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Report No. 172

2.3. Views of the "Sakshi" on the IPC provisions.-

On the first day of hearing (13.9.99), the said three persons expressed their appreciation of the draft prepared by the Law Commission stating that it was a substantial advance on the subject and met many of their ideas. Even so, after a good amount of discussion, they came forward with the following changes in the said draft:

(a) The age of the person assaulted - referred to in clause "sixthly" in section 375 and in Explanation (2) to section 375 and in section 376(1) (where the age of the wife is referred to) - should be raised to sixteen. Raising the said age to eighteen may not be appropriate.

(b) A provision must be inserted to the effect that if the person assaulted gives his/her age, the court shall presume it to be so. A provision on the lines of section 114A of the Evidence Act be suggested.

(c) In the definition of sexual assault in section 375, there should be an explanation saying that penetration shall mean penetration to any extent whatsoever, inasmuch the penetration is never complete in the case of children.

(d) Explanation (2) to draft section 375 (which says that sexual intercourse by a man with his own wife, the wife not being under 15 years of age, does not amount to sexual assault) should be deleted. Forced sexual intercourse by a husband with his wife should equally be treated as an offence just as any physical violence by a husband against the wife is treated as an offence. Following the same logic, they submitted that the words "unless the person subjected to sexual assault is his own wife and is not under 15 years of age in which case he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both" in section 376(1) of the Law Commission's draft [adaptation of the existing section 376(1)] should also be deleted. Section 376A should also be deleted, they said, on the same reasoning.

(e) In the first proviso to draft section 376(1) (in the draft of the Commission), the words "the father, grandfather or brother" should be substituted with the words "a person holding position of trust vis-a-vis the other person" and further to add an explanation saying that the said expression shall include father/step father, brother/step brother, teacher, instructor, guardian and the like.

(f) Consent should be defined to mean "unequivocal voluntary agreement".

2.3.1. A copy of the handout given by the persons mentioned in paragraph 2.2.1, supra of this chapter, on the first date of meeting is placed at Annexure-C.

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