First ever conviction on Marital Rape opening new doors of discussion: A religious and legal context

January 20 marked the date when a landmark verdict from a session court in Karachi changed the landscape of the judicial approach in terms of intimate partner violence.

It has been precisely two weeks since the court announced in “The State vs Javed” that the “ocular version is also supported by the medical evidence which shows that the victim was a habitual passive agent of sodomy.” Sher Bano from Karachi lodged a complaint against her husband Javed at the police station about him subjecting her to sodomy despite her attempts to stop her. About two months after their marriage, she informed her mother-in-law, who didn’t say anything to him, she said, adding that then she disclosed her ordeal to her sister and brother, after which she lodged an FIR against her husband on November 23, 2022.

Garnering a fierce debate online, this also raised a couple of questions in my mind. If this was a case of sodomy, then why is it dubbed as a marital rape? Or are they both linked? I contacted Barrister Haya Zahid from the Legal Aid Society to hear her explain the legal complexities around these terms.
Haya was welcoming and answered all my questions which helped me shape this article. Legal Aid Society has now been working for the last one decade. It started as a free legal aid clinic for the marginalized sections of society, especially women and children, and has now spread all over Sindh. In the last few years, they have proceeded with over a hundred cases of sexual violence, most including charges of sodomy and rape.

Haya’s works mostly surround policy and reform. Staying true to the mission statement to connect vulnerable and disempowered end users of justice with effective and expedient services for the delivery of justice, she runs the legal aid clinic efficiently and effectively. Her team includes 33 lawyers providing free services across Sindh. For instance, she is working on Fatima from Ranipur’s case, and her team is documenting the delays and lapses of the legal system. Apart from compiling research-based data, they are training judges and prosecutors. They even assist prosecutors, as they did in The State vs Javed case, Advocate Behzad Akbar from Legal Aid Society was writing arguments for the public prosecutor because they must proceed as sexual violence is a crime against the state. They train prosecutors for such cases, helping them in preparing the case.

“The reason we are all very excited is that in the current scenario in Pakistan, intimate partner violence is more common than rapes conducted by strangers” she started by setting the premise. “Spousal sexual abuse is physically and mentally more damaging. Women usually have tended to remain silent. According to our records, they come to our legal aid office to find out what they can do and most of them opt to tread the path of obtaining ‘khula’ which is accompanied by economic disadvantages. The majority of them do not pursue cases for protection against domestic violence let alone speaking about the intimate partner violence that they go through.”

Haya made it a point to mention that most of their clients of sodomy have been male children. Their parents feel less stigmatized in fighting for justice compared to the parents of female children. Sher Bano’s plea was refreshing in a way that she very soon left her husband after the marriage, informed her family about what she had to face and that this is not normal and fought the good fight. She put up with all the medical and legal requirements and despite certain minor discrepancies in her testimony, the judge had to take a broader approach as the claims were substantiated.

The State vs Javed

In the case the victim Sher Bano filed a case against her husband after approximately four months of marriage because he used to commit oral and anal sex despite her disapproval. She confided in her mother-in-law but was ignored. She eventually took the matter home, consulted a doctor and with the support of her family, lodged an FIR against her husband. She remained steadfast during the trial as the husband and his sisters accused her of being in love with someone else and therefore wrongly blamed his husband for sodomizing her. They even tried to use piles, which she suffered from, as an excuse to prove her claim wrong. Her grit is as Haya said, “music to the ears” because she emerged victorious.

What is Marital Rape in Pakistan’s constitution?

High Court Advocate Nimra Arshad in an explainer recorded by Dawn News sheds light on the term. There is still no such term as Marital Rape defined by the law but after the Criminal Law Amendment Act 2021, the definition of rape was broadened in Article 375 of Pakistan Penal Code. Previously, the implication of the law was that rape is when a man has non-consensual sex with a woman who is not his wife but now the definition involves non-consensual sex between a man and a woman irrespective of what relation they share.

The punishment is laid out in Article 376 of PPC which can be a death sentence or life imprisonment for 10-25 years.

Criticism over three-year punishment

Barrister Haya Zahid explained that rape has more punishment in law as compared to sodomy. Because the primary abuse in this case, proven in front of the court, is sodomy, the case proceeded in line with the Criminal Law Amendment Act 2021. This law is pivotal in this case as the definition of rape was totally reformed in this amendment and was hence used in this case. According to an amendment in article 375, a person is said to have committed rape if the person penetrates his penis, inserts, or manipulates any object or part of the body to any extent into the vagina, mouth, urethra or anus of another person against their will, without consent, or consent being taken with coercion. Considering this a case of sodomy, it was still treated as marital rape because the victim was in a spousal relation with the offender and their marriage was intact when she filed the case. Resultantly, the court declared that the accused was not able to prove his point of any personal enmity that the victim (the wife) had an affair with somebody else and therefore, she implicated him falsely. “The prosecution has, thus succeeded in proving the charge against the accused only under section 377 Pakistan Penal Code beyond a reasonable shadow of doubt, therefore this point is answered accordingly,” the final verdict declared.

“This has become a seminal case where conviction of a spouse took place for sexual abuse,” Haya said enthusiastically.

They can recontest the conviction of three years which is much less than that of rape, but this may damage the case as it would be put to trial again and because the victim has gone through a lot, this will be draining for her too.

Response over conviction

Social media is mostly celebrating the verdict. BOL Network contacted LAS, and Advocate Safia Lakho represented them in their morning session where she not only explained the proceedings of the case but explained how this case will be a trailblazer in the legal history of Pakistan. “So many women, oblivious of the law itself, silently enduring the pain daily, have got to know about their rights through this judgment and it is a great achievement indeed,” she said.

However, some critics are saying this is not a case of marital rape, this is sodomy. Haya reinstated, “The definition of rape has changed as per law; this is rape happening in the context of a spousal relationship which is the highest form of intimate partner violence that there can be. We are acknowledging it as the first ever conviction of marital rape under the changed definition of rape which is in place since 2021”.

Interpretation of the verdict in the Islamic context

To understand the popular claims and interpretations used by the masses to either condemn or appreciate the conviction of marital rape I talked to multiple scholars including Mufti Mohammad Sohail Ahmad who is an MPhil in Usool-e-Din (Principles of Religion) from International Islamic University, Islamabad, now serving in Nottingham, UK. He delineated the basic principles as laid by the main text of the Qur’an: In Islamic schools of thought, there are two ways to go about it: Hadd and Tazir.

Hadd is equivalent to a death sentence, implying that strict action needs to be taken for the severity of the crime. Tazir on the other hand is a punishment for an offence that is culpable, and this is to be decided by the ruler or a judge according to the severity of the crime. It is strongly impermissible for a man to have sexual intercourse with his wife when she is menstruating. The other thing that is frowned upon by the laws of Islam is sodomy or unnatural sex- a crime strongly punishable by Islam.

Three-quarters of Islamic schools of thought consider Hadd to be implemented in cases of sodomy.

The other scholar I consulted was Dr. Fazal-e-Hannan who is a PhD from Punjab University, Lahore and is serving as Sheik-ul-Hadith in Jamia Nazamia, Lahore. The unanimous response lays out the condemnation of the act of sodomy and applause for the verdict of the court. “It is good precedent set by the court,” Mufti Sohil Ahmad asserted, “making most of the latest medical and technological advancement to identify these crimes is a welcome change in Pakistan.”

As for the fact of a man forcing himself over his wife and inflicting pain upon her, they agreed that it is liable for a punishment. Islam stresses that husbands ought to be kind and considerate about the emotional, mental, and physical state of the wife. Allah says, “and live with them in kindness” [Quran 4:19] It is even stressed by the Prophet (SAW) as he said: “Be kind to your wives.” [Al-Bukhari and Muslim].

Javed Ahmed Ghamidi, in one of his lectures, emphasized that the relationship of a husband and wife is mutual and there is no other opinion about it.

However, the bottom line is that there are protocols of Islam that need to be followed for sexual intimacy. If violated, then needs to be dealt with accordingly.

Repudiation of implied consent theory

Advocate Nimra Arshad in her explainer describes that many people use religion to describe their chauvinistic views about the concept of marital rape whereas Islam is the same religion which provides women the protection, kindness and care they deserve in a marriage and if that is not given, there is a reasonable exit available too.

Pakistan’s law is essentially an extension of British law as proposed by Sir Matthew Hale who believed that a marriage perpetually gives man consent to treat his wife as a property. This implied consent theory is long been amended in the UK under Sexual Offences Act 2003 where spousal rape now falls under sexual assault, but the remnants of that law are very much intact in our country.

Final thoughts

Sher Bano has paved the way for women to not submit to unjust and violent behaviour in the name of marriage. This case also highlights the importance of support of the family which makes a woman invincible, especially in a society like ours. As much as raising awareness is the duty of the state, it is equally a compulsion for it to ensure the safety of citizens by making pertinent, pragmatic, and bold laws. Not recognizing marital rape as the highest form of intimate partner violence is a fact that remains in place till today.