Writ filed seeking justice in marital rape

A writ has been filed with the High Court Division challenging the legality of the exception clause to Section 375 of the Penal Code 1860 depriving married women and girls from seeking legal action against their husbands for forced sexual intercourse.

Meanwhile, a legal notice has been sent to the government seeking amendment of its various laws and inclusion of provisions with a view to stopping marital rape.

Both the legal processes over the same issue appeared at a time when a 14-year-old schoolgirl died on October 25 from excessive bleeding from her genitals within five weeks of her marriage in Tangail.

Barrister Sara Hossain accompanied by Barrister Sharmin Akter filed the writ petition on Sunday on behalf of four human rights organizations.

They are Bangladesh Legal Aid and Services Trust (Blast), Brac, Naripokkho, and Manusher Jonno Foundation.

Barrister Sharmin told Dhaka Tribune that the High Court bench of Justice Md Mojibur Rahman Miah and Justice Mohi Uddin might hear the matter on Monday.

The writ argued that the exception to Section 375, Section 376 of the penal code and the explanation to Section 9 (1) of the Nari o Shishu Nirjaton Domon Ain 2000 (Women and Children Repression Prevention Act, 2000) to the extent that they provide an exception to the offence of rape, in the case of married women and girls are discriminatory on the basis of gender, and in particular of marital status, and violate the rights of married women and girls as guaranteed under Articles 27, 28, 31, 32, and 35 (5) of the constitution.

The petitioner sought rule and direction to repeal the exception to Section 375 and amend relevant part of Section 376 of the penal code and Section 9 (1) of the Women and Children Repression Prevention Act.

What happened recently?

It was brought to BLAST’s notice through different news reports that a 14-year-old girl from Tangail died due to excessive genital bleeding after being admitted at Dhaka Medical College Hospital (DMCH).

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The reports further stated that on September 20, she was married to a 34-year-old man, an expatriate working in the UAE, and that she had been bleeding from the first night of her marriage.

Nevertheless, the husband reportedly continued to have intercourse with her, disregarding her injuries, while her in-laws sought treatment for her from a village doctor (Kabiraj), and failed to provide her with proper medical treatment until October 22, by which time it was already too late. The girl eventually died on October 25 at DMCH.

Legal notice sent to govt

Meanwhile, a legal notice has been served to the government to amend the Women and Children Repression Prevention Act, 2000, Penal Code 1860, and all other relevant laws for incorporating the provisions over marital rape and publish official gazette notification in this regard within seven days.

Supreme Court lawyer Md Zahid Chowdhury Johnny sent the legal notice on the same day on behalf of Wahida Afsana, senior newsroom editor at Ekattor TV. 

Secretaries to the Ministry of Law, Justice and Parliamentary Affairs, Ministry of Home Affairs, Ministry of Women and Children Affairs, director general of Department of Women Affairs, chairman of National Human Rights Commission Bangladesh, chairman of Law Commission Bangladesh, and director general of Department of Social Services have been made respondents to the legal notice.

According to the notice, Section 375 of the Penal Code 1860, defines rape as: "A man is said to commit 'rape' who except in the case hereinafter expected, has sexual intercourse with a women under circumstances falling under any of the five following descriptions: Against her will, without her consent, with her consent but when her consent has been obtained by putting her in fear of death, or of hurt, with her consent but when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes her to be lawfully married, with or without her consent when she is under fourteen years of age."

In its explanation, the section said penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. In its exception, the section said sexual intercourse by a man with his wife (not being under thirteen years of age) is not rape.

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The notice said, unfortunately, nowhere it is found that any act of rape in the married life of a couple is coined as "marital rape" in Bangladesh. But in reality, every now and then, news regarding the brutality of marital rape are published in the daily newspapers and broadcast in television channels.

Marital rape has increasingly been recognized by about 150 countries as of 2019, it said.

In 1993, the legal notice also said, the office of the United Nations High Commissioner for Human Rights declared marital rape as a human rights violation, but Bangladeshi law makes it legally impossible for a man to be held accountable for raping his wife. 

It said the present situation is very dangerous, because nowadays many married women are not even conscious of the fact that they are being raped. Society has taught them that they have no choice when it comes to their husbands.

A nationwide study has found 63% men approve resorting to physically assaulting their partner if they withhold sex.

According to Manusher Jonno Foundation, at least 4,249 women and 456 children were subjected to domestic violence including marital rape in 27 out of 64 districts of Bangladesh in April, with 1,672 women and 424 children facing violence for the first time in their lives.