The Author, Ms. Preeti Agarwala, presently presiding as Principal Magistrate, Juvenile Justice Board-IV (East) Delhi.
'A different kind of love’; the young witness aged approximately about 12 years stated to me. While recording the statement of this young innocent victim who kept unfolding her ordeal as a daughter and what she had gone through, the harsh reality of incest came home.
The malady that incest is, is not some new phenomena arising out of some latest academic interest or theory. That it was always there is evident from narratives as old as found in the literature of 497 BC. The latent theme of incest was explored by Sophocles in ‘Oedipus Rex’ where a young man unwittingly kills his father and marries his mother that has long been treated as an expression of every male child's unconscious desires as seen in the Freudian Complex. Again in the celebrated work ‘Metamorphoses’ by Ovid, the story of Myrrha who lusts for her father Cinyras was explored where she had finally turned into the eternally weeping Myrrh tree. Both the above fables with the theme of inadvertent incest end in disaster and shows ancient taboos against incest. The angst that incest can create can be seen exemplified by Shakespeare in Hamlet where the eponymous hero tells his friend Claudious on his mother marrying his uncle i.e. his father's brother:
“She married, oh most wicked speed, to post
with such dexterity to incestuous sheets”
What is ‘incest’? Well, the question itself puts one in discomfort. It is better hushed and not talked about. In some sense it is and has always been a taboo and raising questions on it is seen as a threat to the entire society, the institution of family that is, the narrative of a happy and secure 'normal' family life and the ensuing power structure and status quo in the society. Probably it is a question best left unanswered. Is it?
The word "incest" is derived from latin 'incestus' meaning "impure and unchaste". The word incest as is widely understood means sexual relationship between family members, close relatives and kinship who cannot enter into a marriage. Though morally forbidden and discouraged in almost every society and religion with few exceptions, legally it has been barred only in a few countries. It is nowhere defined in the penal provisions of India and therefore it is perse not punishable and not a crime in India. Grossly under reported, where reported, at present in India, it is broadly covered (1) under section 376 (2) (f) IPC where incestuous rape is caused without consent or is forced. Section 376 clause (2) sub-clause (f) provides punishment for rape where it is committed by a relative, guardian or teacher or a person in a position of trust or authority towards the woman. Mind you, this section does not apply to male victims. (2) In circumstances where the child is a victim of forced incest, it is called "juvenile incest".
Section 5 (n) and 9 (n) of the POCSO Act, 2012 which deals with aggravated penetrative sexual assault and aggravated sexual assault. Section 5 (n) reads, "Whoever being 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 child". Both the above discussed Acts are not exclusively dealing with offences of incest.
There is no common legal status of incest in India. The personal laws prescribe the rules, regulations and prohibitions of prohibited degrees of relationship. In Hindus, marriage is prohibited if the couple has a prohibited degree of relationship or are sapindas. The Hindu Marriage Act, 1955 declares such marriage as void-ab-initio.
Section 5(iv) of the Act states that a man and woman cannot marry if they are under the prohibited degrees of relationship i.e.
(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; or
(iii) if one was the wife of the brother or of the father's or mother's brother or of 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 of two sisters.
Section 5(v) especially states that a marriage between a hindu man and woman can only be held valid or be solemnized only if they are not in a prohibited degree of relationship or are not considered as sapindas.
Sec 3(f) of the act defines the relation of sapindas which can be summarized as “when there is a common ancestor of two persons”. Therefore, the majority of incest marriage is considered prohibited according to Hindu Personal Law.
Muslim Personal Law and Special Marriage Act, 1954 also prohibits marriage between blood relations. Such marriages are considered null and void. Children born out of incestuous relations are considered illegitimate and their inheritance rights get restricted. The legal status of consensual incest is not recognized in India because of country's diverse social cultures. Imposing a common legal status is not an acceptable practice since it may be violative of the personal laws.
Digging deeper, the only place where the offence of incest have found a mention is the Goa Children's Act, 2003 which defines “incest” as:- the commission of a sexual offence by an adult on a child who is a relative or is related by ties of adoption and section 8 (2) prescribes punishment of imprisonment of not less than 10 years which may extend to life imprisonment together with a fine amount of rupees 2 lakhs for a incest. In Mr. Bhau Valve vs. State through PP decided by Bombay High Court in 2010, the victim a 16 year old girl was sexually abused by her father for a period of 5 years resulting in pregnancy. The accused was sentenced to life imprisonment under the above section and rupees 1 lakh compensation was awarded to the victim.
Why the above legislations are not sufficient and an exclusive separate legislation is required to deal with incest offences:- the offence of incest is much more grave with implications far more serious than any other kind of sexual abuse. Incest does not imply merely establishing or committing sexual intercourse with a victim but also all other kinds of sexual abuse and harassment including 'that look', 'that pat', 'that uncomfortable touch', 'sexually coded words', 'jokes', 'molestation' and every other kind of sexual abuse. It is gender neutral affecting both males and females. It defies all the laid rules pertaining to the safety and sanctity of a family as the perpetrator in the case of incest is actually also the protector and the provider of the family. The victim is often dependent upon the abuser being the daughter, sister, niece, nephew, son and so on. The perpetrator is the one who wields power and authority in the family set up leaving the victim voiceless. The offence of incest is an insider’s job and in this case there is no ‘stranger danger’, but the threat comes from within the family causing a life time of trauma to the victim. It has often been debated as to whether the victim of incest should actually be called a “victim” or a “survivor” given the immense psychological and social impact it has upon the victim as well as his/her family. Even discussing about it is a taboo and is seen as a threat to the existing structure of the society. What is striking is the silence and the denial even towards the very existence of such an offence in the society. It has often been deemed to be "vice of the poor" by the rich and "prerogative of the rich" by the poor while all along it has been existing across all strata of the society within the four corners of the bedroom. Not having a separate law is a reflection of the society's emotional blindness towards it and a refusal to acknowledge that it exists. To quote, E. Sue Blume in "secret survivors”,
“...incest is rape by extortion. Thus the child's very childhood becomes a weapon used to control her”.
It is high time that the offence of incest is brought out of closet to the dining table. It is important to spread general awareness towards it and talk about it and listen to the voiceless and silent victims for whom neither there is any separate legislation nor any separate redressal system. The abuse of incest deeply impacts not just the victim but also the other family members as well as the abuser himself. The offence involves a slow grooming of the victim so that the abuser is able to continue the offence as well as keep the victim quiet and not talk about it leading to deep psychological and developmental disorders including issues relating to trust, low self esteem, complicated sexual relationships, anxiety disorders, cutting/slashing of body parts, substance abuse and even suicidal tendencies. The victim also suffers from a feeling of guilt and self blame as the abuser is often the parent or an elder sibling or a close relative on whom the victim probably relies for protection as well as his/her needs. The victim is left alone to suffer and is taught lessons on family honour and family sanctity. “What happens in home, remains in home”, is what the victim of an incest often told. The hypocrisy and double standards of a grossly unfair society leaves a young, innocent and vulnerable victim unheard, unprotected and unempowered.
Statistics to me are not just a number but are real people. Statistics show that one out of every five girls and one out of every seven boys are victims of incestuous sexual abuse. Seventeen percent of all sexual abuse is incest. This when it goes without saying that most of them go unreported. Be it the police, family members or even other friends and relatives....Incest is one offence singled out by the sheer denial of its existence and reluctance to even hear it, forget about registering it.
At different points of time four separate bills have been introduced in the parliament to make incest a separate crime:
- The Incest Offences Bill, 2009
- The Incest and Sexual Abuse in Family (Offences) Bill, 2010
- The Incest Offences Bill, 2012
- The Incest Offences and Sexual Abuse of Females in Family (Prevention) Bill, 2020.
Yet, they all failed to materialize leaving a big void.
The prevalence of incest in our society is widespread and its alarming to see the lethargic and lackadaisical response towards it especially after ‘me too’ movement which has made our society more cognizant of child sexual abuse. The juvenile justice boards across the countries are also witnessing a significant number of sibling sexual abuse cases yet the "SILENCE" is unsettling.
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