Incest and Related
(Scotland) Act 1986.
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2002] NOTES AND COMMENTS 91
13. For example, see the Incest and Related Offences (Scotland) Act 1986 and the
Crimes Ordinance Fart VI of Hong Kong. Criminal laws of Sweden, Australia,
Germany and Italy have long back-criminalised incest. See also, K. I. Vibhute, "Incest
and the Law in Malaysia: Some Reflections on the Existing and Proposed Criminal
Law" Malayan Law Journal lxxxi (1998).
14. Sec. 497 reads: "Whoever has sexual intercourse with a person who is and
whom he knows or has reason to believe to be the wife of another man, without the
consent or connivance of that man, such sexual intercourse not amounting to the
offence of rape, is guilty of the offence of adultery, and shall be punished with
imprisonment of either description for a term which may extend to five years, or with
fine, or with both. In such case the wife shall not be punishable as an abettor." For
comments see K. I. Vibhute, "Adultery and the Indian Penal Code: Need for a Gender
Equality Perspective" SCC (forthcoming).
15. For example, see Gajrajsingh v. State ofM. P., 2000 CrLJ 3765; Pooran Ram
v. State of Rajasthan, . 2001 CrLJ 91 and Mangoo Khan v. State of Rajasthan , 2001
CrLJ 3001.
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92 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 44 : 1
16. For example, see Sudesh Jhaku v. K.C.J. , 1998 CrLJ 2428 (Delhi). See also,
K. 1. Vibhute, "Sexual Violence against Children and the Indian Penal Code: Proposals
for Reform" 22 DLR (2000) 21- 43.
17. Law Commission of India, One Hundred and Seventy Second Report on Review
of Rape Laws (Government of India, 2000).
18. Ibid., para. 3.2.3.
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2002] NOTES AND COMMENTS 93
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94 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 44 : 1
19. It is reported that during 1997 only, 1 87 women (within the age group of below
14 and 44) had committed suicide for their physical abuse (rape, incest etc.). See,
National Crime Records Bureau, Ministry of Home Affairs, Government of India,
Accidental Deaths & Suicides in India ¡997 (1999) at 122.
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20021 NOTES AND COMMENTS 95
V Conclusion
20. Andrew Ashworth, "Is the Criminal Law a Lost Cause?" 1 16 LOR 225 (2000Ì.
* Professor, Post-Graduate Department of Law, University of Pune.
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