Recognition of marital rape in Pakistani law

It has been claimed by some that marital rape is not recognised in Pakistani law.[1] The actual position is some what more nuanced.

Law of Rape

Since 2006, the law of rape has been governed by Ss375 to 376 of the Pakistan Penal Code1860. They read

375. Rape:- A man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions, (i) against her will.

(ii) without her consent

(iii) with her consent, when the consent has been obtained by putting her in fear of death or of hurt,

(iv) with her consent, when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married; or

(v) With or without her consent when she is under sixteen years of age.

Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

376. Punishment for rape (1) Whoever commits rape shall be punished with death or imprisonment of either description for a term which shall not be less than ten years or more, than twenty-five years and shall also be liable to fine.

(2) When rape is committed by two or more persons in furtherance of common intention of all, each of such persons shall be punished with death or imprisonment for life.".

Marital Rape

While the US state department and the UK Home Office have claimed that no marital rape law exists.[2]

Prior to 1979, instances of marital rape were under the purview of family law instead of criminal law.[3] Mr Justice Shazado Sheikh, a former judge of the Federal Shariat Court of Pakistan however has disagree with this analysis,[4] stating that the Ss 375/376 PPC do in fact criminalise marital rape. This position has been supported by other jurist [5] who point out that the legislatures removal of valid marriage as an exception to rape means that marital rape has been criminalised, despite the absence of specific legislation. Women's right NGO' the Aurat Fondation has supported this view [6]

Women's rights in marriage

There has, historically, been a conception of the conjugal right within marriage. This concept continues to be recognized as law in Pakistan. There are no recorded cases of marital rape being successfully prosecuted against legally married couples in Pakistan.[7]

See also

References

  1. Koss, M.P., Dinero, T.E., Siebel, C.A., & Cox Stranger and acquaintance rape: Are there differences in
  2. Sir Matthew Hale, Pleas of the Crown, Vol.1 736
  3. Clarie M. Renzetti, Requel Kennedy Bergen Violence Against Women 2004
  4. Suzanne G. Frayser, Thomas J. Whitby Studies in Human Sexuality: A Selected Guide 1995
  5. A.Nicolas Groth, H. Jean Birnbaum Men Who Rape: The Psychology of the Offender 2001
  6. Samya Burney Crime or Custom? Violence Against Women in Pakistan 1999
  7. Irfan Latif Mir, Situation of Marital Rape in Pakistan Weekly Iqbalian. 23 March 2002
  8. Naeem Butt, After Effects of Spousal Rape Monthly Daytime, January 2007
  9. Dr. Shahid Masood, Enough is Enough, Its time to Change Daily Nawa-e-Shumal, Sialkot Pakistan, 14 August 2007 Independence day Special
  10. Nicole Westmarland, Rape Law Reform in England & Wales School for Policy Studies Working Paper Serious April 2004, Paper 7
  11. Declaration on the Elimination of Violence Against Women A/RES/48/104 23 February 1994.
  12. Not a one Minute more, ending Violence against Women, UNIFEM 2003
  13. Expert Group Meeting on good practices in legislation on violence against women United Nations Office at Vienna 26 to 28 May 2008 EGM/GPLVAW/2008
  14. Violence against Women, Amnesty International 1993, 11-12
  15. Violence against Women, Amnesty International 1995, 14
  16. ‘A World Free of Violence Against Women’, United Nations Inter-Agency Global Videoconference, 8 March 1999
  17. Frieze and Browne, Violence in Marriage, Family Violence: Crime and Justice, A Review of Research, 1989

Notes

  1. ↑ Goonesekere, Savitri. Violence, Law and Women's Rights in South Asia. Published by SAGE, 2004. pp. 61. ISBN 0-7619-9796-2, ISBN 978-0-7619-9796-2
  2. ↑ http://www.islamicbooks.com.pk/books/Protection%20of%20Women%20-%20A%20Critical%20Analysis.pdf
  3. ↑ Goonesekere, Savitri. Violence, Law and Women's Rights in South Asia. Published by SAGE, 2004. pp. 60. ISBN 0-7619-9796-2, ISBN 978-0-7619-9796-2
  4. ↑ The Protection of Women, A critical Analysis at page 81http://www.islamicbooks.com.pk/books/Protection%20of%20Women%20-%20A%20Critical%20Analysis.pdf
  5. ↑ For example http://www.dawn.com/news/1096629
  6. ↑ http://www.ohchr.org/Documents/HRBodies/CEDAW/AccesstoJustice/AuratFoundationAndWarAgainstRape_Pakistan.pdf
  7. ↑ Aurangzeb Haneef Marital Rape. January 8, 2001. Chowk.
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