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Incest in India Vis-À-Vis International Perspective

Introduction

Incest, in a simple sense, means sexual relations between two people who belong to the same family or relatives. Although this practice is prohibited in many countries, many cultures do not define such relationships as prohibited; so many people still follow it. In India, there is no specific provision given which defines incest. It falls under a grey area. If two adults who belong to the same family enter into an incestuous relationship, they can be punished for rape, sodomy, or any other charge depending on the circumstances. This issue is underreported and is very prevalent in India.

Legal Safeguards for Incest in India

Although incest is not defined under any law, there are punishments given in some laws, which are as follows –

Hindu Marriage Act

In the Hindu Marriage Act, some marriages are considered void. These are given in section 5 of the act. The marriage between parties will not be valid if

  • Lineal ascendants or descendants to each other. For example, a girl cannot marry her father or her grandfather, and in the same way, a mother cannot marry her son or grandson.
  • Spouse lineal ascendants or descendants or have a uterine Blood relationship, meaning if the parties have descended from a common foremother by her different husbands. For example, a son cannot marry his mother-in-law, and an individual cannot marry his daughter-in-law or son-in-law.
  • Sibling or spouses of siblings. For example, a boy and his sister cannot marry each other, and a brother-in-law and sister-in-law cannot marry each other.  
  • An individual cannot marry his second cousin on the mother’s side and up to the fourth cousin on the father’s side.
  • If the parties are brother and sister, uncle and niece, and aunt and nephew. Although these relationships are prohibited, some customs allow such marriages, given that both the parties follow such customs.

The marriage between two parties will be void if they are sapinda of each other, meaning if they derive from a common ancestor unless their customs allow such kinds of marriage.

In the case of Shakuntala Devi v Amar Nath, the petitioner appeal to the court to dissolve the marriage. The petitioner argued that the marriage falls under a prohibited relationship, and fraud was obtained. The court held that the petitioner could not prove that the relationship was in the prohibited degree. The court also held that since the parties belong to the Aroras community where the marriage between people of prohibited relation is not considered offensive. 

Muslim Marriage Act

Under the Muslim school of law, there are two types of rules that are followed, i.e. Sunni and Shiya. These schools were formed because of different philosophies between the people. In Muslim law, there are three types of marriage 

ShahihFasidBatil
This marriage is lawful. This is not a valid marriage, but it can become valid if the defect or impediment is removed.  This type of marriage is void. 
https://www.lawyerslawhub.com/?p=574

 Both schools have different laws on incest. Under Shiya School, the marriage will be considered void under three grounds:  

Consanguinity

It means when the parties share a blood relation with each other. Here the parties are the descendants of the same ancestor. A man cannot marry 

  • His mother or grand-mother however high or low
  • His niece or grandniece, howsoever low
  • His daughter or granddaughter howsoever low
  • His uterine or consanguine sister
  • His aunt or great-aunt either from father’s or mother’s side, howsoever high

The children born from these kinds of marriage are considered illegitimate. 

Incest in India Vis-À-Vis International Perspective
https://www.lawyerslawhub.com/?p=574

Affinity

It means marriage with certain persons will be considered void. These include close relatives, and because of that closeness, the marriage is considered void. Both the schools of Muslim law support this kind of prohibition. This also prohibits a man who had a sexual relationship with a woman to marry her relatives with whom affinity would arise if he married her. Under this concept, a man cannot marry 

  • His wife’s mother or grandmother, howsoever high
  • Wife’s daughter or wife’ granddaughter howsoever low.
  • Wife of father or grandfather howsoever high.
  • Wife of son and wife of grandson howsoever low.  

This principle is also applicable to women. A woman is prohibited from marrying her daughter’s husband howsoever lower. This would only be prohibited when a physical relationship is established. 

Fosterage

Fosterage means a woman who has nourished a child who is not hers. This woman will be called a foster mother. This type of relationship is prohibited in all Sunni and Shiya, but there is a difference. In Shiya School, foster marriage will only be considered when the foster mother fed the child. A man cannot marry

  • His foster mother or foster grandmother.
  • Daughter of the foster mother.

But under Sunni School, the law is relaxed, and a man can marry

  • Sister’s foster mother
  • Foster sister’s mother.
  • Foster daughter.
  • Foster sister.

Laws against Incest in the World

The law against incest is different in the rest of the world as compared to India. 

Laws against Incest In United States

In the U.S., the term incest and its punishment vary from state to state. In almost all the states, the sexual relationship between lineal ascendants and lineal descendants, siblings, aunt and nephew, and uncle and niece are considered incest, but in some states, the definition of incest is a bit different. In Rhode Island, the law against incest is abolished, and only incestuous marriages are considered a criminal offence. In New Jersey, sexual relations between two people of 12 years or older cannot be charged for such offence. The punishment for incest is strict in Texas, Oregon, Virginia, and Massachusetts, where it is punishable by imprisonment up to 20 years. In Nevada, Montana, Michigan, Idaho, incest can be punishable with life imprisonment. 

Laws against Incest In United Kingdom

In the United Kingdom, if a person has sex with another person who is related to him as a parent, grandparent, child, adopted child, brother or brother in law, sister or sister in law, uncle, aunt, niece, and nephew, it will be considered as incest. Incest is defined in the Sexual Offences Act, 2003, and the punishment can be given by imprisonment not exceeding two years. This act is applicable in England and Wales. The Criminal Law Act, 1995 prohibits incest in Scotland. 

Conclusion

The problem of incest is prevalent. There has been some legal framework regarding incest made by countries like the U.K., the US, Germany, etc. However, in India, the crime of incest is not defined. India must recognize such crimes and make strong laws against such offences. 

Animesh Sharma

Animesh Sharma is from Jaipur, Rajasthan. He has completed B.A. LL.B (Hons) from Manipal University Jaipur. He like to play football, listen to music, play piano, play games.

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