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High Court: Why should marital rape not be declared illegal?

  • Published at 02:33 pm November 3rd, 2020
High Court-HC-court
File photo of the High Court Dhaka Tribune

The ruling comes days after a 14-year-old schoolgirl died from excessive bleeding from her genitals five weeks into her marriage

The High Court has issued a ruling asking the government why the legality of marital rape of women and girls aged over 13 years in the country’s rape legislation should not be declared unconstitutional. 

The court also asked why the legislation should be declared in violation of fundamental rights to equality and non-discrimination of married women and girls.

The High Court bench of Justice Md Mojibur Rahman Miah and Justice Mohi Uddin issued the ruling on Tuesday after hearing a writ petition on the matter.

Advocate ZI Khan Panna, Barrister Sara Hossain, Barrister Jenefa Jabbar and Barrister Sharmin Akter stood for the writ petition.

Earlier on Sunday, the writ petition was filed on behalf of four human rights and development organizations – Bangladesh Legal Aid and Services Trust (BLAST), Brac, Naripokkho and Manusher Jonno Foundation.

The writ argued that exceptions to Sections 375 and 376 of the Penal Code and the explanation to Section 9 (1) of Women and Children Repression Prevention Act, 2000 dismiss the offence of rape in case of married women or girls, which is discriminatory on the basis of gender, and in particular of marital status. 

The exceptions to Sections 375 and 376 of the Penal Code exempt a man from marital rape if his wife is above 13 years of age, and do not allow the women and girls aged above 13 to take legal action against their husbands if they are forced into intercourse.

Also Read - How a child bride died 34 days after marriage

The explanation to Section 9(1) of Women and Children Repression Prevention Act, 2000 says a man will be accused of rape when he forces a girl under 16 years into sexual intercourse – only if it is out of wedlock.

The petitioners argued that these violate the rights of married women and girls as guaranteed under Articles 27, 28, 31, 32, and 35 (5) of the constitution, which ensure equal protection of law for all citizens, equal rights for women as men, right to life and personal liberty for everyone, equal protection from torture or to cruel, inhuman or degrading punishment or treatment. 

The petitioners sought ruling and directive to repeal the exception to Section 375, and amend the relevant part of Section 376 of the Penal Code and Section 9 (1) of the Women and Children Repression Prevention Act, 2000.

On the same day, a legal notice was also sent to the government seeking amendment of its various laws and inclusion of provisions with a view to stopping marital rape.

Both legal processes appeared over the same issue, in response to the death of a 14-year-old child bride from excessive bleeding from her genitals five weeks into her marriage.

The schoolgirl from Tangail died on October 25 while undergoing treatment at the Dhaka Medical College Hospital (DMCH). 

The incident came into BLAST’s attention via several news reports. 

The reports further stated that on September 20, the schoolgirl was marriage off to a 34-year-old man, an expatriate working in the UAE, and that she had been bleeding from the first night of her marriage.

Nevertheless, the husband reportedly continued to have intercourse with her, disregarding her injuries, while her in-laws sought treatment for her from a village doctor (Kabiraj), and failed to provide her with proper medical treatment until October 22.

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