Marital Rape: Implications and legal standpoint in Pakistan

Despite the implementation of laws concerning rape, there is very little discourse on marital rape, which is most often left “undiscussed” and treated as an unwarranted social taboo.

Research on the subject shows that “intimate partner sexual violence” is considered to be less damaging, physically and emotionally, in comparison to sexual abuse by a stranger.

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Findings show that there is a higher plausibility of recurrence in marital rape than in stranger rape, as the victim is married to the perpetrator. This also brings into question the ability of the wife to trust her partner, given that most victims prefer to remain silent through the abuse. Based on statistics, nearly 119 countries have passed legislation related to domestic violence with 125 of them implementing laws on sexual harassment; however, only about 52 countries have laws concerning marital rape.

Recently, a Multan-based Pakistani woman filed a case against her husband for “unwanted sexual advances” making history as there are no records of similar cases before 2018. This is because most women who have been victimized by their spouses choose to remain silent. Especially in cases where the women come from a background of lower education about sex and consent, thereby, it is easier for them to accept the abuse as something that may be normal.

Nonetheless, rape of any nature can have a lasting effect on the victim.

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On an individual level, it can result in feelings of entrapment, health and social consequences pertaining to reproductive, gynecological, and psychological problems, and inability to work or care for themselves and their children (if any), respectively. According to the Protection of Women Act (Criminal Laws Amendment), 2006, rape has been defined in Sections 299 and 375 of the Pakistan Penal Code (PPC) yet the punishment is awarded only in cases where the victims die as a result of the abuse. Section 375 clearly states, “A man is said to commit rape who has sexual intercourse with a woman without her consent and there is penetration”.

Pakistan remains one of 36 countries that have yet to explicitly criminalize marital rape, others including Bangladesh, Afghanistan, and India also need to criminalize the matter. Although the latter in a recent court ruling proclaimed, “Rape is a rape, be it performed by a man, ‘the husband’ on the woman, ‘the wife’”. The Karnataka court reportedly refused to reject such a case filed by the wife against her husband.

However, in Pakistan, the legal situation is still relatively unclear. In 1979, Pakistani law termed rape to be “forced sex outside of marriage” but later changed it to be “sex without a woman’s consent” in 2006. Although this definition makes marital rape potentially punishable, there are no specific legal grounds to prove it, as the penal code continues to remain ambiguous.

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High Court lawyer, Sara Malkani, believes that although there are few and far between cases, they usually never go to trial.

Another instance of reported marital rape was, Karachi-based Shireen Ferozepurwalla, who sought divorce on grounds of “domestic violence”. She said that her former husband used “religion” to coerce her into intimacy with promises of heaven if she complied, and threats of eternal damnation in the likelihood of her refusal to do so. The stance is also echoed by an Islamic cleric, Haroon Ghazi, who believes that “signing the marriage covenant in and of itself established consent”. Ghazi has however stressed that battering one’s wife in order to engage in sexual activity is sinful.

Largely, Islamic scholars and clerics are known to either not condemn the act or advocate that there is nothing wrong with the husband requiring marital sex, whenever or wherever.

Meanwhile, former chairperson Human Rights Commission of Pakistan, Zohra Yusuf is of the opinion that women themselves also believe husbands are “entitled to demand sex whenever they desire”. Yusuf has argued that the sensitization and reaction of the police and relevant authorities are discouraging.

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According to a study conducted as early as 2002, seven out of approximately 216 women confirmed that they didn’t endure any form of domestic violence. However, others reported that they had been shouted at, threatened, slapped, pushed, kicked, and even assaulted with a gun or knife. Furthermore, ninety-eight out of the 216 women also claimed that they had experienced non-consensual sex.

Although women are protected by fundamental rights under international law, as well as the Constitution of Pakistan Article 25 which clearly states that there will be no discrimination on the basis of gender, women are impaired by marital rape, as it violates personal integrity and dignity of the women.

Given the situation, there are a few actions authorities can take to tackle the problem of marital rape. For one, the government can raise awareness and implement significant policies to combat the issue. Organizing campaigns and providing immediate and long-term care to the victims is another. Special training should be given to the first respondents to ensure that women are given the proper care and information upon coming forward with complaints so that they can accordingly understand that they are being abused. Furthermore, respondents should be given training to properly interact with victims.  

While allocating funds for this purpose can be financially taxing for the government, it is possible to generate them by mobilizing public support through political leaders, religious scholars, etc.

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Moreover, centers can be established to provide assistance and care to rape survivors including helplines where women can register complaints or seek immediate aid. But most important of all, victims should be desensitized with help of the Ministry of Human Rights and National Commission on Status of Women (NCSW), and even religious groups.

Above all else, men and women both should be educated on the matter. In this regard, television can play a pivotal role in raising awareness pertaining to the causes and consequences of marital rape. Last year, HUM TV’s drama Qissa Meherbano Ka, took the initiative to start a debate on the topic with audiences getting a firsthand look through the eyes of the titular protagonist Meherbano who is forced by her husband.

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