Marital Rape: A Legalized Evil

There is a tendency among us to regard and think of a stranger when the word ‘rape’ appears before us. We are not habituated with marital rape at post nuptial stage. Even husband doesn’t know that he is raping his wife and wife also has no any idea that she is being raped. Section 375 of the Penal Code enumerates 5 necessary conditions needed to designate rape. If anyone follows any condition then it is regarded that he is committing rape. So, theoretically through interpretation marital rape is possible according to penal code-1860. But one exception has curtailed it away. When a spouse does cohabitation with his partner without taking consent, forcefully, by coercion, verbal threats then it is marital rape. If husband wants to fulfill his natural lust during menstruation course of his wife, it is also marital rape.

Marital rape is against right to life that is enshrined in the Constitution. It is again violation of the dignity of women.

People here in Bangladesh are not conscious about it mostly. Muslim marriage is a contract which is mainly a contract for unlimited cohabitation they regard. Women become their property and husband is permitted to use his property in whatever manner he desires. In Hindu marriage, they meet in the same bone and same flesh after rituals of their marriage. So, a person can’t think to rape ownself!

Illiteracy, lacking of awareness, religious orthodox, poverty, exclusively dependency on the male are the reasons behind marital rape. Women think that men are atrocious, forceful by nature. It is their manly character. They know their consent and will is subject to their husband’s wish. But they don’t take it as rape as they think men have absolute right over their body.

Our society, in actual sense has not developed as what we are talking about. If any female says suddenly that she was raped by her husband, this will be so vague that it will make even all laugh at her which is much more traumatic. There is chance to lose the love and affection of her husband and if she invokes justice surely she will have to let her hope to go again in her laws house. That’s why not charity, it is rape that begins at home.

For these reasons the actual scenerio within the 4 walls can never be known. The exact amount who are becoming victims by their partner can never be counted. Who knows how many women are being raped within 4 walls without their concern and consent. It is the same female body which is raped in publicly and within 4 walls. No difference between these two. They are with the same flesh, same feelings. But one can invoke justice other who is raped within 4 walls can’t. Law is available for one and can’t be found for the other. Still they have to live with such a person who used to rape her each and everyday.

Bangladesh doesn’t recognize the marital rape de jure. But marital rape can be found in the Penal Code by the interpretation of section 375 of it. It says that doing intercourse with wife who not being under thirteen years of age is not rape. Again in subsequent section if the wife is below twelve years then husband shall be punished with imprisonment for two years and fine. There is total inconsistency between these two as age differs. Child Marriage Restraint Act, 1929 clearly expressed in section 4 that a girl can not marry until she is of 18 years which is punishable otherwise. By this section the exception given in 375 and punishment in 376 has lost it’s applicability as statutorily it needs 18 years to be in the wedlock. Again, Nari-O-Shishu Nirjatan Domon Ain, 2000, and Paribarik Shohingshota (Protirodh-O-Shurksha) Ain, 2010 which was enacted no

few years ago has not mandated no direction regarding marital rape.

Almost 100 of the countries across the world outlawed marital rape as crime where our people are without knowledge of it! The Protection of Women Act 2006 in Pakistan repealed anti women rape laws. Exemption clause of section 375 was also deleted. But in Pakistan, people have less knowledge about it and there exists no record to file any such case. In India, it exists de facto not de jure. In a recent judgement of Indian Supreme Court, it said that doing intercourse with wife who is of 15-18 years is a crime. Since it is unavailable in the statute it can’t be applied in the court. England outlawed marital rape in 1991 following the case of R v. R. However, almost all countries of Europe outlawed this crime but many Muslim countries didn’t recognize it in their legal system.

Amending Penal Code in this regard is a demand of time. Section 375, 376  must be amended. A brand new Act can also be enacted with the provision of different rape situations. Signs, initial stages, what to do at the time of facing such kind of situations can be added in the Act. Proper punishment or penalty should be ensured. Speedy and confidential trial facility should be maintained.

No amount of law is sufficient until and unless we aware ourselves. Only enacting law begets nothing. Our rape shield laws are insufficient let alone marital rape. What government can do is that it can enact a particular Act by including all the sphere of rape. Thus the epidemic can be degenerated from our society.

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Md. Shohidul Islam Hero

Md. Shohidul Islam Hero

3rd Year, Department of Law, Univeristy of Chittagong
Md. Shohidul Islam Hero

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