Marital Rape: A Lawful Crime
Mahmodur Rahman:
Rape is one of the most heinous crime to the social environment.Rape not only destroy it’s victim physically but also psychologically.Marital rape or spousal is also no difference and even in some degree worse.As it was observed by American Sociologist Dr David Finkelhor “When you are raped by a stranger you have to live with a frightening memory. When you are raped by your husband, you have to live with your rapist,”.
Marital rape is defined as the act of sexual intercourse with one’s spouse without the spouse’s consent. The lack of consent is the essential element and need not involve physical violence. Marital rape is considered a form of domestic violence and sexual abuse. Although, historically, sexual intercourse within marriage was regarded as a right of spouses, engaging in the act without the spouse’s consent is now widely classified as rape by many societies around the world, repudiated by international conventions, and increasingly criminalized.
Going back in the History, a girl or a woman has always been considered as a property of his father or his husband rather than an independent human being having its existence. Taking this ideology into consideration, historically, rape or sexual assault to a woman had been seen as a crime committed upon a property of a man be it her father or her husband and not a crime against the victim itself. ‘Matthew Hale’, an influential English barrister, judge and jurist in the history of Britain in the 16th Century, in his manuscripts which were later published in 1736, had written “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife had given up herself in this kind unto her husband, which she cannot retract”. Throughout the 19th century, English Law or Common Law of England followed Legal Doctrine ‘Coverture’ which simply meant that a Woman’s legal rights and obligations were absorbed by those of her husband upon her marriage. The Doctrine of ‘Coverture’ was described in William Blackstone’s Commentaries on the Laws of England as “By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything.” Thus, implying that once married, the woman losses all her legal rights or ironically saying she losses her very being and existence, she was nothing more than a property owned by her husband and the husband could no longer be charged with raping one’s spouse as it would mean to have raped oneself.
Legislation in Bangladesh is mostly based on the English Common Law and formulated under British Rule, is no exception to this sick ideology of Woman being a property of his father or his husband and which is evident from many provisions in our Legislation, including Section 375 of the Panel Code, 1860, concerning rights and obligations of the Women or concerning crime committed against or upon a Woman.
Though, rectifying the grave mistake done for centuries, many of the countries including Canada, South Africa and Australia which criminalized Marital Rape in the year 1983, 1993 and 1976 respectively, have criminalized Marital Rape in the 20th Century as well as at this early stage of 21st Century. However, still there are many countries, including Bangladesh ,who is yet to consider Marital Rape as a crime against the married Woman. Bangladesh is yet to accept the fact that Sexuality or virginity of a married Woman is not the property of her Husband which can be invaded anytime and without considering the will and consent of the Spouse.
Far from criminalising it,law in fact unfortunately explicitly exempts marital rape from the offence of rape itself.This said exemption can be found in Section 375 of the Penal Code, which is the chief provision for the definition of rape and lists five scenarios which would amount to rape.The list is followed by a categorical exemption for marital rape from the offence of rape, which explicitly states that “sexual intercourse by a man with his own wife, the wife not being under thirteen years of age, is not rape.”This provision is beyond Marriage Restraint 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 makes it clear that, a girl under eighteen years of age is not able to get married as it criminate the conduct as punishable offence thus making it impossible for any girl above thirteen to seek legal remedies if she is raped by her husband.This exemption of Section 375 violates the Constitutional provision of Equality before law as it divides woman into two categories in matters of representing their case in front of law and getting protection against rape.
In last 20 years, our legislative body enacted some special laws to safeguard the woman and child against violence. Such as 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.
Due to lack of proper knowledge, absence of legal mechanism this issue though being heinous,cruel is still in it’s medieval stage.But this must change and no must always mean no.
Gujrat HC said “Marital rape is not a husband’s privilege but a violent act and an injustice that must be criminalised”. By criminalising marital rape we can actually remove medieval gist from our mindset that the wife does not really become a property of the husband after entering into marriage contract so that the husband gets into sexual intercourse whenever he demands. It will diminish the patriarchal tendency of the society also will remove the sexist mindset from us.We have made many positive changes towards safety and protection of woman in our society by amending laws or enacting new one.Despite having amendments, law commissions and new legislations, one of the most humiliating and debilitating acts is not an offence in Bangladesh.
Though Criminalizing Marital Rape may work as a double edged sword as establishing presence of Consent by married Woman would purely depend upon the intellectuality of the particular judge and such law might be used in a wrong way, like many other provisions, by any Women trying to harass her husband on falsified grounds, even then, the number of such incident will always be much lesser than the number of married Women would be benefitted from this.
After considering all the issues,existing law and world situation it is indeed high time for us to enact new law and Criminalise rape within marital bond.
Mahmodur Rahman: a student of Department of law, Jagannath University.
