Criminalising Marital Rape In Pakistan
Usman Khan discusses the legal loopholes that remain in Pakistani legislation when it comes to protecting married women – even after efforts to amend the definition of marital rape in the Penal Code
Marital rape is a taboo topic in most societies. Many in both the West and the East have trouble comprehending martial rape – much less the concept of legislating against it. Conservatives, especially in our part of the world, believe that any attempt to legislate against marital rape will only weaken the very concept of marriage even further and would lead to the degradation of social mores. Such thinking is commonly found in Pakistan, where many believe that the words “marital rape” are either a fallacy or simply an impossible concept originating from Western liberals, meant to shatter the marital bonds in Pakistan.
Marital rape is defined as the forceful act of consummation by the husband with his wife without her explicit approval. Unfortunately, Pakistan is home to no law that outright explicitly criminalizes marital rape and penalizes it.
The Pakistan Penal Code, in section 375, provides a comprehensive definition of rape:
Rape:- A man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions,
(i) against her will.
(ii) without her consent
(iii) with her consent, when the consent has been obtained by putting her in fear of death or of hurt,
(iv) with her consent, when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married; or
(v) With or without her consent when she is under sixteen years of age.
Before 2006 the definition included another part that specified that it refers only to the woman “who is not his wife”. This odious qualifier was removed with the passing of the “Women’s Protection Act 2006”. In other words, before 2006, it stated “A man is said to commit rape who has sexual intercourse with a woman who is not his wife” which means that essentially, the law did not see marital rape as an offense before 2006.
But this begs the question: is marital rape an offense under the Penal Code’s definition today? That issue is, unfortunately, ambiguous. The removal of the phrase “who is not his wife” has indeed brought marital rape into the equation. And yet not even one case has reached the floor of High Court or Supreme Court where a proper interpretation of the law can take place. The ambiguity has produced a loophole that is abused by local police, families and even the lower courts. The courts refuse to convict, citing the lack of a proper and detailed case. Even the famous Multan case a year ago, being referred to in the media as a case of marital rape, was not heard under section 375 but under 377 which covers “unnatural offenses of a carnal nature” – be they against women or even animals.
This improper legislative framework has two negative effects.
First that Pakistani society fails to get educated upon the subject. Only through proper legislation and strict enforcement of it have we been able to provide justice to the unfortunate wives whose husbands contract a second or third marriage without their permission. This would also be the case with marital rape.
Secondly, the lack of legislation emboldens the thought that the man must impose himself upon his wife – lest she get empowered enough to stand on equal ground. Women are already told that if they do not express total subservience to the sexual desires of the husband, then angels will curse them all night etc. Thus their own desire (or lack thereof) is irrelevant.
The work of activists and NGOs must be appreciated in pointing out all of the above. But now the lawmakers must do their part and enact proper legislation no matter what hurdles might come to pass. It may not be easy. The neighbourhood of Pakistan is also not encouraging. Not a single one amongst our neighbours has any law to penalize marital rape. There is not even ambiguity in their cases. China, Iran and Afghanistan do not recognize it in anyway. India remains on the same boat with no criminalization of marital rape – especially under the current BJP government, which has sought to address the topic with the usual conservative refrain that stopping marital rape will “destroy the institution of marriage”. Section 375 in the Indian Penal Code contains exception 2 which states that the act of sexual intercourse shall not be considered rape when done by man with his own wife and the wife is not under age 15.
In Pakistan, religious conservatives often claim that criminalization of marital rape is against the teachings of Islam. Yet many Muslim countries have not found the institution of marriage threatened by treating marital rape as a crime. These Muslim-majority countries include Azerbaijan. Bosnia and Herzegovina, Indonesia, Kazakhstan, Kyrgyzstan, Mauritania (which is an “Islamic Republic”, incidentally), Qatar, Somalia, Sudan, Tunisia, Turkmenistan and Turkey. All of these are Muslim countries with large populations of Muslims and a rich Islamicate history. All of them consider violation of the wife by her husband as an act worthy of being a criminal offense. In other words, all of them have laws against marital rape.
Pakistan, in 2006, took the very ambiguous and yet positive step towards criminalizing marital rape as described earlier. This positive step must be built upon through proper legislation which explicitly defines marital rape and its punishment so that there might remain no loopholes in protecting the rights of married Pakistani women. Only then can we claim that Pakistan has joined the ranks of progressive Muslim-majority societies on this issue.
The writer is a lawyer and an animal rights activist working through his association B.R.U Law Associates and the NGO Pro-Nature. He can be reached via [email protected]
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