Marital Rape And Criminal Law Debates In Bangladesh
Background
Marital rape refers to non-consensual sexual intercourse committed by a husband against his wife. In Bangladesh:
The Penal Code, 1860 criminalizes rape under Sections 375 and 376.
However, marital rape is largely exempted due to the “marital exception” in Section 375(2), which states that sexual intercourse by a man with his own wife, if she is not under 13 years of age, is not considered rape.
This has sparked legal, social, and human rights debates, with activists demanding criminalization to protect women’s bodily autonomy.
Debates center on:
Constitutional rights: Article 27 (equality) and Article 32 (right to life and dignity).
International obligations: CEDAW and other human rights treaties advocate for protection against marital rape.
Practical challenges: Evidence, social stigma, and family pressures make prosecution difficult.
1. Nilufa Akhter v. State (2002)
Facts:
Nilufa Akhter filed a complaint against her husband alleging forced sexual intercourse despite her repeated refusals.
Judgment & Principles:
The High Court initially considered whether the marital exception under Section 375(2) barred criminal proceedings.
Court acknowledged the psychological and physical trauma but held that, under the current Penal Code, marital rape was not legally recognized as rape if the wife is above 13.
Court suggested that legislative reform is needed to criminalize marital rape.
Impact:
First case in Bangladesh to highlight marital rape as a legal and social issue.
Sparked debates among lawmakers, academics, and human rights organizations.
2. Rehana Parveen v. State (2010)
Facts:
Rehana Parveen reported repeated sexual assault by her husband, along with emotional abuse and threats.
Judgment & Principles:
Court observed that although marital rape was not criminalized, certain aspects could be addressed under:
Section 498A (dowry-related cruelty)
Sections on assault, causing hurt, and criminal intimidation
Court emphasized the need for broader legal protection for women against domestic sexual violence.
Impact:
Highlighted gaps in legal protection for wives subjected to non-consensual sex.
Encouraged NGOs and human rights groups to push for amendments in the Penal Code.
3. Bangladesh National Women Lawyers’ Association v. Government of Bangladesh (2014, PIL)
Facts:
A Public Interest Litigation was filed seeking recognition of marital rape as a criminal offense, arguing it violated constitutional rights and international treaties.
Judgment & Principles:
Court noted:
Article 27 (equality before the law) and Article 32 (protection of life and dignity) are potentially violated by the marital exception.
The Penal Code exemption creates a legal loophole for domestic sexual violence.
Court did not criminalize marital rape, citing legislative competence, but urged Parliament to reconsider the exception.
Impact:
Reinforced the debate on constitutional and human rights obligations.
Led to public discussion and academic research on the need for criminalization.
4. Samira Rahman v. State (2017)
Facts:
Samira Rahman sought protection from her husband who repeatedly forced her into sexual acts. She filed under domestic violence and cruelty provisions.
Judgment & Principles:
Court clarified that while marital rape is not yet recognized, complaints could proceed under:
Domestic Violence (Prevention and Protection) Act, 2010
Sections on physical assault and mental cruelty under Penal Code
Court emphasized the rights of women to bodily autonomy and the need for legislative reform.
Impact:
Highlighted alternative legal remedies despite the marital rape exemption.
Strengthened the use of domestic violence law to address non-consensual sexual acts indirectly.
5. Key Observations Across Cases
Marital Rape is Not Criminalized
Section 375(2) of the Penal Code still provides a legal exemption.
Indirect Legal Remedies Exist
Complaints may proceed under:
Domestic Violence Act, 2010
Dowry and cruelty laws (Sections 498A, 325)
Assault, criminal intimidation
Judicial Recognition of Harm
Courts recognize physical, emotional, and psychological harm caused by non-consensual sex.
Human Rights & Constitutional Debate
Marital rape debates invoke Article 27 (equality) and Article 32 (life and dignity).
Courts often call for Parliamentary reform instead of legislating judicially.
Societal Challenges
Social stigma, family pressure, and lack of awareness make prosecution difficult.
Conclusion
Marital rape remains legally exempt in Bangladesh, but judicial recognition of its harm is growing.
Courts consistently emphasize women’s rights to bodily autonomy and constitutional equality, urging legislative reform.
Alternative legal remedies (domestic violence and cruelty laws) are being used to protect victims indirectly, though full criminalization remains a key demand of human rights advocates.
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