Asif Hashmi

Can a husband be accused of raping his wife

 The common law theory which exempts a husband from the charge of raping his own wife was put forwarded by sir Thomas Hale, who contented that husbands are not liable for the rape upon his own wife. In matrimonial relations, with their mutual consent, wife had given up herself to her husband. Thus, an implied consent is the basis of this spousal exemption.

For many years, the law exempted the marital rape from being an offence. Consent given during a marriage contract was not revocable. The consent of women, gave men absolute legal authority to force their wives for having sex, at any time. The institution of marriage and conjugal relations were private matters and we’re being dealt at home.

Many countries including USA have formulated laws against spousal rape without any specific exemption.. Almost, all the states, recognize rape within marriage as an offence and prosecute the husband in the same way as the rape between the strangers However, two states still give exemption to marital rape.

As well as my country is concerned, a husband can not  be accused of raping his legal wife without her matrimonial consent. Forced cohabitation, in our laws, is not a crime Thus, forced rape in the institution of marriage continues to be legal despite of the concerns by many quarters. However, there are certain instances of rape within marriage  which are crimes and punishable in the eyes of laws. Firstly, if a husband does sexual intercourse with a minor wife, irrespective of the fact, with or without her consent. The husband Can be charged under section 376 Pakistan penal code and will be punished, accordingly.

Secondly, if a wife living separately from her husband and the case for legal separation is under process, the sexual intercourse with a wife by husband without her consent is a punishable offence under the same section (376),Pakistan penal code. Occasionally, some women accuse their husbands for unnatural offences under section 377, Pakistan penal code. But, now, husbands claim protection against sodomy by his wife.

The biggest hurdle against the crime of marital rape, in Pakistan, is that it is considered against religious and traditional values as well as against the sanctity of the sacred institution of marriage. Another reason, sexual crime within the marriages is really an uphill task to prove, hence, people tend to overlook it. Such grounds should not be taken into consideration as difficulty in proving the crime does not mean that its  criminals should not be prosecuted.

In almost all the progressive countries, sexual act against the consent of the wife is  a punishable crime.  Now, husbands enjoy no absolute authority over their wives as well as the conjugal relations are concerned. Wives can prosecute their husbands for marital rape. To conclude,  physical relations are necessary part of married life but consent of wife I absolutely necessary for the purpose.