Picture a legal landscape where this question no longer echoes in the hallowed halls of justice but instead takes center stage in a courtroom, shattering the veils of silence that have obscured a dark corner of intimate relationships for far too long. Let’s explore the legal details of the case that shatters conventions —the first-ever recognized instance of marital rape in the Islamic Republic of Pakistan. We will be exploring the case’s background, steering through the complexities of justice in previous cases of the same nature, challenging cultural and Islamic viewpoints, and rewriting the narrative on marital relationships.

Case Background: “The State Vs Javed (accused) 2022”

Before plunging into the legal twists and turns of the case, let’s scrutinize its foundational elements—facts that serve as our compass, offering insights into the case’s unique standing and discerning distinctions that set it apart from previous unsuccessful attempts.

In this historic legal development, Javed faced a three-year sentence under Section 377 for marital rape, marking the first conviction of its kind in Pakistan. The oppressor’s lawyer, Bahzad Akbar, strategically leveraged a 2021 amendment that broadened the definition of rape to support the case. Since their marriage in July 2022, Javed forced his wife into non-consensual acts, including oral and anal sex. The survivor, facing ongoing abuse, filed a police complaint in November 2022, leading to the landmark legal proceedings.

The additional sessions judge, Ashraf Hussain Khowaja, acknowledged the survivor’s compelling testimony and evidence, resulting in Javed’s conviction. The verdict included a three-year prison term and a Rs30,000 (£84.5) fine, with an additional month of imprisonment for non-payment. This historic case, with no prior convictions for marital rape in Pakistan, signals a transformative moment in legal discourse and cultural perspectives on intimate relationships within the country.

Legal Quandaries and Precedents Unveiled

The case involving Javed in Pakistan shines a light on critical legal questions regarding marital rape, a topic not explicitly addressed in the country’s legal framework. The proceedings deal with the interpretation and application of the 2021 amendment to Section 377, broadening the definition of rape. While the Pakistan Penal Code (PPC) defines rape under Section 375, the absence of specific legislation addressing forced sex within marriages adds complexity to the case.

How complicated is it to comprehend the essence of rape? Under s.375 of PPC, rape is the act of engaging in sexual intercourse with a person without their consent—no ifs, and no buts. However, within the complexities of the Pakistani justice system, the question of whether a person can be subjected to rape by their spouse introduced uncertainties and challenges.

The previous failed precedent, as seen in the case of Kainaat Soomro, involved the invocation of the sanctity of marriage under Islam to evade charges of rape, highlighting the ambiguity within the legal framework. Kainat Soomro’s international struggle for justice after her gang rape at 13 took a distressing turn when the alleged rapists used a ceremonial marriage to evade punishment. The cleric, invoking Islamic law, endorsed the marriage, disregarding Kainat’s age and legal standards. The trial exposed the grim reality of societal and legal challenges for sexual violence survivors, as Kainat faced accusations of extramarital sex during the trial. The legal system’s failure to recognize marital rape as a crime in Kainat’s case highlights the broader struggle for justice in Pakistan. The ongoing appeals by the Soomro family emphasize the systemic challenges faced by survivors and their families, accentuating the need for legal reform and societal awareness about consent and sexual violence within marriage in Pakistan.

Multifaceted Dimensions of Marital Rape: Societal, Legal, Cultural, and Islamic Perspectives in Pakistan

Examining the multifaceted issue of marital rape in Pakistan necessitates a comprehensive exploration encompassing intricate discussions across legal, cultural, and religious dimensions, each playing a crucial role in understanding and addressing this pervasive problem.

Legal Dimension: 

Ann J. Cahill, an American philosopher, contributes to the legal dimension by highlighting the erosive impact of rape on victims’ agency and personhood. Legally, the absence of explicit mention of marital rape in the Pakistan Penal Code poses a significant challenge. Sara Malkani, a high court lawyer, notes the lack of recorded convictions and the rarity of official complaints progressing to trial, highlighting legal barriers to justice. The legal framework must be fortified to explicitly cover marital rape and ensure effective prosecution.

Cultural Dimension:

In Pakistan, marital rape remains a taboo topic, often dismissed or avoided. Consent within the institution of marriage, particularly in terms of sexual interactions, is rarely acknowledged, featuring the deeply entrenched patriarchal nature of Pakistani society. A 2009 study based on 152 cases disclosed that approximately 33-43 percent of married women in Pakistan experienced marital rape. Rubeena Zakar, a writer and academic, sheds light on the deeply entrenched patriarchal nature of Pakistani society, where men often perceive women as their property. The fear of public shame and the loss of family honor contributes to the cultural silence surrounding marital rape. Kersti Yllö and M. G., in their 2016 book, emphasize the universal occurrence of marital rape across cultures, underlining the variations in perceptions and understanding. Zakar & Krämer conducted research on Women’s Coping Strategies Against Spousal Violence in Pakistan, revealing that women often resort to emotion-focused strategies, particularly spiritual therapies, to navigate the impact of violence. Despite a lack of awareness surrounding marital rape, the fear of public shame and the loss of family honor contribute to the ineffectiveness of its criminalization in Pakistan.

Islamic Dimension:

Adding to the complexity, Islamic perspectives are sometimes invoked to rationalize such crimes under the guise of fulfilling responsibilities towards husbands. This knotty interplay of societal norms, legal provisions, and religious beliefs underscores the challenges in addressing and rectifying the pervasive silence and inaction surrounding marital rape in Pakistan. Right-Wing Islamic cleric Haroon Ghazi in Pakistan contends that signing the marriage covenant implies consent to sex, while emphasizing the immorality of spousal violence in Islam. Due to the belief that marital matters are entirely private, many men reject criminalizing such actions as impractical. In Karachi, a survivor of marital rape, Shireen Ferozepurwalla, explained her decision to divorce, citing her husband’s manipulation of religious beliefs.

On the contrary, Islamic principles, such as the doctrine of mu’asyarah bil ma’ruf, emphasize the importance of respecting the needs and willingness of the wife in intimate matters. Balancing Islamic principles with legal frameworks is essential to dispel misconceptions and promote a healthier approach to marital relations. Essentially, it obliges the husband to fulfill his wife’s sexual desires while strictly prohibiting any attempt to force her into intimate acts against her will. In this context, being a good husband entails making thoughtful choices and demonstrating patience (sabr), with the understanding that sacrificing one’s own desires may be necessary, rather than compromising the well-being and consent of the wife. This perspective stands in stark contrast to the toxic religious beliefs some men hold regarding marital rape. Rejecting the notion that religious doctrines permit forceful actions, the emphasis is placed on the husband’s responsibility to prioritize the well-being and autonomy of the wife, advancing a healthier and more respectful approach to marital relations.

Concluding Implications towards a compassionate future: 

In charting a course towards a future free from the shadows of marital rape in Pakistan, a holistic and collective approach is imperative. A potential solution lies in facilitating collaboration with international organizations and countries that have successfully implemented legal reforms and awareness campaigns addressing marital rape is essential. Mobilizing international pressure to encourage Pakistan to uphold human rights standards and enact effective measures to combat marital rape is a key aspect of international collaboration.

In pursuit of legal reforms, there exists a compelling need to expressly codify the criminalization of marital rape within the legislative framework of the Pakistan Penal Code 1860. This necessitates a strategic advocacy effort aimed at establishing a precise and unequivocal legal foundation for the prosecution of individuals accused of marital rape. Furthermore, the introduction of specialized training initiatives personalized for judges, legal practitioners, and law enforcement officials is essential. These programs should be designed to augment their comprehension of the gray areas of marital rape laws, thereby ensuring equitable handling of cases with due regard to sensitivity.

Initiating interfaith dialogues among religious leaders is crucial to cultivate a shared understanding of the sanctity of marital relations, emphasizing the importance of mutual consent. Collaborating with scholars to interpret religious texts in a manner that upholds principles of respect, consent, and autonomy within marital relationships contributes to essential religious reforms. This collaborative effort, when combined with sustained financial support for NGOs like the Aurat Foundation, Shirkat Gah, and War Against Rape is critical for survivor assistance, awareness campaigns, and advocacy for legal reforms. Collaborations between these NGOs and religious leaders are essential to promote an in-depth understanding of religious teachings that respect the autonomy of spouses. Simultaneously, addressing societal norms involves integrating sex education into school curricula to educate youth on consent, healthy relationships, and legal aspects of sexual violence. Community workshops and awareness campaigns challenge cultural taboos, encouraging open discussions on consent and promoting an understanding of marital rights and responsibilities. This combined strategy tackles legal, cultural, and educational dimensions, cultivating a society where marital rape is condemned, survivors are supported, and awareness prevails.

To comprehensively address the issue of marital rape in Pakistan, government involvement is central, necessitating the allocation of specific funds to address marital rape through survivor rehabilitation, awareness campaigns, and the enhancement of infrastructure, including specialized units within law enforcement agencies. At the same time, media advocacy plays a vital role, as collaboration with media outlets is necessary to portray healthy marital relationships and dispel stereotypes perpetuating misconceptions about consent and spousal rights. Sharing empowering stories of survivors through various media channels becomes a powerful tool to break the silence, reduce stigma, and encourage others to come forward. Encouraging local community leaders to publicly endorse initiatives aimed at eradicating marital rape contributes significantly to community engagement, advancing an environment where the silence surrounding this issue can be effectively dismantled. These collective efforts, encompassing government action, media influence, and community engagement, pave the way for tangible reforms in addressing and preventing marital rape.

Let our joint efforts be a symbol of the unyielding strength found in survivors. In the halls of justice, may the voices of the oppressed resound, breaking the chains of silence and paving the way for a future filled with compassion. For each survivor of marital rape, for every woman who has faced unimaginable pain, let our actions guide us towards a day where the shadows of fear fade away. Imagine a world where the echoes of justice drown out the haunting whispers of abuse, ensuring a future where our daughters inherit a legacy free from the grip of silence. In our advocacy, we recognize that those affected could be our own, and as we strive for justice, we come together not just as agents of change but as guardians forging a compassionate dawn. In this collective journey, no one walks alone in the shadow of silence, and every cry finds resonance in the promise of a brighter tomorrow.

References:

1. Pakistan Penal Code 1860, sections 375, 376, and 377.
2. Ann J. Cahill, “Rethinking Rape” (2001).
3. Sara Malkani, advocacy advisor for Asia and Advocate High court
4. Rubeena Zakar, “Intimate Partner Violence Against Women and Its Implications For Women’s Health in Pakistan.”
5. Kersti Yllö and M. G., “Marital Rape” (2016).
6. Zakar & Krämer, “Women’s Coping Strategies Against Spousal Violence in Pakistan.”
7.  Deutsche Welle (DW) News, “Why Pakistani Women won’t talk about marital rape” (2022).