Dr. Jaykumar Bhongale
Assistant Professor and Research coordinator of Bharati Vidyapeeth Deemed to be University, New Law College, Pune
Ms. Saheli Chakraborty
Student of BA LLB, SEM VII, Bharati Vidyapeeth, Deemed to be University, New Law College.
ABSTRACT
The issue of incestuous relationships has been a subject of interest for scholars, policymakers, and the public at large, with many calling for regulation and prohibition of incestuous relationships. The debate continues to rage on, with people from different walks of life having their own opinions and beliefs on the matter. This article will delve into the debate around incestuous relationships and provide insights into why certain countries have taken steps to regulate and prohibit them. This article will examine different cultural attitudes towards incestuous relationships, the potential risks and harms associated with them, and the need for regulation and prohibition in India and abroad.
Keywords: Incestuous relationships, Society, Prohibited degree, Genetic disorders, Religion
1. INTRODUCTION
Incestuous relationships, the sexual relationships between close family members, have always been a taboo subject in many cultures across the world. Incest is a concept that has been debated over and over again, with some arguing that it is an abomination while others suggest that it is a personal choice that should be respected. Nonetheless, incestuous relationships are generally frowned upon, and in most societies, it is considered illegal and punishable by law. In recent years, the issue of incestuous relationships has been a topic of debate in India and abroad. The question of whether or not it should be legalized has sparked a fierce argument between those who support it and those who oppose it. On one side, proponents argue that the government should not interfere in the personal lives of individuals, while on the other hand, opponents believe that incestuous relationships pose a significant risk to society and should be prohibited by law.
2. THE ARGUMENT FOR PROHIBITING INCESTUOUS RELATIONSHIPS
The argument for prohibiting incestuous relationships is multifaceted and complex. Incestuous relationships can cause significant harm to those involved, as well as to society as a whole. One of the primary concerns is the increased risk of genetic abnormalities in offspring that can result from incestuous relationships. Children born from such relationships may be more prone to physical and mental health problems, which can have long-lasting effects on not only the individuals but also on society as a whole.[1]
Another argument for prohibiting incestuous relationships is the potential for abuse of power dynamics. Incestuous relationships often involve a power imbalance, with one party having greater authority or control over the other. This can lead to coercion, manipulation, and emotional harm, which can have negative effects on mental health and well-being.
In light of these concerns, many countries have enacted laws prohibiting incestuous relationships.
These laws serve to protect individuals and society as a whole from the potential harm that can result from such relationships. However, there is ongoing debate about the scope and effectiveness of these laws, as well as the potential impact on personal freedom and autonomy.
3. THE COUNTER-ARGUMENT FOR LEGALIZING INCESTUOUS RELATIONSHIPS
The counter-argument for legalizing incestuous relationships is centered on the concept of individual autonomy and freedom of choice. Proponents of legalizing such relationships argue that individuals should have the right to engage in consensual sexual relationships with whomever they choose, even if it is a family member. [2] They argue that criminalizing such relationships is an infringement on their fundamental rights and liberties. Furthermore, some proponents of this argument point out that incestuous relationships are legal and accepted in several cultures and societies throughout history. They argue that legalizing such relationships will remove the stigma surrounding them and help family members who have been in romantic relationships to come out in the open and seek help.
4. EXAMPLES OF COUNTRIES THAT HAVE LEGALIZED INCESTUOUS RELATIONSHIPS
It is important to note that most countries around the world have strict laws prohibiting incestuous relationships.[3] However, there are a few countries that have legalized it or have no laws prohibiting it. One such country is France, where incestuous relationships between consenting adults are legal. In Brazil, incestuous relationships are only considered a crime if they involve parents and their children. In Spain, incestuous relationships between consenting adults are legal but marriages between close relatives are prohibited.
In the United States, incestuous relationships are illegal in all 50 states, but the laws vary from state to state. For example, some states prohibit sexual relationships between siblings, while others prohibit sexual relationships between first cousins. In some states, such relationships are only considered illegal if they involve sexual penetration. In the United States, the laws regarding incest are determined at the state level, so the specific act and section that prohibits incest will vary depending on the state. For example, in California, incestuous relationships are prohibited under California Penal Code section 285(a)[4], which makes it a felony offense for a person to marry or engage in sexual intercourse with a person he or she knows is his or her child, grandchild, sibling, half-sibling, or parent.
In Texas, incest is prohibited under Section 25.02 of the Texas Penal Code [5], which makes it a felony offense for a person to engage in sexual intercourse or deviate from sexual intercourse with a person who is related to the offender within a certain degree of consanguinity, including parent-child, grandparent-grandchild, siblings, and half-siblings. In the UK, incest is also considered a criminal offense. Section 64 and 65 of the Sexual Offences Act 2003[6] states that it is an offense for a person to commit incest with another person who is related to them and is over the age of 16. The act defines “incest” as sexual intercourse between close relatives, including parents and children, siblings, grandparents and grandchildren, aunts and uncles, and nieces and nephews.
5. DIFFERENCE BETWEEN SECTIONS 64 AND 65 OF THE SEXUAL OFFENCES ACT, UK
Section 65[7] and Section 64[8] of the Sexual Offences Act 2003 in the UK both deal with the offence
of incest, which is defined as sexual intercourse between individuals who are closely related by blood or marriage. However, there is a difference in the age of the individuals involved and the maximum sentence that can be imposed for the offence under each section. Under Section 64 of the Sexual Offences Act 2003, incest between individuals (offender may be 16 or above and victim who are 18 years of age or older) carries a maximum sentence of two years’ imprisonment. This section applies to cases where both parties are adults and have the capacity to give consent. Under Section 65 of the Sexual Offences Act 2003, incest between individuals where one or both parties are under 18 years of age carries a much more severe punishment. The maximum sentence for this offence is 2 years’ imprisonment.
6. THE LEGAL STATUS OF INCESTUOUS RELATIONSHIPS IN INDIA
The Indian Penal Code (IPC) does not prohibit any incestuous relations between close relatives, including father-daughter, brother-sister, and even uncle-niece relationships. Section 375 of the IPC[9] only considers sexual intercourse with a woman who is a close relative as rape, and the punishment for such an offense can vary from 10 years to life imprisonment.[10]
India’s legal system recognizes the potential harms of incestuous relationships, including genetic abnormalities in children born out of such relationships, psychological trauma, and the social stigma associated with it. The Indian Constitution also upholds the right to life and personal liberty, which includes the right to live with dignity and be free from exploitation. Additionally, Indian courts have held that incestuous relationships may be considered as sexual abuse under the Protection of Children from Sexual Offences (POCSO) Act[11], which criminalizes sexual offenses against children. Some argue that the law prohibiting incestuous relationships is a violation of the right to freedom of choice and personal autonomy.[12] However, the Supreme Court of India has upheld the constitutionality of such laws, reasoning that the state has a role to play in preventing harm to individuals and society as a whole.
7. MEDICAL PROBLEMS THAT ARISE FROM INCEST RELATIONS
One of the most significant medical issues that arise from incest relationships is genetic disorders. In such relationships, there is a higher likelihood of consanguinity, which is the act of two individuals from the same bloodline or family tree having children together. This can cause genetic mutations, known as autosomal recessive disorders that can be passed down to offspring. Examples of such genetic disorders that arise from incest include sickle cell anemia, cystic fibrosis, and birth defects. Another medical problem arising from incestuous relationships is the increased risk of sexually transmitted infections (STIs), including HIV/AIDS. Incestuous relationships often involve multiple sexual partners, which increases the risk of contracting STIs. Individuals in these relationships may also be at a higher risk of contracting other infections and diseases, such as hepatitis B and C and sexually transmitted diseases such as chlamydia and gonorrhea. Incestuous relationships can lead to complications during pregnancy, such as premature births, low birth weight, and infant mortality.[13] Offspring born to parents who are closely related are at a higher risk of being born with birth defects, which can lead to developmental delays, physical disabilities, and other health problems.
Incest can also lead to sexual dysfunction in both males and females, including decreased sexual desire, erectile dysfunction, and difficulty achieving orgasm.
8. LANDMARK JUDGEMENTS
State of Haryana vs. Ved Prakash[14]: This case involved a man who had been acquitted by the lower court for raping his minor daughter. The Supreme Court upheld the conviction of Ved Prakash and
sentenced him to life imprisonment. The court stated that the crime committed by Ved Prakash was heinous and that the punishment meted out to him should serve as a deterrent to others who may consider committing similar crimes. Additionally, the court imposed a fine of Rs. 50,000 on Ved Prakash, which was to be paid to the victim as compensation for the trauma and suffering she had endured as a result of the rape.
In UK, R v. A [2011] EWCA Crim 2177[15]– In this case, a man was charged with incest for having sexual relationships with his two daughters over a period of many years. The case attracted illegality of incest because it highlighted the serious nature of the offense and the harm it causes to individuals involved. Incest is illegal in the UK under the Sexual Offences Act 2003, and it is considered a form of child abuse and exploitation.
The court in this case noted that A’s actions were a violation of his daughters’ trust and a breach of the fundamental duty of care he owed to them as their father. It also highlighted the significance of the criminal justice system in protecting vulnerable individuals from sexual abuse and exploitation, including child victims of incestuous relationships. The case established that the offense of incest does not require proof of a familial relationship beyond reasonable doubt, as it is sufficient for the prosecution to establish that the relationship is one of blood or marriage.
People v. Olivas[16], This is a California case that deals with the illegality of incest and the punishment that can be prescribed for it. The case involved a man named Julian Olivas, who was charged with committing incest with his adult daughter.
In the case, the court held that incest is a crime and is illegal under California law. The court defined incest as sexual intercourse or any sexual activity between two individuals who are related by blood or marriage. The court also noted that incest is a taboo activity that is considered morally reprehensible in virtually every culture.
The punishment prescribed for incest in California is imprisonment in a state prison for a period of two, three, or four years. In addition, the offender may be required to register as a sex offender and may be subject to other penalties, such as fines or community service.State v. Dull [17], This took place in Ohio, USA, the defendant, Mark Dull, was accused of engaging in sexual acts with his biological daughter over a period of several years. The case highlights the illegality of incest, which is sexual activity between family members who are too closely related to marry or engage in sexual activity. In Ohio, incest is punishable under the state’s criminal code, which categorizes the offense as a felony of the third degree. Specifically, section 2907.03 of the Ohio Revised Code makes it illegal for a person to engage in sexual conduct with a family member, including a parent, child, sibling, grandparent, grandchild, or step-relative. In the case of State v. Dull, the defendant was charged and convicted of multiple counts of incest under this section of the Ohio Revised Code. He was sentenced to ten years in prison and was required to register as a sex offender. The case serves as an example of how seriously the state of Ohio takes the offense of incest and the severe legal consequences for those who engage in this illegal activity
MUSLIM PERSONAL LAW ON INCEST RELATIONSHIPS
Incest refers to sexual relationships between individuals who are related by blood or marriage. In Islamic law, incestuous relationships are strictly prohibited and considered a sin. According to Islamic teachings, engaging in incest is a violation of the sanctity of familial relationships and leads to destruction of social fabric. Muslim personal law has various provisions and punishments for individuals who engage in incest relationships.[18] The Quran (4:23)[19] states that marriage with close blood relatives, including parents, siblings, children, aunts, uncles, nieces, and nephews, is prohibited. The ban is extended to marriage with step-family members through adoption or foster
care. Incestuous relationships are equated with grave sin and are considered a violation of Islamic religious laws. Islam prohibits sexual relations between close-blood relatives, as it may lead to health issues in their offspring, which may be born with physical or developmental disorders. Under Muslim Personal Law, if an individual engages in an incestuous relationship, he/she is subjected to strict punishments. The accused may face imprisonment or a fine, as well as social stigmatization. In extreme cases, the accused may be subjected to capital punishment.[20]
HINDU PERSONAL LAWS ON INCEST RELATIONSHIPS
In Hinduism, the concept of incest relationship is condemned and is considered a serious sin. According to the Manusmriti, which is one of the most important Hindu texts that guides personal laws and societal norms, engaging in sexual relationships with family members is considered a grave offense.[21] Furthermore, Hindu personal laws strictly prohibit marriage between close relatives, such as siblings, parents, children, and grandparents. The Hindu Marriage Act, 1955[22], which governs personal laws for Hindus in India in Section 5[23] prohibits marriage between people who are related by blood, adoption, or marriage within a certain degree of prohibited relationships. Additionally, Hindu personal laws consider such relationships as taboo and a matter of social disgrace. Such relationships are frowned upon by society and can lead to social ostracism.
THE IMPACT OF INCESTUOUS RELATIONSHIPS ON SOCIETY
Incestuous relationships can have far-reaching consequences on society, and it is important to examine these impacts in order to understand the need for regulation and prohibition in India and abroad. One of the key impacts of incestuous relationships is the potential for genetic disorders and birth defects in offspring. When close relatives have children together, there is a higher likelihood of genetic mutations, which can result in serious health problems for the child. This can put a strain on healthcare resources and cause significant emotional and financial stress for the family. In addition, incestuous relationships can have a negative impact on family dynamics and relationships more broadly. Incest can lead to feelings of shame and guilt, and can cause family members to become distant or estranged from one another. It can also create a power imbalance within the family, particularly when it comes to issues of consent and coercion.[24] Furthermore, incestuous relationships can have wider implications for society as a whole. They can erode social norms and values, and can undermine the sense of community and social cohesion that is essential for a healthy and functioning society. Incest can also contribute to broader social problems such as domestic violence, child abuse, and mental health issues.
LEGITIMACY OF CHILD BORN OUT OF INCEST
The question of whether a child born out of incest is legitimate or not remains a challenging legal issue. The legitimacy of a child is referred to as the legal status of being born within wedlock. In India, Section 112 of the Indian Evidence Act recognizes the presumption of legitimacy, which means that a child born to a couple during the subsistence of a valid marriage is presumed to be legitimate. However, the fact that the child’s parents are related by blood complicates the matter. Legal provisions related to marriage in India prohibit incest and classify it as an offense under Section 375 of the IPC. Additionally, Section 17 of the Hindu Marriage Act, 1955, and Section 5(iii) and (iv)[25] of the Muslim Personal Law (Shariat) Application Act, 1937, prohibits marriage between persons within the prohibited degrees of relationship[26]. The prohibited degrees of the relationship include father-daughter, mother-son, brother-sister, and maternal and paternal uncles and aunts. These
provisions are in place to prevent the birth of children with genetic defects.
In India, the legal status of children born of incestuous relationships can be determined on a case-by- case basis. In 2008, the Delhi High Court [27] that children born out of wedlock of parties who are within the degrees of prohibited relationships would still be legitimate under Hindu law unless there is a specific provision that renders them illegitimate. However, the court also observed that such children would not have any right of succession to ancestral or parental property.
In 2020, the Kerala High Court [28] was presented with a similar case where a woman appealed to have her child’s father, who was her first cousin, recognized as the biological father. The court upheld the legitimacy of the child and stated that the biological relationship of the parents could not affect the legitimacy of the offspring.
THE PSYCHOLOGICAL EFFECTS OF INCESTUOUS RELATIONSHIPS
The psychological effects of incestuous relationships are profound and damaging. Incestuous relationships can lead to a range of mental health issues including anxiety, depression, and post- traumatic stress disorder (PTSD). Incestuous relationships can also lead to a decreased sense of self- worth and self-esteem, as well as feelings of guilt, shame, and isolation. Incestuous relationships tend to be characterized by a power imbalance, with one partner having more authority than the other. This power differential can lead to emotional abuse, manipulation, and control. Additionally, the secrecy that often surrounds incestuous relationships can lead to a sense of isolation and loneliness. Children who are born as a result of incestuous relationships may also experience a range of psychological issues, including identity issues and feelings of shame and guilt. Incestuous relationships are often viewed as a form of sexual deviance and a threat to the moral fabric of society. This perception is reinforced by the belief that such relationships can lead to genetic abnormalities and may result in genetic disorders in offspring.[29]
It is important to recognize the psychological effects of incestuous relationships and to provide support and resources to those who have experienced them. Counseling and therapy can be effective in helping individuals heal from the trauma of incestuous relationships and develop healthy coping mechanisms. It is also important for society to address the root causes of incestuous relationships, such as power imbalances and societal stigmas around sexuality, in order to prevent these harmful relationships from occurring in the first place.[30]
THE ROLE OF RELIGION IN THE PROHIBITION OF INCESTUOUS RELATIONSHIPS
Religion has played a significant role in shaping societal norms and values around incestuous relationships. In many cultures and religions, incest is considered a taboo and a sin against God. The Bible, for example, prohibits sexual relations between close relatives and lists several instances where incest has led to disastrous consequences. Similarly, in Hinduism, the concept of “gotra” prohibits marriage between individuals of the same lineage or clan.[31]
The prohibition of incest is not limited to these two religions alone. Many other religions, including Islam, Judaism, and Buddhism, consider incestuous relationships as a violation of moral and ethical codes. While the role of religion in prohibiting incestuous relationships cannot be denied, it is important to note that the prohibition of such relationships is also enshrined in secular laws. Incest is considered a criminal offense in many countries and is punishable by law.
CONCLUSION
Based on this research, it is clear that incest should be strictly illegal. Incestuous relationships often involve a power imbalance, particularly when the individuals involved are related. Such relationships can also lead to genetic abnormalities in any offspring, posing significant health risks which is mentioned in this article. By strictly enforcing laws against incest, the legal system can protect vulnerable individuals from harm and ensure that justice is served. To address the current gaps in the legal system, it is essential to amend relevant sections of the IPC. Clear demarcation between rape and incest should be established, and specific provisions should be made to deal with consensual incestuous relationships. These changes would provide a legal framework for handling incestuous relationships based on informed consent, autonomy, and mutual respect. This will not only help in providing clarity in legal proceedings but also ensure that the victim’s rights are protected. In liberal countries like the UK, incest is illegal, and this is evidence that it is possible to enact laws that prohibit such relationships.
Furthermore, this research paper highlights the need for society to have a deeper understanding of the ethical and legal ramifications of incestuous relationships. It is essential to recognize the sensitive nature of incestuous relationships and the harm they can cause, which is why it is crucial to have specific laws in place to prohibit them. India should take a cue from other liberal countries like the UK and enact laws that make incestuous relationships strictly illegal. This will provide clarity and legal protection to individuals and help prevent harm caused by such relationships.
References:
[1] ‘A Look into Incest in India and Its Legal Status – The Law Express’ <https://thelawexpress.com/a- look-into-incest-in-india-and-its-legal-status> accessed 11 April 2023.
[2] ‘Incest’ (Justia, 28 May 2019) <https://www.justia.com/criminal/offenses/other-crimes/incest/> accessed 11 April 2023.
[3] ibid.
[4] PC 285 says, “Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who being 14 years of age or older, commit fornication or adultery with each other, are punishable by imprisonment in the state prison.”(State prison = punishable for 16 months or 2 years or 3years in California state prison.)
[5] Section 25.02 – Prohibited Sexual Conduct (a) A person commits an offense if the person engages in sexual intercourse or deviate sexual intercourse with another person the actor knows to be, without regard to legitimacy… punishable of felony of the third degree.
[6] Section 65 makes it an offence for a person (A) aged 16 or over intentionally to penetrate sexually a relative (B) who is aged 18 or over if he knows or could reasonably have been expected to know that B is his relative.
[7] Section 65 states that it is an offence for a person to intentionally engage in sexual intercourse with a person whom they know to be their parent, child, sibling (including half-siblings), grandparent or grandchild.
Under Section 65, the offence of incest applies only to situations where receiving party involved are aged 18 years or older and have the capacity to give consent. If convicted, the offender may face a maximum sentence of two years’ imprisonment. It is important to note that the Sexual Offences Act 2003 has replaced the previous incest laws in the UK, which were contained in the Sexual Offences Act 1956. The 2003 Act widened the definition of incest to include half-siblings and extended the maximum sentence for the offence from seven years to 14 years for cases involving minors or non-
consenting parties.
[8] Section 64 of the Sexual Offences Act 2003 in the UK also deals with incest, but it specifically addresses situations where one of the parties involved is under 18 years of age or lacks the capacity to consent.
Section 64 states that it is an offence for a person to intentionally engage in sexual activity with a close family member who is under 18 years of age or lacks the capacity to consent. Close family members are defined as a parent, grandparent, sibling (including half-siblings), uncle, aunt, nephew or niece. If convicted under Section 64, the offender may face a maximum sentence of 2 years’ imprisonment.
[9] 375. Rape.– A man is said to commit “rape” if he–
(d) Applies his mouth to the vagina, anus, and urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: First. Against her will. Secondly. Without her consent.
[10] legalupanishad, ‘The Legality of Incest in India – All You Need to Know’ (17 December 2022)
<https://legalupanishad.com/legality-of-incest-in-india/> accessed 11 April 2023.
[11] ‘Protection of Children from Sexual Offences Act, 2012’
<http://indiacode.nic.in/handle/123456789/2079> accessed 11 April 2023.
[12] Anubhav Pandey, ‘Legal Status of Incest in India’ (iPleaders, 10 May 2017)
<https://blog.ipleaders.in/incest-legality/> accessed 11 April 2023.
[13] ‘The Case against Love: A Recent Legislation on Incest | Practical Ethics’
<http://blog.practicalethics.ox.ac.uk/2008/04/the-case-against-love-a-recent-legislation-on-incest/> accessed 11 April 2023.
[14] State of Haryana v. Ved Prakash, (2008) 2 SCC 334.
[15] R v. A [2011] EWCA Crime 2177.
[16] People v. Olivas, 17 Cal.3d 236 (1976).
[17] State v. Dull, 55 Ohio St. 3d 35 (1990).
[18] legalupanishad (n 10).
[19] Quran verse 4:23 in English translation:
“Prohibited to you [for marriage] are your mothers, your daughters, your sisters, your father’s sisters, your mother’s sisters, your brother’s daughters, your sister’s daughters, your [milk] mothers who nursed you, your sisters through nursing, your wives’ mothers, and your step-daughters under your guardianship [born] of your wives unto whom you have gone in. But if you have not gone in unto them, there is no sin upon you. And [also prohibited are] the wives of your sons who are from your [own] loins, and that you take [in marriage] two sisters simultaneously, except for what has already occurred. Indeed, Allah is ever forgiving and Merciful.”
[20] legalupanishad (n 10).
[21] LI Network, ‘The Intricate Viewpoint of Incest Under the Indian Laws’ (Law Insider India, 11 October 2021) <https://www.lawinsider.in/columns/the-intricate-viewpoint-of-incest-under-the- indian-laws> accessed 11 April 2023.
[22] ‘Hindu Marriage Act, 1955’ <http://indiacode.nic.in/handle/123456789/1560> accessed 11 April 2023.
[23] Section 5 of the Hindu Marriage Act, 1955, lays down the conditions for a Hindu marriage to be valid. It includes various requirements such as age, mental capacity, and prohibited degrees of relationships. The section prohibits marriage between people who are related by blood, adoption, or
marriage within a certain degree of prohibited relationships.
However, it is important to note that the term “incest” is not specifically mentioned in Section 5 of the Hindu Marriage Act, but it is covered under the broader category of prohibited degrees of relationships.
[24] Network (n 21).
[25] Section 5(iii) of the Act prohibits marriages between a male and his mother, and between a female and her father. Section 5(iv) prohibits marriages between a male and his grandmother, and between a female and her grandfather
[26] Section 3 of the Muslim Personal Law (Shariat) Application Act, 1937 prohibits marriage between persons who are within the prohibited degrees of relationship under the Muslim law.
[27] 2008 (103) DRJ 612.
[28] 2020 (4) KLT 763.
[29] Network (n 21).
[30] Brett H McDonnell, ‘Is Incest Next’ (2003) 10 Cardozo Women’s Law Journal 337
<https://heinonline.org/HOL/Page?handle=hein.journals/cardw10&id=345&div=&collection=>.
[31] ‘A Look Into Incest in India and Its Legal Status – The Law Express’ (n 1).
