‘Crime in India-2009’ report released by the National Crime Records Bureau (NCRB) reveals that cases of incest rape have ‘increased by 30.7 per cent from 309 cases in 2008 to 404 cases in 2009’, and out of total rape cases of 21,397, 94.9 per cent involved offenders who were known to the victims.

Recent Incest rape cases

Mira Road Incest case… March 2009

Father booked for raping minor daughter in Nagpur…October 2010

Man arrested for raping daughter at Rajkot… January 2011

Incest means sexual relations between persons who, because of the nature of their kinship ties, are prohibited by law or custom from intermarrying, for instance: - Father, uncle, brother et al.

The Mira Road exposure of a father’s sexual abuse of his daughter for nine years on being encouraged by a tantric has opened a Pandora’s box of similar cases of incest across the country. The number of incest cases in India has been increasing profusely and in the rarest of rare cases the father has been sentenced to life imprisonment. Increasingly, this is also shedding light on the legal system’s shortcomings in dealing with incest, as well as on social attitudes that hinder effective solutions.

The existing laws in India are highly inadequate in dealing with incest cases and particularly where the father is a perpetrator. Many developed countries such as Britain, the US and Germany have strong laws against incest. UK, which made incest punishable in 1908, sets a prison term of 12 years for the offence. Punishment in the US varies from one state to another; extending to 20 years in the state of Massachusetts, while in Hawaii it is five years. Some countries have, however, abolished or diluted their laws against incest - this is invariably because many of them viewed sexual partnerships between closely related persons - even adults - as incestuous, and in recent years there has been some liberalisation of their views on this. Incest involving minors, on the other hand, is uniformly frowned upon in the developed world, then why is India laid back at such instances?

Such inhumane conduct shall never be exculpated and camouflaged under whatsoever circumstances. Girls need to be secured and protected against such predators rather than coercing the victim to be silent to preserve the family reputation. People need to accept that incest is a part of the society and they need to shield their children against the same. Most of the cases go unreported because the family wants to protect both the victim and the perpetrator, especially if he is the father. There would be a rise in the number of reported incest cases provided there is a fall in the society’s approach accepting it as a stigma and realizing the fact that even they could mirror such a situation.

However let us examine the present Laws governing ‘rape’ in India. According to Section 375 of the Indian Penal Code a man is said to have committed rape if he has intercourse with a woman without her consent by fear, force or fraud, when she is under 16 years of age (amendment). Sexual intercourse by a man with his own wife, where the wife is over 18 years of age, is not rape. Now there are Impediments to justice in rape cases as Section 375 leaves a few questions unanswered. For instance, what about sexual intercourse by a man with his wife, and without her consent, where the wife is over 16 years of age? “A marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity.”

The victim is the accused in the eyes of law .As a whole, the process of law is biased against the victim. If the victim is a minor, the onus is on the accused to prove his innocence. But if the victim is a major, it is up to her to prove her charge. Therefore, the defense finds it worthwhile to prove that the victim is a major. Also, in rape cases, unless the woman is examined medically within 24 hours, it becomes difficult forensically to prove that rape has occurred.

The laws too are discriminatory in nature. According to Section 155 (4) of Indian Evidence Act, “When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix (victim) was of generally immoral character.” Section 54 of Indian Evidence Act says, “In criminal proceedings (including rape) the fact that the accused person has a bad character is irrelevant, unless evidence has been given (by him) that he has a good character, in which case it becomes relevant.”

However in all fairness it must be said that there has also been a positive change in the Judiciary’s approach towards rape cases. For example, the level of corroboration needed for a victim’s testimony has really come a long way. In the 1956, Ghanshyam case, it was said that there should be complete corroboration of each and every part of the victim’s story in order for there to be a conviction. Earlier there used to be acquittals on the basis of medical opinion and medical examination of the victim, of late the Supreme Court has held in several cases that medical opinion is merely advisory in nature and rape being a legal condition and not a medical one it is not for the medical expert to decide whether there has been a rape but for the court. This shows the changing attitude of the judiciary as moving towards a more victim friendly approach and prospectively we hope to see least acquittals in such cases.

There really needs to be a legislative augmentation in laws relating to rape and incest in India or else the victims would just sit back, holding themselves accursed and anticipating denial of justice at all times. All that they would be left with throughout their lives is the physical, psychological and social trauma of being raped. With such infallible signs by the Judiciary, we await a legislation whereby the victim is no more a victim but a Survivor…