Urgent reformation need on laws of Bangladesh for avoiding the marital rape

Aruna Bala writes for DOT
Rape is a rape, whether it’s a stranger rape or marital rape. But marital rape is the most common and repugnant form of masculinity in the society of Bangladesh. It is completely concealed under the strict religious beliefs and customary rules, where married women can’t raise their voice against the marital rape. It’s not only physically put scars but also psychologically married women get traumatized by the incident.
The concept of the marital rape was first introduced in 1736 by the Chief Justice of England Matthew Hale commenting that “But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial concept and contract. The wife hath given up herself in this kind unto her husband, which she cannot retract. ” But the initiative changes of the doctrine of Matthew Hale about the marital rape started from the case R vs. Clarence where the judges theorized that “marital rape could be possible in some cases if the wife refuses intercourse and the husband uses violence to force the sexual act upon her.” And finally in the case of R vs. Steele the court has found that a wife who had revoked her consent where the husband was living separately from his wife and had given an undertaking to the court not to molest or assault her.
Marital rape is an almost unrecognized crime under the current legal regime. Many countries consider it as a crime namely: Australia, Canada, USA, UK, New Zealand and others. But Bangladesh doesn’t consider the marital rape as a crime rather as a domestic violence. Also it happened because of silence behaviors of Bangladeshi laws. Marital rape has been allowed almost all over the world. A reason behind this allowance was due to domination of the British Colonial Rule. As a common law country Bangladesh has exempted the marital rape. Furthermore, our neighboring country India also does not recognize the marital rape as a crime; they also put exemption on this issue.
The section 375 of ThePenal Code-1860precisely mentions that “without her will and without her consent and by putting her fear of death or of hurt if anyone tries to constitute a sexual intercourse will be recognized as the rapist for offence of a rape.” But in the case of married women, due to the exemption of this section, the marital rape doesn’t count as a rape. This section also mentions about the age restriction whereas it contradicts with the Child Marriage Restraint Act-2017 and also another law of Bangladesh named Nari-O-Shisu-Nirjatan Daman Ain-2000which follows the same provisions of the Penal Code-1860, Section 375. Again, section 376 of the Penal Code-1860 provides the punishment for the rape. There is also another exemption remain related to the marital rape.
All married women who are raped by their partners, not only psychologically distraught but also physicallyget affected. Among them psychological effects lasts longer which traumatize their feelings. Though, worldwide the marital rape has been penalized and counted as a crime, but still there are no changes in our laws. So the immediate amendments are urgently required to stop the marital rape. Mere declaration should not be accepted for this kind of violations and the government of the Bangladesh should strictly approve that the marital rape is a crime. According toDr David Finkelhor, marital rape should be criminalized because: “When you are raped by a stranger you have to live with a frightening memory. When you are raped by your husband, you have to live with your rapist.”
The author is an independent researcher.