“Rape” is seemingly common etymology in our society. Whenever we hear the word “rape”, we imagine a brute lurking in darkness or in some hushed places for jumping over women to fulfill his sexual desire. Sometimes, a question peeps in our mind that, can a woman become the victim of rape by her legal husband apart from an outsider or stranger?
Let us enter into the legal arena. Rape has been defined in section 375 of Penal Code, 1860. The provision described rape as a forceful sexual intercourse with a woman against her will or without free consent or by deceive except by her own husband if she is not under age of fourteen. Punishment of this offence falls under section 9 of Nari O Shishu Nirjatan Daman Ain 2000 (Amendment- 2003). Marital rape means Sexual intercourse which is committed by husband forcefully without free consent of wife. The idea of marital rape is still a taboo in our society. Most of the people have no transparent perception about the term. As the word rape depends upon consent, it should be applicable to both husband and an outsider. Today forceful intercourse has become a torture weapon. In our law, husband can be accused of rape if wife’s age is less than 14. But the problem lies in only one situation- indemnity of husband from all sexual intercourse.
In 2013, United Nations (UN) surveyed on 10,000 plus adult male from Bangladesh, Srilanka, china and Indonesia about their sexual behavior. The report states that 24% of husbands forcefully committed sex with their wives. 38% of them committed forceful sex to punish their wives! Apart, Bangladesh Bureau of statistics and UN population fund surveyed on violence against women in 2011. Among 12000 female participants, 87% married women admitted that they were sexually tortured regularly by their husbands. 2011’s UN report states, only 52 countries had amended their legislation to explicitly make marital rape a criminal offence. Unfortunately, Bangladesh does not belong to the list.
Bangladesh Government enacted an Act called Domestic Violence (Prevention and Protection) Act in 2010. In section 3(c) of that Act, there is a provision of “sexual abuse”. But there is no specific definition, elements of crime and nature of sexual abuse. If any wife is injured by her husband from sexual abuse, she can’t file any case against husband for hurt or grievous hurt under The Penal Code -1860 because of ‘indemnity’. When the marriage gets validity by free consent then how sexual intercourses get validity without free consent? If we feel hesitation to name this torture as “rape”, then we can replace the term. Nevertheless, the activity must be called crime and must include severe punishment provisions.
Our prophet Mohammad PBUH mentions that, “never intercourse with your wives until they come into a tranquil mood.” Scholar Imam Gajjali says, “Never intercourse with your wives like a beast, first make them ready psychologically.” So, evidentially violent sexual conduct is not permissible in the eye of Islam.
The life and rights of wife are rolling on the ground for want of minimum legal and social protection. Having no provisions to protect married women from this hellish punishment is the clear violation of fundamental human rights. Article 31 of BD Constitution ensures that no action detrimental to the life, liberty, body, reputation, property shall be taken except in accordance with law. As no strict legal action is taken to prevent this brutal crime, government is indirectly encouraging this inhumane behavior which is detrimental and clear violation of the Article’s spirit. Where is the protection of right to life and personal liberty under Article 32? Do we count women, especially the married women as a human? If yes, then where are their fundamental rights as a human, as a citizen? After all, this neglected human right must be re-considered and concept of marital rape should be re-count.
S. M. Tasmirul Islam
He is an Associate Lawyer, Bhuiyan & Mir Associates.
Sub Editor, Law Page, Daily Vorer Pata