Notre Dame University Bangladesh

Marital Rape: A Silent Crime in Bangladesh

Submitted to:
MD. MUSTAKIMUR RHAMAN
Lecturer,
Department of Law
Notre Dame University Bangladesh
Submitted by:
ANIKA IBNAT TONISHA

ID: 173080005
Batch 7th
Department of Law
Notre Dame University Bangladesh
Date of Submission: July 24, 2019

1
INTRODUCTION
When someone thinks of rape, the first thing that pops into their mind is to think of someone who
is a stranger, a malicious person. Usually no one thinks of rape in the context of marriage. Even
woman themselves find it difficult to believe that a husband can rape his wife. After all, how can
a man be accused of rape if he is availing his conjugal right? It is indicative that a woman has no
right to her own body and her will is subject to that of her husband. Though marital rape is the
most common and repugnant from of masochism in the society, it is well hidden behind the iron
curtain of marriage. While the legal definition varies, marital rape can be defined as any unwanted
intercourse or penetration (vaginal, anal, or oral) obtained by force, threat of force, or when wife
is unable to consent.1

PROVISION OF RAPE IN THE PENAL CODE

The Exception to section 375 of the Penal Code (1860) clearly states that "Sexual intercourse by a
man with his own wife, the wife not being under thirteen years of age, is not rape". As per this
section, if the wife is under 13 years of age, only in that case sexual intercourse by the husband
with or without her consent will constitute the offence of rape. That is to say, if the wife's age is
not less than 13 years and her husband compels her to have sexual intercourse with him, it will not
amount to a rape. Thus this exemption clause makes it legally impossible for a man to rape his
wife who is over 13 years of age. It is also contradictory to the age of consent found in Section
375 which covers statutory rape and clearly provides that sexual intercourse with a woman "with
or without her consent, when she is under fourteen years of age" is considered to be rape.2

MARITAL RAPE IN BANGLADESH

Most people in Bangladesh have a very stereotypical conception of rape -- that it is a possibility
only with a stranger, and thus do not acknowledge it as a crime when it occurs within the marital
bond. Studies and research conducted on victims suggest otherwise -- the trauma of a victim of
marital rape is much more. The victim might not be able to reach out for any support, and the
ordeal may continue. Therefore, there is an immediate need for a distinct law on marital/spousal

1
http://www.iosrjournals.org/iosr-jhss/papers/Vol.%2021%20Issue6/Version-
2/B02106020813.pdf?fbclid=IwAR3ETq970hCs_tuRQlO6Oav32o5q43hp9WaUexOOZulCVvXhFZALdtUog3c
2
https://www.observerbd.com/details.php?id=102356&fbclid=IwAR1QN0IRiJDCVx-
GOCLj71h3ogWgUW1GhI6PdKka3bMltHA0T87aZJloDVw

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rape in Bangladesh, which should be at par with the accepted international norms on this issue. In
the context of Bangladesh, rape within marriage is a concept that agonizes the wife to the very
core. The dread of having to face it and suffer through silently is an unbearable thought that affects
the psyche of women. This self-enforced silence has a very detrimental effect on the emotional,
psychological, and mental stability of women. However, this silence is not exactly self-enforced.
The lack of laws and abundant social stigmas against the act of marital rape is one of the primary
reasons that the evil of marital rape is still hidden behind the sanctity of marriage. 3

WHY IS IT HIGH TIME TO CRIMINALIZE MARITAL RAPE?

Marital Rape involves prolonged psychological abuse which is merely reported in Bangladesh.
But according to a recent nationwide survey conducted by the Bangladesh Bureau of Statistics in
collaboration with the United Nations Population Fund, nearly nine out of 10 husbands abuse their
wives in Bangladesh, the survey titled “Violence Against Women Survey 2011” conducted on
12,600 women randomly chosen across the seven divisions says an astonishing 87 percent of
married women are abused by their husbands.4 In Bangladeshi households, it is disrespectful for a
wife to deny sex to her husband. Given the conventional mindset and religious superstition, it
becomes a duty for the wife to fulfill her husband’s unreasonable physical needs. This results in
the husband demanding sexual intercourse even without her consent. While on the attempts to
save the marriage, she never restrains. Incidents like these have been going on for centuries and
no one in this part of the world found it unnatural. Life remains the same for the wife, making
breakfast for the husband the next day, doing her chores, taking care of the children. But what truly
changes are her level of eagerness to be happy, her well-being and most importantly her inner
peace. She won’t utter a word, fearing that it might hurt her loving husband’s feelings. She has
vowed to take care of him on her wedding day. She has been taken control of and molded by her
in laws to fit right in, making her a robot in denial mode. Hence, such injustice done to her is
anything but a crime, in her controlled eyes. It is that offense which never gets reported and the
criminal roams around freely waiting to repeat his actions in the night that follows. Unless the
marital rape results in the wife succumbing to injuries, the story never steps out of the four walled

3
https://www.dhakatribune.com/opinion/op-ed/2019/01/23/no-means-no-
2?fbclid=IwAR3qrZ2Zw1jK0K_a2ZuEUsqCvQKXFeIwMGtWi3lkJTjOLwoH5JmOutPGVu8
4
Islam Z, ‘Most abused at homes’, The Daily Star (2015), [www.loc.gov/law/foreign-news/article/india-
criminal-law-amendment-bill-on-rape-adopted/]

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room. It is therefore a crime that occurs every day, every month of the year and yet remains
unknown to the outside world. According to Bangladesh National Woman Lawyers’ Association
(BNWLA) statistics, at least 241 rape incidents were reported between January and May 23, 2015.
The organization said the incidence of rape has been rising since 2010. BNWLA statistics showed
789 rapes reported in 2014, 719 in 2013, 836 in 2012, 603 in 2011 and 411 in 2010.5

MAJOR REASONS OF MARITAL RAPE IN BANGLADESH

There are many cause of marital rape in Bangladesh. Amongst them the principal causes of marital
rape area.

Religious cause: In Bangladesh most of the people live in rural areas and the majority of them are
Muslim. Literacy rate is very low. Though bulk of the people are very religious but they don’t have
enough change to get proper religious education. As a result, they do have several types of religious
superstition which never goes with the true meaning and object of Islam. There is a religious
believe in Bangladesh that the wife has a sacred duty to please his husband anytime he wants.

Illiteracy: Illiteracy is a curse for every nation. As most of the people in Bangladesh do not know
how to read or write it is very difficult for them to realize the concept of woman right.

Poverty: Bangladesh is one of the world’s most densely populated countries with 160 million
people. 26 percent of whom live below the national poverty line of US $2 per day. In additional,
child malnutrition rate is also high, in condition that is tied to the low social status of woman in
Bangladeshi society. The scope of quality entertainment is very low in Bangladesh as there is not
any minimum infrastructure. So one of the popular forms of entertainment is considered to have
sexual intercourse with the wife. In that case if the wife does not give the consent marital rape
frequently occurs.

Absence of penal law against marital rape: In Bangladesh a lot of laws have been passed to
protect the woman from violence and rape. Among them “Nari-o-Shishu Nirjaton Daman Ain,
2000” is the most popular. But unfortunately nowhere in this law or any other law marital rape is
addressed or made penal offence. Only raping under wife under 14 years of age is crime over here.
Lack of woman empowerment: Empowerment is the process of giving power of authority to the

5
Hasan K, Khan Jamil M, ‘Rape, Rape-murder Rising’, The Dhaka Tribune (2015).
[http://archive.dhakatribune.com/crime/2015/may/31/rape-rape-murder-rising]

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powerless. Empowerment of woman is a process through which woman in general and poor
woman in particular get the opportunity to join the workforce and contribute to family income and
interfere on the decision making of the family as well as get the opportunity to raise their voice
against the injustice and exploitation. In past Bangladeshi women were segregated from out of
home productive work. They were kept within the four walls. The hearth became the place for
them. So cooking, cleaning, washing, giving birth and rearing children became their jobs. Men
became the wage earners and all other activities became their responsibilities. Though now a days
we have come a long way as today women are playing important role in all spheres of life. Many
of them have come out of the kitchens. They are working hand in hand with men in all spheres of
work i.e. from garments workers to pilots, doctors, engineers, teachers, administrators etc. But still
most of the woman live in the rural areas and if they are empowered only then they would have
the capacity to raise the voice against the marital rape otherwise they don’t have any scope but to
accept all the oppression against them.

Forced and early child marriage: Forced marriage and early marriage are prevalent in this part
of the world, especially in South Asia and in Bangladesh it is very common. A forced marriage is
a marriage where one or both participants are married without their freely given consent. So, a
child marriage is a marriage where one or both parties are younger. These types of marriages are
associated with a higher rate of domestic violence, including marital rape. In Bangladesh
traditionally woman is very shy and they do not express their feelings publicly. If they do not have
visible physical injuries from the assault and/or rape, friends and family may think you are okay.
Many people do not understand the extent of trauma that is suffered by rape and sexual assault
victims, even if the offender is a loved one. Moreover, as a victim of spousal or relationship sexual
assault and/or rape, victim will probably have to deal with additional effects and experience that
are very different from the experience had by victims of stranger sexual assault and/or rape.6

CASE ANALYSIS

The legality of marital rape finally came under scrutiny in the mid-twentieth century and England
itself outlawed marital rape as late as 1991, in the case of R v R, while the British-mandated marital
rape exemption still remains in force in Bangladesh. Interestingly, the original age stipulated in

6
http://www.iosrjournals.org/iosr-jhss/papers/Vol.%2021%20Issue6/Version-
2/B02106020813.pdf?fbclid=IwAR3ETq970hCs_tuRQlO6Oav32o5q43hp9WaUexOOZulCVvXhFZALdtUog3c

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the Penal Code's marital rape exemption clause has been amended time and time again by local
lawmaker’s post-independence, presumably in accordance with changing social norms.7 Gujarat
HC said in a case that “Marital rape is not a husband’s privilege but a violent act and an injustice
that must be criminalised”. By criminalising marital rape, we can actually remove medieval gist
from our mindset that the wife does not really become a property of the husband after entering into
marriage contract so that the husband gets into sexual intercourse whenever he demands.8 It is
worth mentioning that there is lack of recent jurisprudence or case law on the issue of marital rape
in Bangladesh. But in India, this crime exists de facto though not de jure. In Bodhisattwa Gautam
vs. Subhra (1996) the Indian Supreme Court held that "rape is a crime against basic human rights
and a violation of the victim's most cherished fundamental right namely the right to life enshrined
in Article 21 of the Constitution".9 since 1993, the US had made it illegal in all of its states. While
most countries in the world declared marital rape illegal, Bangladeshi lawyers take a deep breath
while reading the exception of Section 375, Penal Code 1860. “Sexual intercourse by a man with
his own wife, the wife not being under thirteen years of age, is not rape.”10

RECOMMENDATION

There is an immediate need to enact laws for prevention of marital rape or to amend Nari-o-Shishu
Nirjatan Daman Ain,2000(Amended in 2003) nand insert section regarding marital rape and the
definition of marital rape should be expanded as there are many ways in which marital rape can
happen but that law at least should list some of the facts or expand the definition such as:

a. If the spouse has sex with the wife when he is On Drugs. Several women wake up to their spouse
having sex with them when they are under the influence of drugs. As Prescription drugs or even
liquor can cause a woman to not be able to make choice or fight the person off of her since she is
under the influence of drugs.

7
https://www.thedailystar.net/opinion/society/why-marital-rape-still-legal-bangladesh-1438600
8
https://www.daily-sun.com/post/334665/2018/09/09/Importance-of-criminalising-marital-rape-in-
Bangladesh?fbclid=IwAR1CTFh_IfTE4QB0j1TVvU1A-O-_Nu4KBPT6fbBH__gU5U1XfED33XC0n6w
9
https://www.observerbd.com/details.php?id=102356&fbclid=IwAR1QN0IRiJDCVx-
GOCLj71h3ogWgUW1GhI6PdKka3bMltHA0T87aZJloDVw
10
https://futrlaw.org/let-silence-audible-marital-rape-
bangladesh/?fbclid=IwAR3ZGpabEilO48wgumawqlR6_1vsXrFCiMCGbTKquPxVpRiQs7BTyVfspGY

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b. When the husband commits Sodomy without the consent of wife, it is rape sodomy is the most
painful. The husband has no right to commit sodomy just because of the fact that he is doing it to
his own wife. A wife has a right to say no regarding to what happens to her own body.

c. If women’s spouse doesn’t stop the sexual intercourse when she says no, it should be considered
rape. Wife should not have to say no more than once. Any man that keeps going after the wife say
no once than it should be rape no matter what the situation is.

d. If the husband uses religion against the wife. Some husbands attempt to use religious lines
against wife in order to force sex upon her. Husbands can still be charged with rape when they use
religion to force themselves upon wives. Some husband says that they have a right to wife’s body
by using the name of religion in order to justify what they do. Religion is something that sometimes
husbands turn around on the wife in order to make her feel like it isn’t really rape that happened.
So the husband should have no right to use any religious line on you to strip wife of all of her
rights as a human being.

e. If the husband threatens the wife with force if she fights him. Many husbands tell their wife that
it can happen in the easy way or the difficult way if the wife refuses. It is way of force someone to
submit to something that they don’t want to do in the first place. It is no different than when a man
beats his wife until she does something that he wants no matter what the situation is.

f. At the same time law should also provide damage with penal provision so that victim could have
the courage to stand the perpetrator. Secondly the government has to raise awareness among the
public about the marital rape. Legal aid groups and government legal aid agencies should come
forward to provide legal assistance to victims.11

CONCLUSION

Today there are many countries that have either enacted marital rape laws, repealed marital rape
exceptions or have laws that do not distinguish between marital rape and ordinary rape. The
criminalisation of marital rape in these countries both in Asia and around the world indicates that
marital rape is now recognised as a violation of human dignity in many countries. We have
advanced in many fields still marital rape is not considered as an offence in Bangladesh. Despite

11
http://www.iosrjournals.org/iosr-jhss/papers/Vol.%2021%20Issue6/Version-
2/B02106020813.pdf?fbclid=IwAR3ETq970hCs_tuRQlO6Oav32o5q43hp9WaUexOOZulCVvXhFZALdtUog3c

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having amendments, law commissions and new legislations, one of the most humiliating and
debilitating acts is not an offence in Bangladesh. It is high time for the lawmakers to enact laws
regarding marital rape & take necessary steps to lessen the violence against the women.12 We need
to realise how marital rape has the potential to be even more traumatic and scarring for a victim
than rape by a stranger. Indeed, this was poignantly highlighted by Dr David Finkelhor in his
testimony supporting the criminalisation of marital rape: “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.”13

12
https://www.daily-sun.com/post/334665/2018/09/09/Importance-of-criminalising-marital-rape-in-
Bangladesh?fbclid=IwAR1CTFh_IfTE4QB0j1TVvU1A-O-_Nu4KBPT6fbBH__gU5U1XfED33XC0n6w
13
https://www.thedailystar.net/opinion/society/why-marital-rape-still-legal-bangladesh-1438600