Marital Rape in the Republic of India and the Islamic Republic of Pakistan

By Jagriti Khurana

Marriage and sexual relationships in patriarchal societies such as India and Pakistan always come at the cost of the oppression of the women. Like every patriarchal society, the role of wives in India and Pakistan is always subordinate to their husbands.[i] While analyzing rape statistics all over the world, the western lens mostly neglects the vulnerable sections of the women in countries like India and Pakistan due to the divergent societal roles prescribed to women in these countries.

According to a study by the UN Population Fund, “more than two-thirds of married women in India, between the ages of 15 to 49 have been beaten, raped, or forced to provide sex.”[ii]Similarly, according to a 2009 study of 152 cases, in Pakistan, approximately 43-33 percent of married women endured marital rape.[iii] Marital rape is incredibly common in India and Pakistan and these countries are often left of the global conversation due to the heavy emphasis placed on family and marriage.

Under Section 375 of the Indian Penal Code, all forms of sexual assault involving nonconsensual intercourse with a woman are prosecuted with one exception―unwilling sexual intercourse between a husband and a wife over the age of fifteen (found in Exception 2).[iv] Similarly, in Pakistan, under Section 6 of Hudood Ordinance[v], a man is said to commit rape when he engages in sexual intercourse with a women “against her will; without her consent; with her consent, when the consent has been obtained by putting her in fear of death or of hurt; with her consent, when the man knows he is not married to her . . . with or without her consent when she is under sixteen years of age.”[vi]

This aforementioned ordinance is vague enough to prosecute perpetrators of marital rape, however, marital rape is rarely prosecuted in Pakistan as under Islamic Law, the wedding contract called nikkah “imposes submission on the wife when summoned to the couch and confers on him the power of correction when she is disobedient or rebellious.”[vii] Both India and Pakistan are guided by patriarchy and focus particularly on a husband’s unchecked sexual access to his wife and his right to demand obedience. As a result, radical feminist jurisprudence has critiqued the sexual inequalities present in India and Pakistan.

Background

Pakistan’s Constitution requires all laws of the country to conform to the Quran and the Sunnah school of thought.[viii] Thus, the relationship between a husband and a wife is guided by the Quran as a civil contract which states that, “[m]en are the protectors and maintainers of women . . . [and] the righteous women are devoutly obedient, and guard in [the husband’s] absence.”[ix] In other words, the husband has an obligation to provide financial support to his wife and the wife, in return, has a duty to obey the husband.

The majority view of obedience considers obedience as extending to both social (such as not leaving the house without the husband’s permission)[x] and sexual matters, whereas the minority considers obedience as only extending to sexual matters.[xi] Both the majority and the minority school of thought state that if the wife refuses sexual advances by her husband without a valid justification—such as fasting during Ramadan, health reasons, or menstruation—she breaches her moral and religious duties towards her husband.[xii]

Furthermore, to demand sexual pleasure from his wife, a husband can physically chastise her or beat her.[xiii] A 2003 survey suggests that approximately 47% of married women in two major cities in Pakistan reported non-consensual sex.[xiv] While this suggests that there is a group of women willing to report non-consensual behavior from their husbands, it is still no surprise that although marital rape is a macro concept, it remains largely unknown in Pakistan.

Similarly, India is also one of the 34 countries that do not criminalize marital rape. Dating back to the 1700s, in the British colonial period, the Indian Penal Code was influenced by Victorian norms and English laws. Victorian patriarchal norms stated that men and women were not considered equal, women were not given rights such as the right to own property.[xv]

Furthermore, William Blackstone, an English judge in the 18th century, supported the doctrine of coverture, which regarded women as her husband’s property by contesting that “by marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage . . . ”[xvi]

These norms were still present during the time the Indian Penal Code was drafted, leading to the perception of women being chattel of her husband, thus lacking the ability to file complaints against her husband using her independent legal identity.[xvii] Even though times have changed and now Indian women are given a separate and legal identity from their husbands, married women are still denied protection from rape and sexual harassment by their husbands.

Pakistan’s concept of submission

While marital rape is not a recognized offense in Pakistan, the legal definition of rape was amended in 2006 to include marital rape. Alongside this, the Protection of Women Act was enacted in 2006 as well which opened room for the prosecution of marital rape. However, to this date, no cases of marital rape have been reported in to the police in Pakistan.[xviii]

Radical Feminism sees male domination and a woman’s sexual submission to her husband as a feature of a patriarchal society. As Catharine MacKinnon, a radical feminist legal scholar and activist, states, “[t]he state is male in the feminist sense: the law sees and treats women the way men see and treat women . . . . The state’s formal norms recapitulate the male point of view on the level of design.”[xix] In other words, patriarchal societies such as India and Pakistan reinforce the unequal power dynamics between a husband and a wife, and the law protects this unequal hierarchy.

The aforementioned view is present in Pakistan as the Quran states that, “[y]our women are cultivation for you; so approach your cultivation

whenever you like . . . .”[xx] Since sex is accepted as a coercive male-centric act in Pakistan, rape ends up being a manifestation of the oppression and discrimination women are supposed to face.

Additionally, Prophet Muhammad, the founder of Islam, stated, “[i]f a man calls his wife to his bed and she refuses, and he spends the night angry with her, the angels will curse her until morning.”[xxi] As a result of these religious ideals, married women in Pakistan are denied the right to repudiate from sex as there seems to be a religious obligation placed on them to physically satisfy their husbands.

Legal definition of consent focuses on “a voluntary agreement to another’s proposition.”[xxii]However, in Pakistan marital rape is not about the absence or presence of consent but rather about the very nature of a wife’s consent, since women in this society live under unequal conditions where sex cannot be evaded.

A 2016 study from Iran (a country governed by Islamic law like Pakistan) and a survey from Pakistan’s city of Karachi found that married women in both the study and survey considered unconditional sexual submission toward their husbands as their main religious duty.[xxiii] If this norm, accepted by a majority of women in Pakistan, suggests that if women see sexual submission as a religious duty and are obliged to consent due to this respective duty, how can their consent be voluntary?

Furthermore, Pakistan’s laws have various repercussions for wives who disobey their husbands. These legal repercussions include the following: (1) cutting off of financial support-since a husband’s duty is to provide his wife with financial support in exchange for obedience, he can deny her financial support; (2) physical or verbal reprimand-several cases from Pakistan suggest that husbands are allowed to abuse their wives without it being considered assault; (3) polygamy-husband is allowed to marry up to four wives; and (4) divorce.[xxiv]

India

A comparison on why marital rape is not prosecuted in the largest democracy in the world

While India is not guided by religious laws like Pakistan, India still suffers from gender inequality and violence against women. Notably, even though India is 80% Hindu, each religious strand in India is given its own laws, therefore the Muslim community in India is governed by laws similar to Pakistan.

There are various arguments against the criminalization of marital rape in India. In 2019, the former Chief Justice of India was quoted saying that if marital rape were to be prosecuted in India, it would “create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values.”[xxv]

In other words, since family values are such a huge part of the Indian identity, India cannot follow the western ideals of marital rape and consent. Furthermore, in India, since a majority of people are uneducated, illiterate, and conservative, women tend to dutifully consent to their husbands without being aware of what consent or rape means.[xxvi]

In Independent Thought v. Union of India, a 2017 Supreme Court case that increased the age of consent to eighteen for sexual intercourse within marriage, the Supreme Court stated that since marriage is personal and if the government started governing and criminalizing the institution of marriage, then the legal system would destroy this very institution.[xxvii]

Similarly, in 2018, the Gujarat High Court, a state court, stated that the topic of marital rape violates that trust and confidence within a marriage and if courts were to prosecute marital rape, the legal system would destroy the institution of marriage.[xxviii]

Another common argument against the criminalization of marital rape is the concept of implied consent. A historical justification of implied consent comes from the British society which stated that “the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract.”[xxix] This justification was revoked in England in 1991, however, still continues to be used in India as seen in the Law Commission of India’s 172nd Report on Review of Rape Laws of 2000.[xxx]

Exception 2 to Section 375 of the Indian Penal Code aids in the victimization of married women due to their marital status and goes against the very purpose of Section 375 which is to protect women from rape. In addition, this exception violates the rights guaranteed by Article 14, 15, and 21 of the Indian Constitution. Article 14 gives every Indian the right to equality by stating that “the state not deny to any person equality before the law or the equal protection of the laws within the territory of India.”[xxxi] Article 15 Subsection 3 allows the Indian State to make special provisions for women and children.[xxxii] Article 21 promises that no person should be deprived of life or personal liberty.[xxxiii]

Adequate Legal Recourse in India

Hindu Marriage Act and Protection of Women from Domestic Violence Act

While the aforementioned statements suggest that women in India are not given a legal recourse against marital rape, the Protection of Women from Domestic Violence Act of 2005, Section 498A of the Indian Penal Code and the Hindu Marriage Act does provide adequate legal recourse against marital rape in India.

Section 13 of the Hindu Marriage Act allows women to use cruelty, which includes rape, as grounds for divorce.[xxxiv] The Domestic Violence Act provides civil remedies for women facing domestic violence including sexual violence. The Domestic Violence Act does not criminalize sexual violence, however, it provides civil remedies such as monetary compensation, judicial separation, and protection orders.[xxxv]

While simply allowing women to get a divorce under the Hindu Marriage Act still provides the perpetrator with the freedom to marry another woman and subject her to the same abuse, it still provides adequate legal recourse against marital rape.

Conclusion

Marital rape issues in India and Pakistan are still a controversial discourse. In both countries, the conservative ideology strongly believes that marital rape should not be regulated by the state. While India does not criminalize marital rape, Pakistan, on the other hand, has provisions for its prosecution.

Clearly, in India and Pakistan, due to the ingrained patriarchal mindsets as well as religious duties prevalent throughout the respective countries, marital rape is not deemed as rape. Additionally, women in both countries are less likely to report rape within their marriages as Pakistan and India both suffer from the status quo of gross underreporting of rape incidents due to the humiliation accrued to rape victims and religious/cultural ideals imposed on women in both countries.

In India, the issue of marital rape demands educating the masses on a woman’s bodily autonomy over her own body. In addition, the issue of marital rape can be legally resolved by removing Exception 2 to Section 375 and diverging from viewing marriage as a defense to rape. Thereafter, India would need to overcome other barriers such as economic and societal in order to educate and provide women who face sexual violence in marriage effective support.

In Pakistan, the issue of marital rape is harder to tackle since it is intertwined with the countries religious views and texts. Other countries where Islam is the state religion such as Egypt, Morocco, Algeria, Bangladesh also do not have explicit criminalization of marital rape. Nonetheless, a reconceptualization of marital rape based on sex inequality is required in Pakistan.

 

Citations

[i] There needs to be a distinction made between urban and rural (and educated and non-educated) India and Pakistan since urban parts of these countries follow ideals of equality in marriage. Furthermore, socio-economic status of families also changes the roles of the wives and husbands in a marriage. The upper-middle class and upper class rarely has issues of marital rape present since women are educated enough to understand the concept  of consent, sexual autonomy, and are not dependent on their husbands financially.

 

[ii] Kamdar, B. (2020, August 17). In India, a Man Can Still Legally Rape His Wife. Retrieved January 23, 2021, from https://thediplomat.com/2020/08/in-india-a-man-can-still-legally-rape-his-wife/

 

[iii] Ali FA, Israr SM, Ali BS, Janjua NZ. Association of various reproductive rights, domestic violence and marital rape with depression among Pakistani women. BMC Psychiatry. 2009;9:77. Published 2009 Dec 1. doi:10.1186/1471-244X-9-77

 

[iv] Indian Penal Code § 375, No. 45 of 1860, India Code.

 

[v] The Hudood Ordinances are laws in Pakistan that were enacted in 1979 as part of the “Islamization” process to make Pakistan confirm with the injunctions of Islam.

 

[vi] The Offence of Zina (Enforcement Of Hudood) Ordinance, No. 7 of 1979, § 6(1) THE GAZETTE OF PAKISTAN EXTRAORDINARY, Feb. 9, 1979.

 

[vii] Abdul Kadir v. Salima, (1886) ILR 8 All 149 (Pak).

 

[viii] PAKISTAN CONST. art. 227, § 1. Section 1.

 

[ix] Qur’an 4:34

 

[x] Carolyn Fluehr-Lobban & Lois Bardsley-Sirois, Obedience (Ta’a) in Muslim Marriage: Religious Interpretation and Applied Law in Egypt, 21 J. COMP. FAM. STUD. 39, 40 (1990).

 

[xi] ASGHARALI ENGINEER, THE RIGHTS OF WOMEN IN ISLAM 6–7 (2008).

 

[xii] Saleem Khan, Iqra, Consent in Marriage: A Radical Feminist Analysis of Pakistani Law (September 26, 2019). William & Mary Journal of Women and the Law, Vol. 26, No. 3, 2020, Available at SSRN: https://ssrn.com/abstract=3493901 or http://dx.doi.org/10.2139/ssrn.3493901

 

[xiii] Qur’an 3:34 and 4:34.

 

[xiv] Ali Shaikh, Is Domestic Violence Endemic in Pakistan: Perspectives from Pakistani Wives, 10 PAK. J. MED. SCI. 23, 23 (2003).

 

[xv] Jill Elain Hasday, Consent and Contest: A Legal History of Marital Rape, 88 Calif. L. Rev. 1373 (2000).

 

[xvi] Prasad, Pallavi. Why It’s Still Legal For Indian Men to Rape Their Wives. 20 Jan. 2020, theswaddle.com/marital-rape-inda-decriminalized-crime/.

 

[xvii] To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99(6) Harv. L. Rev. 1255, 1256 (1986).

 

[xviii] Gulmeena Roghani, Marital Rape: As Heinous as a War Crime, COURTING THE

LAW (Feb. 16, 2018), http://courtingthelaw.com/2018/02/16/commentary/marital-rape-as

-heinous-as-a-war-crime [https://perma.cc/3YZQ-CWFV].

 

[xix] CATHARINE A.MACKINNON,TOWARD A FEMINIST THEORY OF THE STATE 162 (1989).

 

[xx]  Qur’an 2:223

 

[xxi] Hadith No. 143

 

[xxii] Consent, COLLINS DICTIONARY OF LAW (3 ed. 2006), available at https://legal-dictionary.thefreedictionary.com/consent [https://perma.cc/ZY97-PT4F] (last visited Jan 10, 2020).

 

[xxiii] Saleem Khan, Iqra, Consent in Marriage: A Radical Feminist Analysis of Pakistani Law (September 26, 2019). William & Mary Journal of Women and the Law, Vol. 26, No. 3, 2020, Available at SSRN: https://ssrn.com/abstract=3493901 or http://dx.doi.org/10.2139/ssrn.3493901

 

[xxiv] Id.

 

[xxv] Kadidal, Akhil. “Marital Rape Shouldn’t Be Crime in India: Ex-CJI Misra.” Deccan Herald, DH News Service, 8 Apr. 2019, www.deccanherald.com/city/marital-rape-shouldn-t-be-crime-in-india-ex-cji-misra-727688.html.

 

[xxvi] Prasad, Pallavi. Why It’s Still Legal For Indian Men to Rape Their Wives. 20 Jan. 2020, theswaddle.com/marital-rape-inda-decriminalized-crime/.

 

[xxvii] Id.

 

[xxviii] Id.

 

[xxix] SIR MATTHEW HALE, THE HISTORY OF THE PLEAS OF THE CROWN 628 (1736); Independent Thought, 382 SCC at 44-45.

 

[xxx] LAW COMMISSION OF INDIA, 172ND REPORT ON REVIEW OF RAPE LAWS (2000);

NIGAM, supra note 22, at 13.

 

[xxxi] INDIA CONST., art. 14

 

[xxxii] INDIA CONST., art. 15(3)

 

[xxxiii] INDIA CONST., art. 21

 

[xxxiv] Hindu Marriage Act, No. 25 of 1955, HINDU CODE, § 13;

 

[xxxv] PEN. CODE § 498A (India).