Under the current law forced sexual intercourse by a man with his own wife, if the wife is not under 13 years of age, is not rape
Nurnahar told her family she was crippled with pain when her 34-year-old husband consummated their marriage. However, it continued for a month as her husband had no regard for his child bride’s pain and suffering.
The 14-year-old died from excessive bleeding from her genitals within about a month of her marriage in Tangail as the husband reportedly continued sexual intercourse.
There are many girls like Nurnahar who need to be protected from marital rape but the existing law is not really useful. Human rights activists think the societal norm is also too rigid to accept that a man cannot force sex on his wife as they see marriage as a license to have sexual intercourse.
On November 1, a writ was filed before the High Court Division of the Supreme Court of Bangladesh challenging the legality of marital rape of women and girls aged above 13 in the rape legislation.
Human rights activists think it is a step forward toward protecting women from marital rape.
Bangladesh Legal Aid and Services Trust (BLAST), Brac, Naripokkho, and Manusher Jonno Foundation, four member organizations of the Rape Law Reform Coalition, filed the writ petition.
Laws of the country
According to the marital rape exception clause in section 375 of the Penal Code 1860 sexual intercourse by a man with his own wife, if the wife is not under 13 years of age, is not rape. This exception is also upheld in related provisions on rape i.e. Section 376 of the Code and the explanation to Section 9(1) of the Nari o Shishu Nirjaton Domon Ain 2000.
During October this year, Dhaka Tribune conducted a survey on sexual violence against women and found 63.8% of the participants said rapes are acceptable in a marriage.
Taqbir Huda, research specialist at BLAST, told Dhaka Tribune: “Society at large refuses to accept that marital rape exists, since we are trapped in the archaic notion that a wife, upon signing the marriage contract, perpetually and irrevocably consents to sexual intercourse with her husband whenever he so demands.”
Furthermore, victims of marital rape never report their crime, since the marital rape of women and girls above the age of 13 is totally excluded from the offence of rape in this country.
The only reason we came to know about Nurnahar’s horrific case is because she died as a result of the marital rape, said Taqbir.
In order to convince the court that marital rape exists, the member organizations of the Rape Law Reform Coalition had to cite the National Violence Against Women Survey 2015, which found that 27.3% of women who ever got married reported facing sexual violence from their husbands (including forceful sexual intercourse) alongside news reports about Nurnahar’s case.
Taqbir told Dhaka Tribune: “A complete prohibition on marital rape is long overdue, and we hope as a result of this writ, the government will rise to the occasion and repeal the marital rape exception clause, which is colonial and entirely unconstitutional.”
Contracting or facilitating a child marriage is a criminal offence in Bangladesh and those involved will be punished, but, the validity of the marriage is not affected. Therefore, a minor wife above the age of 13 cannot file a rape case against her husband.
The Penal Code 1860 was enacted by British rule which exempted marital rape, but, England itself outlawed marital rape in 1991.
Pakistan, the country which inherited the same penal code, does not have the marital exemption clause today.
According to the UN Women’s 2011 report, 52 countries had amended their legislation to explicitly establish marital rape as a criminal offence.
The General Secretary of Bangladesh Mahila Parishad Maleka Banu told Dhaka Tribune if the government could enact a law against marital rape, all the victims regardless of their age and gender could be protected by it.
“It is hardwired in many men’s mindset that a wife’s consent does not matter when it comes to sexual intercourse. She could be sick, tired or simply not in a mood to have sex. It is her choice to say no to her husband,” Maleka told Dhaka Tribune. It is high time to internalize the idea that a woman's consent is important.
Maleka thinks marital rape is a manifestation of the way boys are raised in this society.
“Young boys grow up seeing their sister and mother not being vocal about their rights. In many cases, he sees his sister is married off by her family without her consent,” she said, adding that men in this society never really had any idea why a wife should have the right to give her consent to get into any physical relationship.
Women rights activists like Sigma Huda were fighting against consent violation of wives within marriage since the 80s and received a lot of flak back then. She was called names and castigated by many people in the 80s when she raised this issue on international platforms.
“Sometimes it feels like we are running backward when it comes to women’s rights. However, the writ is indeed a first step towards enacting a law against marital rape,” she told Dhaka Tribune.
A law against marital rape would not only protect young girls who are being married off before turning 18, it would also protect all those women who are living with their rapists for years and have nobody to turn to, she said.