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INTRODUCTION.

The word “incest” is derived from the Latin word “incestuous,” which means “unchaste or impure.” Incest also refers to a practice that is not natural or in accordance with nature in its general sense. An Incestuous relationship can be defined as sexual intercourse between two members of the same family or close relatives. Though we see incest as a ‘wrong’ both morally and culturally. It is very surprising to see that incest relationships between consenting adults are not illegal in India and neither they are regulated. The interesting question is why do we see an incestuous relationship as morally wrong? and do we need regulation or prohibition of such relationships to control them in any sort?

The Hindu Marriage Act of 1955 defines “Degree of Prohibited Relationships” under Section 3(g) and Section 5 of the Act, it prohibits marital relationships between the relationships as mentioned under Section 3(g). Shiya law prohibits/provides absolute incapacity on three grounds: Consanguinity: If the parties to the marriage descend from the same ancestry or kinship it is a consanguineous relationship, Affinity: Any legal impediment to marriage that results from marriage itself. This is true even when an affinal connection results from a broken marriage, Fosterage: Any other woman besides the biological mother whom the child has breastfed from before the age of two, and the connection changes to one of fosterage.

WHY WAS IT CONSIDERED A ‘WRONG’?

Let’s first look at the moral argument.

The main reason behind making incestuous relationships morally wrong is to prohibit inbreeding within the same genealogy because inbreeding within the same family might result in the child being born with a deformity and that was considered a sin. Hence such intercourse was morally prohibited. Since we had no technologies that could help with pregnancy or medicines to help with deformity, we had no choice but to accept it as divine punishment and may have to kill the child or live with it, but times have changed, and we have many technologies to detect any abnormalities in children and treat them during and after birth, so the question remains do we still need to accept incestuous intercourse as a wrong?  At least morally there should be nothing holding us back, right?

Is it because we have been told for a long time as a ‘wrong’ that we have infused that into our culture as a ‘wrong’ as well? If so, why didn’t we ever make a law prohibiting such relationships and make it legally culpable as well?

WHY WE DO NOT MARRY WITHIN THE SAME FAMILY?

To for us answer this question, first, we need to answer the question of why we marry in the first place. Historically, when we see from the sociological context, we can understand that people married for the following two major reasons:

• For procreation.
• For pleasure.

Hence the reason for procreation after marriage came inherently with the social contract of marriage.

Now, we can answer why people from the same family are not allowed to marry each other even in the past or in contemporary times. The reason is that the people feared a child being born with a deformity. Which was a huge possibility in incestuous marriages.

Moreover, we even prohibit such marriages through laws as well. Section 3(g) of the Hindu Marriage Act of 1955 defines “Degrees of Prohibited Relationships” and Section 5 clause (iv) of the Act states that any marriage between these relationships is void under the Act.

As per the Section 3(g):

Two persons are said to be within the “degrees of prohibited relationship” —

(i) if one is a lineal ascendant of the other; or

(ii) if one was the wife or husband of a lineal ascendant or descendant of the other;

(iii) if one was the wife of the brother or the father’s or mother’s brother or the grandfather’s or grandmother’s brother of the other; or

(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother

 and sister or of two brothers or two sisters;

Explanation. — For clauses (g), the relationship includes—

(i) relationship by half or uterine blood as well as by full blood;

(ii) illegitimate blood relationship as well as legitimate;

(iii) relationship by adoption as well as by blood;

and all terms of relationship in those clauses shall be construed accordingly.

Under Muslim Law, A child born from an incestuous relationship is regarded as having no legal parentage. Not only incestuous relationships but also other illegal marriage arrangements can result in this illegitimacy.

The Special Marriage Act under Schedule 1 of the Act, the degrees of prohibited relationships are given like all personal laws and regulations pertaining to  marriage, forbids marriage between relatives who are:

1. relationship by half or uterine blood as well as by full blood.
2. illegitimate blood relationship as well as legitimate.

• relationship by adoption as well as by blood.

The act explicitly states that any marriage between such relations is void.

Hence, we can conclude that marriages between incestuous relationships are prohibited morally, culturally, and even legally in India.

ARE INCESTUOUS RELATIONSHIPS COMPLETELY LEGAL IN INDIA?

The answer to this question is a straight ‘no’. In India, the belief of incest is that it is never voluntary and is frequently an indication of an individual’s power and domination. Power serves as a catalyst for familial incest to start. When it comes to incest, the typical response is denial or skepticism because the family’s reputation is prioritized over the best interests of the child. Incest was finally considered a crime in India at least to protect minors.

The general principle of law to protect minors is now very strictly followed in India. The Indian parliament passed The Protection of Children from Sexual Offences (POSCO) Act in 2012 and has prohibited sexual relationships with children (male or female). By a cursory reading of the Act, we are able to figure out that the consent of the child in such activities is irrelevant.

As per Section 2(1)(d), A child means any person who is below the age of eighteen years.

Hence any sexual relationship with a person less than eighteen years of age is prohibited by law as the law considers minors incapable of understanding the consequences of their acts.

Section 5(n) of the Act states that:

whoever is 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 a child.

This the law considers an “Aggravated penetrative sexual assault”. The punishment for the same is much higher than the normal substantive punishment.

We can clearly understand from the above legislation that sexual intercourse in an incestuous relationship who is of those less than 18 years old is made illegal even in India. The reason is to protect children who cannot protect themselves, especially from the people who are supposed to be protecting the child in the first instance which may well be their mother, father, brother, uncle, aunt, etc.

The NCRB report of 2021 states that there are 31,677 reported offenders related to Victims of Rape and out of which 30,571 are Cases of offenders known to Victims and out of that 2,424 were family members

Looking at the numbers we may feel that 2000 plus people in a population of a billion seem very less for legislation to see light. Let us bear in mind that these are the reported number of cases and not the actual numbers in reality. The actual numbers may be much higher than what we see in the Crime report. Many victims of these assaults never want to talk about these encounters and wants to bury this deep inside them. Hence the actual numbers may be fat from what we even see.

WHY DO WE NEED TO REGULATE OR PROHIBIT THIS TYPE OF RELATIONSHIP?

We understand that the law prohibits sexual relationships with minors, as stated earlier there are no penal provisions that stop or control two consenting adults to have sexual relationships even if such relationships would amount to incest.

The moral argument against incest and why it was considered taboo, but we have advanced technologies and contraceptives in our contemporary times. Hence my question is should we disobey a moral code because we found a hack? Or should we make our laws more stringent to make sure people obey the moral code?  

Many countries consider incestuous relationships as morally taboo and several countries have already penalized the act as well. Countries such as even USA, Canada, Britain, etc. have penal provisions illegalizing the act. The question is does India need to do the same as well and prohibit by law the act of Incest?

In one of its reports titled “Voices from the Silent Zone,” the Delhi-based NGO RAHI (Recovering and Healing from Incest) reported that more than 75% of Indian women living in middle- and upper-class households experience incestual abuse. Most often, the uncle, brother, domestic helper, or any other person whom the woman establishes a fiduciary connection with, is the abuser.

Incest has always existed in India, though there are no records to show when it all began. Needless to say, there are many people who engage in incestuous relationships. The reason why India has not made any law on the matter per se is probably that India considers such relationships as never consensual and charged as rape. For e.g. Let’s say two consenting adults have intercourse and if there is any sort of fiduciary relationship between the two which is common in incestuous relationships then the man is charged under 366 of the Indian Penal Code, 1862. The demerit of this is that most of the time, the woman who might have been the instigator of the crime can easily escape punishment even though they were proper consent to the act.  

Hence, in my opinion, in addition to the above clause, India also needs an Incest prohibition law that is gender-neutral and has the power to prosecute both parties who engage in incestuous relationships.

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ARTICLE WRITTEN BY RAMASHESHAN P K.