While most of the countries have criminalised nonconsensual marital sex, a pervasive act of human rights violation, Bangladesh is one of the 36 countries to refuse to do that.
Studies have found that more than 70 percent of married women have encountered violence by their intimate partners and half of them admit to having been physically assaulted by their husbands.
A nationwide study conducted by Brac James P Grant School of Public Health, revealed that 63 percent of men agreed that it is okay to hit their wives if they deny having sex with their husbands.
The data points to the dreadful scenario of married women being subjected to torture and indicates that incidents of marital rape are very frequent in the country. However, that is not even the worst part.
The worst part is that the state refuses to recognise marital rape as a criminal offense because of the bizarre presumption that a wife delivers perpetual consent to have intercourse with her husband after entering into marital relations.
Nevertheless, the High Court recently, issued a rule nisi asking the government why laws that allow marital rape of women and girls aged above 13 should not be declared void and discriminatory.
The definition of rape under Section 375 of the Penal Code does not include marital rape otherwise envisaged within this section. Section 375 exempts unwilling and forced sexual intercourse between a husband and a wife over 13 years of age from the definition of "rape" and thus immunises husbands who commit such an act from prosecution.
The roots of such discrimination can be traced back to the colonial period when section 375 was drafted in line with Victorian patriarchal norms, then prevailing in British India. The Victorian principles in 1860 (during the enactment of Indian Penal Code) did not hold men and women in equal footing.
It thus produced the belief amongst lawmakers that a woman forgoes the right to refuse to have sexual intercourse with her husband forever by entering into the marital contract. The husband acquires the marital license to rape his wife at any time. The laws were governed by the doctrine of coverture whereby a woman's identity is subsumed into man's identity upon marriage. Hence, their existence became more like an object rather than an independent human being.
In the 21st century, this interpretation does not make any sense because it undermines the agency of women and disregards the individual liberty and right to self-determination of women.
Today, even Britain has reformed its laws that protect women from all sorts of violence including marital rape and unlike us it has codified and enacted the Sexual Offences Act, 2003 that deals with both substantive and procedural rules for dealing with these offenses.
However, our country chooses to hold on to colonial norms while silently promoting the deep rooted misogyny and facilitating the patriarchal attitude.
Needless to say, leaving such a legalised evil unleashed in our country cannot fulfill its constitutional commitment to ensure equality between men and women and upheld rule of law. Considering the same act as a crime while committed against an unmarried girl but not so while against a married woman above 13 years old cannot be reasonable.
This provision is against the right to equal protection of law under article 27 of the Constitution of Bangladesh. Absence of the definition of consent under section 375 creates ambiguity and vagueness that deprives citizens of their rights to fair process, consequently violating due process under article 31.
In case of Suchita Srivastava v. Chandigarh Administration (2009), the Supreme Court of India stated that the right to make choices related to sexual activity is within the scope of rights to personal liberty, privacy, dignity, and bodily integrity. Moreover, marriage does not simply take away the aforementioned human rights from a woman.
Hence, any forced or nonconsensual sexual activity with a woman whether married (major or minor) or unmarried is violative of article 32 and article 35(5) of the constitution. The Gujrat High Court in Nimeshbhai Bharatbhai Desai v. State of Gujarat (2018) case prioritised woman's free consent for sexual intercourse in marital relationships and emphasised that the idea of 'implied consent' in marital relationship be abandoned.
A legal provision that exempts the culprits of a grave crime based on the sole premise of marital consent, violates a series of fundamental human rights of women and threatens the existence of their agency. It also carries the doctrine of classification "to a point where instead of being a useful servant it becomes a dangerous master", that particular legal provision can in no way be said to be constitutional.
Lastly, it is unacceptable that physical violence against a married woman is punishable but sexual violence is not. The widespread assumption that rape is a crime against the honour of a woman and not against her physical integrity makes it harder to hold the husband liable; one who is thought to be in charge of his wife's honor.
The private nature of the crime and the social stigma and stereotype surrounding it, make these types of crimes go vastly underreported. Furthermore, the apprehension that some may misuse the law if marital rape is criminalised is a valid concern.
Likewise, there are false cases of murder but that does not stop murder from being criminalised. It is time for the jurisprudence of Bangladesh to understand the inhuman nature of this provision and declare it unlawful and strike it down.
The writers are students of law at the University of Chattogram
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