The Jurisprudence Of Silence: Criminal Law’s Inadequate Engagement With Incestuous Abuse In India
- IJLLR Journal
- May 22
- 2 min read
Dr. Sandeep Saini, Assistant Professor, Geeta Institute of Law, Panipat, Delhi NCR
Chinky Nanda, Assistant Professor, Geeta Institute of Law, Panipat, Delhi NCR
ABSTRACT
Incestuous abuse remains one of the most concealed and under-theorized forms of sexual violence in India. Although Indian criminal law penalizes rape, penetrative sexual assault, and aggravated child abuse under the Bharatiya Nyaya Sanhita, 2023 and the Protection of Children from Sexual Offences Act, 2012, the legal framework continues to avoid explicit recognition of incest as an independent criminal offence. This silence reflects a deeper jurisprudential failure to acknowledge violence occurring within family structures, where relations of trust, authority, dependency, and patriarchy intensify coercion and obstruct justice. The paper critically evaluates the inadequate engagement of Indian criminal jurisprudence with incestuous abuse and argues that the absence of specific statutory recognition weakens survivor-centric justice.
The research adopts a doctrinal and socio-legal methodology through an analysis of statutes, judicial decisions, feminist legal scholarship, constitutional jurisprudence, criminological theories, and comparative legal frameworks from the United Kingdom, Australia, and the United States. The paper demonstrates that incestuous abuse cannot be examined merely as a generic sexual offence because familial violence produces unique psychological trauma, social stigma, and evidentiary complications. The study further analyses how patriarchal family structures, cultural notions of honour, economic dependency, and institutional insensitivity contribute to underreporting and legal invisibility.
The paper argues that India’s current criminal justice approach inadequately addresses the structural realities of incestuous abuse and often prioritizes preservation of family reputation over the dignity and autonomy of survivors. It proposes legal reforms including explicit criminalization of incestuous abuse, trauma-informed judicial procedures, enhanced survivor rehabilitation frameworks, specialized investigative mechanisms, and greater constitutional recognition of bodily autonomy and sexual justice. The paper ultimately contends that transforming the legal response to incest requires both statutory reform and a broader social challenge to patriarchal notions of familial immunity.
Keywords: Incestuous Abuse; Criminal Jurisprudence; Familial Sexual Violence; Patriarchy; Survivor-Centric Justice.
