Marital rape: our laws and lacks

A. K. M. Nurul Amin:

Marital rape is a sexual offence. It is recognized as the most severe form of sexual violence all over the world. However, it is a common tendency to think that an offender of rape is usually a stranger, a malicious person. In rape, the perpetrator can be anyone, a stranger or even a family member. It is hard to think to the people that rape is possible in existence of a marital bond. However, rape could actually take place in the existence of valid marriage, and this form of rape is called “marital rape”.

Nowadays, more than 100 countries have enacted marital rape as a punishable criminal offence. However, it is a drawback for us, Bangladesh did not enact any special law. Moreover, there is no any special provision regarding marital rape in our substantive law. The lack of laws, corroboration of laws and social stigmas are the preliminary cause that the evil of marital rape is still hidden beyond the justice.

The Penal Code, 1860 define the rape as a criminal offence but the area of marital rape is still uncovered by this section. Section. 375 of the Penal Code, 1860 of Bangladesh provides that-

A man is said to commit “rape” who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:

Firstly:- Against her will.

Secondly:- Without her consent.

Thirdly:- With her consent, when her consent has been obtained by putting her in fear of death, or of hurt.

Fourthly:- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly:- With or without her consent, when she is under fourteen years of age.

Explanation:- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception:- Sexual intercourse by a man with his own wife, the wife not being under thirteen years of age, is not rape.

Consent and age are the highlighted issues of this section. Exemption clause of this section uphold that, there is no rape, where there is sexual intercourse by the husband with his own wife not being under 13 years of age. This provision is beyond The Child Marriage Restrain Act, 1929. The girl of 13 years of age is not legally able to get married under the Child Marriage Restrain Act, 1929. Section. 4 of The Child Marriage Restrain Act, 1929 describe that-

“Whoever, being a male above twenty-one years of age, or being a female above eighteen years of age, contracts a child marriage shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand Taka, or with both.”

This section make a clear sense that, a girl under eighteen years of age is not able to get married as it is criminate the conduct as punishable offence.

Forth clause of section. 375 of The Penal Code, 1860 clearly says that- It is immaterial whether the girl give her consent in physical intercourse when the girl is below 14 years of old. But the exemption clause uphold that, Sexual intercourse by a man with his own wife, the wife not being under 13 years of age, is not rape. That means only by the reason of marriage the girl under 13 years of age is able to give her consent of physical intercourse. The exemption clause of section. 375 is unreasonable in considering the consent in case of rape.

Moreover, section. 376 of The Penal Code, 1860 provides the less punishment when rape is committed by the husband. Thus the provision of section. 375 and 376 differentiate the general rape and marital rape. Hence, the statement of marital rape under The Penal Code, 1860 of Bangladesh is totally inconsistent with The Child Marriage Restrain Act, 1929 as well as various international laws and conventions.

Last 20 years, the legislative body enacted some special laws to safeguard the woman and child against violence. For example- Nari O Shishu Nirjaton Daman Ain, 2000, Domestic Violence (Prevention and Protection) Act, 2010, The Shishu Ain, 2013 etc but those laws does not incorporated any special provision regarding marital rape. Section. 9 of the Nari O Shishu Nirjaton Daman Ain, 2000 only brings the punishment of rape and remain silent about marital rape.

Marital rape occurs within the marital bond. When it acknowledge that marital bonding create a family it must admit marital rape is a family violence. Unfortunately, The Domestic Violence (Prevention and Protection) Act, 2010 still cut out the provision of marital rape. It is sad to say that section. 3 of The Domestic Violence (Prevention and Protection) Act, 2010 only says three kinds of domestic violence- (a) Physical abuse, (b) Psychological abuse (c) Sexual abuse. The term sexual abuse does not disclose the inner meaning of the marital rape. Therefore, the punishment of marital rape cannot be ensured by The Domestic Violence (Prevention and Protection) Act, 2010 whereas the offence is the cruelest form of domestic violence.

The lack of procedure also drawback to prosecute the crime. The procedural law The Code of Criminal Procedure,1898 try to draw the procedure of marital rape. Section. 561 of The Code of Criminal Procedure,1898 the special provision with respect to offence of rape by a husband. The commentary of this section is that, only the Chief Metropolitan Magistrate or the Chief Judicial Magistrate take cognizance of the offence and sent the offender for trial for such offence. The Chief Metropolitan Magistrate or a Chief Judicial Magistrate deems it necessary to direct an investigation by a police-officer, with respect to such an offence as is referred to in sub-section (1), no police-officer of a rank below that of police inspector shall be employed either to make, or to take part in, the investigation.

Although this section give the procedure for marital rape but it is not sufficient to prosecute a person properly. As it is difficult to obtain accurate evidence of marital rape within the family, for this reason this offence should have the special procedure of collecting evidence and trial. Moreover, proceedings to be held in camera should be incorporated for the privacy, reputation and loyalty of the family.

Finally, due to lake of awareness, law and there proper application woman are repeatedly raped by their husband. In addition, there are no stringent laws protecting the victim of marital rape. So, the amendment, enactment and enforcement of laws regarding marital rape is crying need of time.

The writer is an Apprentice Advocate at Dhaka Judge Court. E-mail: akm1817@gmail.com

N.B: Opinions published in this section are the author’s own. The opinions expressed may not be consistent with the editorial policy of lawyersclubbangladesh.com