Marital Rape: As Heinous As A War Crime

Marital Rape: As Heinous As A War Crime

The term “marital rape” in itself is quite puzzling and is a concept many do not understand or, as I would like to say, do not want to acknowledge and recognize. The question therefore is, how can a husband rape his own wife? The answer is simple; consent is what we are looking for.

A survey conducted in 2003 in Islamabad and Rawalpindi evaluated that 46.9% women reported non-consensual sex, which is a notable percentage and shows that while there is no law on marital rape (or so it seems), it does not mean that it does not happen. Marital rape is just as horrendous and big a crime as rape outside of marriage. It ridicules the honor and self-respect of a woman, as she is merely looked upon as property used in any way deemed fit by her husband. However the question here remains, are there any laws in Pakistan addressing marital rape?

Apparently exchanging vows and saying “qabool hai (I do)”  is seen as an automatic licence for husbands to physically abuse their wives because they believe in the ideology, “biwi ho meri, mera haq hai tum pe (since you are my wife, I have a right over you)”. So is this ideology correct? Morally speaking, it’s absolutely not. Legally the situation is that prior to 1979, instances of marital rape were under the realm of Family Law instead of Criminal Law. Justice Shazado Sheikh, a former judge of the Federal Shariat Court of Pakistan, however, disagrees with this analysis, stating that Ss.375 and 376 of the Pakistan Penal Code (PPC) and provisions under the Protection of Women (Criminal Laws and Amendments Act) 2006 do in fact criminalize marital rape. This position has been supported by another jurist who specifies that the legislature’s removal of valid marriage as an exception to rape means that marital rape has been criminalized, despite the absence of particular legislation.

However, the astonishing fact is that there are no recorded cases of marital rape being prosecuted against legally married couples in Pakistan. S.375 of the PPC states the following:

“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.”

S.376, on the other hand, talks about the punishment that is to be given and states the following:

“(1) Whoever commits rape shall be punished with death or imprisonment of either description for a term which shall not be less than ten years or more than twenty-five years and shall also be liable to fine.

(2) When rape is committed by two or more persons in furtherance of common intention of all, each of such persons shall be punished with death or imprisonment for life.”

Therefore, materially speaking, it is implicitly recognized, however, no woman in our society has got the encouragement needed to report such a heinous crime. This is because many are not aware of marital rape actually being an offence, while others sweep this under the general perception of nikah being a licence for sex any time.

Dr. Yasmeen Rashid has said that in her 30-year career as a gynecologist she has never seen an official report relating to marital rape even though, after delivery cases, the most frequent and repeated cases she has attended to have been associated with women being sexually assaulted by their spouses.[i]

Therefore, I feel that the gravity of marital rape has been downplayed by our society, making it acceptable for the husband to treat his wife in any way he wishes to. I believe that it is not the wife’s fault that she does not feel comfortable talking about such situations because even if she does, she may not receive support from her family and they may think she is making petty issues out of a normal set of circumstances.

Consequently, it may be said that the first step towards the success of marital rape cases being reported is to help spread awareness regarding this topic which is considered to be a taboo in our society. Also, with the help of awareness, forced pregnancies will be controlled and the resulting population boom with which we are being affected will significantly reduce. The Government of Pakistan has recently taken a lot of pro-women measures in the sense that there has been a lot of legislation on various kinds of violence and brutality against women. However, there is still much more to be done in reality before even starting to alter the way that these cases are treated and perceived.

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References:

[i] https://tribune.com.pk/story/129787/silence-on-spousal-sexual-assault-jarring-doctors/

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.

Gulmeena Roghani

The writer is an LLB student at LGS and has served as an intern at Courting The Law.



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