Still, across the border, the Indian Supreme Court has at least recognized existence of marital rape and have taken up discussion about its criminalization. However, this is yet to be seen in Pakistan where only one case of marital rape is known to be reported.
This is unsurprising, given that in Pakistan rape itself is still justified by those at the very top, be it Pakistan’s ex-Prime Minister Imran Khan, in international interviews or the oft-forgotten case of Shazia Khalid where ex-President Pervaiz Musharraf defended an accused rapist belonging to the armed forces on national television while actively persecuting the victim.
It is a terrifying aspect when reports show that up to 90% of women in Pakistan have suffered abuse from their intimate partners.
Most regrettable however is that due to the menace of underreporting, even Pakistani feminist organizations are reluctant to give marital rape much-needed attention. Aurat March has rarely mentioned marital rape in 2023. Feminist organizations within Pakistan should actively bring attention to marital rape by creating debates, and more importantly empowering women to stand against it.
Abuse has reached a level where it has become largely accepted by society, akin to slavery in the USA before the Emancipation Proclamation. The worst kind of suffering is the one that goes unacknowledged, while there may be misconceptions about marital rape being allegedly less damaging to the victim than other types of rape. According to studies, marital rape can easily be much worse, in addition to likelihood of multiple rape incidents, the survivor must live in constant fear of abuse at the hands of someone who is always around them, supposedly for the rest of their life.
It is a terrifying aspect when reports show that up to 90% of women in Pakistan have suffered abuse from their intimate partners, which opens a window to estimating just how prevalent marital rape might be in average Pakistani households. Survivors often suffer from many physical injuries and long-term mental illness including, but not limited to, post-traumatic stress disorder (PTSD), anxiety and depression. This is exactly why rape is a major public health problem.
The Criminal Laws (Amendment) Act 2021 redefined the offence of ‘rape’ in Section 375 of the Pakistan Penal Code by increasing the scope and ambit of the complex crime of rape. The definition redefined rape as taking place in the following circumstances: (i) Against her will (ii) Without her consent (iii) When the consent has been obtained by putting her in fear of death or of hurt (iv) With her consent by falsely representing himself as her husband (v) When she is under sixteen years of age (vi) When due to unsoundness of mind she is not able to understand the nature of and the consequence of giving consent (including due to administration of any substance by rapist or another) (vii) When she is unable to communicate consent.
There is a serious need to address child marriages, a heinous phenomenon in our society, which has allowed the rape of minors with little consequence.
However, the lack of knowledge of the criminal justice actors continues to harm victims and survivors of rape. By way of logic, the legislation itself does allow interpretation of marital rape in accordance with the conditions in definition. However, judicial bigotry further fuels the incompetence of already derogatory and hard to deal with police, who “recommend” victims against reporting any sort of rape, and often force them not to.
Keeping this in mind, it only makes sense that legislators and government officials should introduce measures to increase both the reporting and the abysmal less than 3% conviction rates and further strengthen the enforcement of existing legislation to help rape victims such as Anti-Rape (Crises Cell and medico-legal), which remains poorly implemented in the real world. Moreover, law explicitly mentioning marital rape must be enacted to give the judiciary and police no breathing room to deny the existence of rape under marriage.
Moreover, there is a serious need to address child marriages, a heinous phenomenon in our society, which has allowed the rape of minors with little consequence. It is outlawed to marry a girl under 18 in Sindh and under 16 in other Provinces. However, courts have been seen to rely on the Bakhshi v Bashir Ahmed (PLD 1970 SC 323) judgement of the Supreme Court, which declares that a child marriage after the fact is not void.
Recently, the Federal Shariat Court has upheld both the ability and need of the state to uphold the minimum age for marriage in the statute. In addition, in 2022, the Islamabad High Court delivered an important judgment in the case of Mumtaz Bibi v Qasim (W.P No. 4227 of 2021) explicitly declaring all child marriages as being void and unable to be registered, in addition any sexual conduct with the victim would be punished in line with the PPC. This, however, is only applicable in the Capital Territory, and only a persuasive precedent otherwise, which means that courts in other provinces may choose to follow the precedent, but aren't bound to do so. Although it is hoped that the IHC judgement does lead to the much needed legislative and judicial action in other provinces.
It is pertinent to mention that improper representation of Islam by abusers has played a major role in side-lining the issue of marital rape. Hurting anyone, much less one’s wife is strictly prohibited in Islam, which marital rape precisely does. Mutual rights of women and wives are also constantly reiterated by Prophet Muhammad (PBUH). This has been appreciated in the landmark judgement of the Federal Shariat Court (FSC) regarding domestic abuse in Muhammad Ibrahim Khan v. Province of Punjab. Nevertheless incomplete, and out of context passages of Quran and Hadith are oft-interpretated incorrectly to turn marital rape into a woman’s obligation. Unfortunately, this is done systemically by some “scholars” for economic gain, by looking to build an audience with the demographic of young men who are already taught to objectify women as their property.
The media also plays a large part in misrepresenting the picture, this extends beyond not bringing attention to marital rape survivors; independent research has found that Pakistani national media does not report 9/10 cases of violence against women. Apart from creating a false sense of security, it criminally undermines the issues faced by women, and limits discussions about violence against women that would naturally stem from such coverage. However when popular media does report a rape, research by JDSS shows that the media often forgoes ethics, such as disclosing names of victims, their pictures or other personal information without their permission.
A systemic overhaul must take place to allow not only criminalization on paper but to create conditions which allow victims any opportunity to speak up and pursue the legal means in the first place. As Bertrand Russell put it in his 1929 book Marriage and Morals “the total amount of undesired sex endured by women is probably greater in marriage than in prostitution." Unfortunately, this situation seems to be endemic for women in Pakistan. To contrast how far behind Pakistan is in providing its citizens’ their human rights; Poland criminalized marital rape all the way back in 1932, in Pakistan the legal and moral debate is yet to even properly start.