A RECENT judgement passed by an additional district and sessions judge in Karachi is being celebrated as recognition of marital rape as a criminal offence under Pakistani law. The court found the accused husband guilty of Section 377 (unnatural offences) of the Pakistan Penal Code (PPC) for forcefully subjecting his wife to sodomy, and sentenced him to imprisonment for three years and a fine of Rs30,000.

Although the judgement does not strictly qualify as a conviction for rape — a separate offence defined in Section 375 of the PPC — it is significant in possibly being a first judicial pronouncement in our jurisdiction on the criminal consequence of forced sexual relations between spouses in a marriage. The United Nations Population Fund has reported that around 40 per cent of women in Pakistan are victims of spousal violence. Details on the incidence of marital rape and sexual violence within marriages are, however, little known. Complaints of marital rape are rare; convictions for marital rape — non-existent. This is so, despite the fact that the law provides space for criminal prosecution of marital rape.

Section 375 of the PPC (as amended recently in 2021) defines rape as the penetration of a bodily orifice of a person (who may be a man, woman or transgender) by an object, body part or mouth of another person, in the absence of meaningful consent. The expanded definition of rape now includes sodomy within its ambit.

Prior to 2006, when the offence of rape (zina-bil-jabr) was governed by the Hudood Ordinances, a husband was exempted from criminal liability for non-consensual sexual intercourse with his wife. The exemption was removed when the offence of rape was re-legislated into the PPC through a criminal law amendment in 2006.

Many Muslim countries recognise marital rape as a criminal offence.

In the case before the judge, the husband could, in principle, have been convicted for rape under Section 375 for his forced act of sodomy with his wife (depending of course on under what section(s) of the PPC the FIR was registered). A conviction under Section 375 would invite graver penalties/ punishments; rape is punishable by a maximum sentence of imprisonment for the remainder of a convict’s natural life. A conviction under Section 375 would be significant in another aspect as well: criminal culpability would be based on the forceful and non-consensual nature of the sexual encounter between the husband and wife, as opposed to arising out of the act of sodomy (be it consensual or non-consensual), which is per se culpable under Section 377 of the PPC.

It is interesting to note that the Indian Penal Code (IPC) has maintained the marital rape exception in the definition of rape. Exception 2 to the Section 375 of the IPC reads: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape.”This exception is based on the understanding that a woman upon marriage irrevocably consents to sexual relations with her husband.

The question of constitutionality of the marital rape exception in the IPC is pending before India’s supreme court, after having been determined by the high courts of two states. The exception is being challenged on the ground that it violates women’s right to equality by depriving them of the equal protection of the law, amounts to discrimination on the basis of marital status, and in denying women bodily agency and autonomy violates their right to life and liberty. The decision of the Indian supreme court is awaited.

The marital rape exception was also undone in English law through judicial intervention. In 1991, the House of Lords (predecessor of the UK supreme court) held that the marital rape exemption was not a statutory provision but an anachronistic and offensive common law fiction, for which no room exists in modern times where marriage is a partnership of equals.

Many Muslim countries recognise marital rape as a criminal offence, though the exact nomenclature adopted in their laws may be different. For instance, Indonesia’s sexual violence law classifies “forcing sexual intercourse … on people who live within the scope of the household”as “sexual violence”. Similarly, the definition of “sexual assault” in Article 102 of the Turkish Penal Code for all purposes criminalises rape within a marriage.

Whilst the law recognises and makes provision for marital rape, cultural norms and pressure may in fact be the primary hurdle to aggrieved women seeking protection of the law. Public conversation and awareness-raising on the subject, therefore, are critical as are legal education and judicial training on the scope of the law governing rape.

The writer is a lawyer.

Published in Dawn, February 12th, 2024