Why is Marital Rape an Unrecognized Crime in India, and Bangladesh?

Marital rape, a distressing violation of consent within a marriage, continues to be a contentious issue in various parts of the world. What’s particularly perplexing is that in countries like India, Pakistan, and Bangladesh, which have made significant strides in various fields, this egregious act remains uncriminalized. This article delves into the complex factors contributing to the absence of laws against marital rape in these nations and explores the profound implications of this legal loopholes and colonial legacy.

1. The Colonial Legacy of Rape Laws

A primary reason for the absence of laws against marital rape in India, Pakistan, and Bangladesh is the historical ambiguity surrounding this concept. The British Colonial Penal Code of 1860 casts a long shadow over the legal systems of these countries. Back then, sexual intercourse within marriage was seen as a husband’s prerogative, rooted in the disturbing belief that a wife was essentially her husband’s property. Early laws equated rape with the theft of a man’s property, entirely overlooking it as a crime against women. Consequently, these laws excluded the possibility of rape within marriage, perpetuating the misconception that a husband could do as he pleased with his spouse.

During the 18th and 19th centuries, societal emphasis on women’s chastity and purity influenced the drafting of the Indian subcontinent Penal Code in 1860. Even as India’s rape laws evolved to recognize rape as a crime against women, the exception for marital rape persisted.

Under Section 375 of the Colonial Penal Code, marital rape is not considered an offense unless the woman is a minor. This legal loophole is a stark reminder of a bygone era when women were viewed as property rather than individuals with rights.

2. Interplay of Religion and Concealed Rape

Religion plays a significant role in perpetuating the absence of laws against marital rape in these countries. In some instances, conservative interpretations of religious texts have been used to justify the notion that a husband possesses an inherent right to sexual access to his wife, irrespective of her consent. This has created a cultural and legal shield behind which marital rape often goes unpunished.

The influence of religious leaders and clerics in these societies has contributed to the continuation of this belief. While many religious scholars argue that consent is a fundamental aspect of sexual relations within marriage, the intersection of religious interpretation and cultural norms has hindered progress in this regard.

3. Bangladesh’s Legal Quandary on Marital Rape

Bangladesh grapples with inconsistencies in its legal framework concerning marital rape. One primary factor is the exemption clause shielding men from being charged with raping their wives if the latter are over thirteen years old. This clause essentially strips married women over thirteen years of age of legal recourse in the event of non-consensual sexual activity by their husbands.

Section 375(2) of the law on statutory rape states that sexual intercourse with a woman “Sexual intercourse by a man with his own wife, the wife not being under thirteen years of age, is not rape.” Furthermore, Section 376 states, “Whoever commits rape shall be punished with imprisonment for life or imprisonment of up to ten years… unless the woman raped is his own wife and is not under twelve years of age.” This raises questions about why a lower age of consent applies to child brides, as marital status should not automatically enhance a girl’s ability to consent to sexual acts.

“A Dhaka Tribune survey conducted in October,2020, found that a shocking 63.8% of participants believed that rape within a marriage is acceptable. This sentiment is fueled by archaic notions that women, upon entering marriage, implicitly consent to sexual intercourse regardless of their wishes.

Taqbir Huda, a research specialist at BLAST, points out that society’s refusal to accept the existence of marital rape stems from traditional beliefs that a wife’s consent is perpetual upon marriage. The tragic case of Nurnahar, whose death resulted from marital rape, brought some attention to the issue. However, it took extensive efforts by organizations like the Rape Law Reform Coalition to persuade the court that marital rape is a real problem, citing statistics and evidence to back their claims..”

Asian Network of A-Spec Queer Activists

4. India’s Troubling Marital Rape Situation

The situation in India is equally troubling, with marital rape remaining outside the scope of criminalization. Historical perceptions of marriage, where women were considered the property of their husbands, are at the root of this issue. Early laws equated rape with the theft of a man’s property, neglecting to see it as a crime against women. This outdated viewpoint extended to marital rape, where a husband was deemed to have unrestricted rights over his wife’s body.

The Numbers Speak

The patriarchal nature of Indian society has long attempted to suppress narratives and incidents of marital rape. However, the statistics speak loudly. According to the NFHS-5 survey, more than 30 percent of women in five out of 22 states and union territories in India have experienced spousal violence, including physical, emotional, and sexual abuse. A 2021 report by the WHO revealed that over a quarter of women aged 15 to 49 years who have been in a relationship have experienced physical or sexual violence from their intimate partner at least once in their lifetime. An older study by the UN Population Fund found that 75 percent of married women in India had experienced marital rape. These numbers have likely increased due to the COVID-19 pandemic and subsequent lockdowns.

It’s crucial to note that marital rape is heavily underreported, with estimates suggesting that less than 1% of cases are reported to the police. Shockingly, data from the Harvard Law Review indicates that one in three men in developing countries like India admitted to raping their wives. These appalling statistics highlight the urgent need for legal reform.

5. Integrating Marital Rape into Pakistan’s Feminist Agenda

Pakistan, a neighboring country with a shared colonial-era penal code, has evolved in its stance on marital rape. Unlike Bangladesh/India, Pakistan has removed the marital exemption clause from its legal framework, signifying progress towards recognizing marital rape as a criminal offense. However, this change in legislation is just one step towards addressing the broader issue of gender-based violence within marriages.

This illustrates that legal reform is possible, but it requires political will and societal recognition of the issue’s importance.

6. Global Progress:

The issue of marital rape isn’t confined to South Asia. Globally, the fight against marital rape has gained momentum. UN Women’s 2011 report highlighted that 52 countries had amended their legislation to explicitly establish marital rape as a criminal offense. This international progress underscores the importance of addressing the issue as a violation of human rights and a step towards achieving gender equality.

In Bangladesh, Taqbir Huda emphasized that a complete prohibition on marital rape is long overdue. He expressed hope that the government would take action to repeal the colonial-era marital rape exception clause, which is not only outdated but also unconstitutional.

Efforts to challenge the marital rape exception clause are underway in India, with the Delhi High Court currently hearing public interest litigations. However, the journey towards criminalizing marital rape faces resistance from those who view it as an attack on the institution of marriage itself.

Conclusion

Marital rape persists in South Asian countries due to a combination of historical legal frameworks, cultural norms, and deeply ingrained perceptions of marriage. The colonial-era Penal Code, with its gender-specific definition of rape and disregard for marital rape, remains a stumbling block. However, as societies evolve and engage in debates about gender equality and human rights, there is hope for change.

The continued recognition of marital rape as an exception in the legal systems of India, Pakistan, and Bangladesh highlights the urgent need for legal reform and cultural change. Efforts must be made to challenge deeply ingrained norms that perpetuate this injustice, ensuring that all women, regardless of their marital status, can live free from the fear of sexual violence and abuse. It is time for these South Asian nations to align their legal frameworks with international standards and protect the rights and dignity of their female citizens.