Intercourse by a man with his wife during separation is an offense. Discuss the law relating to the same.

Question: Intercourse by a man with his wife during separation is an offence. Discuss the law relating to the same.

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Answer

Section 376-B of the IPC makes Sexual intercourse by a husband upon his wife during separation punishable and states that- “whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.”

Explanation.—In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of Section 375.

So basically, section 376B talks about the sexual intercourse done by the spouse upon his significant other during detachment or any kind of partition or the period of separation.

Essentials of Section 376B

1. Such intercourse should occur without the consent of the wife. Consent plays a key role in this section.
2. Such incidents should occur only during the separation period.
3. In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of Section 375.
4. This part will be summoned just when the spouse is living either independently or has a declaration of judicial partition.
5. The most important ingredient is that this act must be done by a man to his own spouse with whom he was married and afterwards isolated or separated. Sex with any other individual’s spoused doesn’t get covered with this section. This section is especially for a couple who got isolated.

For instance, if there is a case filed for divorce by a couple and during the separation period, the husband has intercourse with his wife, then upon can file a complaint against the husband under section 376B and the husband shall be held guilty.

In the case of Chand Mohan Sammader v. State Of West Bengal (2011), it was seen by the summit court that consent for having sexual intercourse should be free in nature. If by any chance the consent is not free or willful, it will be considered as rape and punishable under Section 376B. In this case, the consent is not free or is obtained under the state of unsoundness of the spouse, and then it shall not be considered as free consent and hence punishable under Section 376B.

In Bishnudayal v. State of Bihar, AIR 1981 SC 39, where the victim, a girl of 13 or 14 years of age, was sent by her father to accompany the relatives of his elder daughter’s husband to look after her elder sister for some time, was forcibly ‘married’ to the appellant and had sexual intercourse with her, the accused was held liable for rape under section 376 of IPC.

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