Report No. 172

3.3. Amendment of Section 376A.-

Representatives of Sakshi wanted us to recommend the deletion of section 376A (as well as Exception to section 375). Their logic was this: when a man who causes hurt or any other physical injury to his own wife is liable to be punished for such offence like any other person causing such hurt or physical injury, why should a husband who sexually assaults his wife, who is living separately under a decree of separation or under any custom or usage, be not punished like any other person. Section 376A, which provides a lesser punishment to a husband who sexually assaults his own wife living separately in the aforesaid circumstances, they argued, is arbitrary and discriminatory.

They say that once section 376A is deleted, the husband in such a case would be punished under section 376(1) which carries higher punishment than section 376A. While we appreciate the force of said argument in the context of the wife who is living separately under a decree of separation or under any custom or usage, we can not at the same time ignore the fact that even in such a case the bond of marriage remains unsevered.In the circumstances, while recommending that this section should be retained on the statute book, we recommend enhancement of punishment under the section.