Marital rape killed a child in our country. Why is it still legal?

On October 25, 2020, a 14-year-old girl from the Kalia village in Basail upazila, Tangail, reportedly died due to excessive genital bleeding after being admitted at Dhaka Medical College Hospital (DMCH).

The girl has been identified by the police and locals as Nurnahar, a student at the local Kalia Biddaloy. Nurnahar belonged to a poor family. Since both her parents were full-time labourers and would frequently quarrel with one another (with her father being absent most of the time), Nurnahar's maternal grandfather, Lal Khan, brought her to his home in Kalia village when she was aged four, and she had been living with him ever since. He enrolled his granddaughter in school, and was paying for her upkeep and education from his daily wages as a labourer. Nurnahar got promoted to eighth grade this year and was known as a meritorious student, coming second in her class.

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The marital license to rape

The ongoing pandemic has magnified the struggles of low-income families, and Lal Khan's household was no exception. On September 20, Nurnahar was contracted into marriage with a 34/35-year-old man named Rajib Khan, hailing from a nearby village in Kauljani union. As Rajib is an expatriate working in the United Arab Emirates, currently visiting his homeland, Nurnahar's family was incentivised to marry her off to him due to his relatively high earnings. Lal Khan spent Tk 30,000 on her wedding. Since Nurnahar had not reached the minimum age of marriage under the Child Marriage Restraint Act 2017 (eighteen), the marriage was not registered by the families. Nurnahar was then taken to her in-laws' house in Fulki Paschimpara village, Basail.

Lal Khan told Dhaka Tribune, "My granddaughter informed us that she had been receiving treatment from a village doctor [kabiraj], since she told her in-laws that she has been bleeding from the first night of her marriage." Far from ensuring proper medical treatment, Rajib continued having sexual intercourse with Nurnahar, disregarding the girl's injurious condition. As the bleeding did not stop, the families discussed Nurnahar's condition and afterwards her mother-in-law fed the girl some medicine from the kabiraj. It is only when Nurnahar's condition took a dangerous turn that her in-laws took her to a private clinic in Tangail on October 22, and tactfully handed over the girl's custody back to her family and relieved themselves of further responsibility. As her condition kept on deteriorating, she was then shifted to Kumudini Hospital in Mirzapur.

Meanwhile, Nurnahar's family was struggling to finance the treatment, and the local villages pooled together Tk 60,000 for her treatment. Afterwards, Nurnahar was finally transferred to DMCH for better treatment, but by then it was too late and she ultimately succumbed to her injuries on October 25. The next day, she was buried at a local cemetery near her grandfather's house in Kalia, after an autopsy had been conducted. Lal Khan blamed Rajib Khan for the death of his granddaughter. Rajib did not even bother to show up at the girl's funeral.

Bilkis Begum, Nurnahar's mother-in-law, told the press that the girl was "possessed by a demon" and that is what apparently caused the genital bleeding. Dr Firozur Rahman, Basail Upazila Health and Family Planning Officer, said that panic and fear is a natural reaction for girls during their first sexual encounter and that genital bleeding often occurs with those who get married early. In order to stop the bleeding, a gynaecologist ought to be consulted immediately.

The girl's in-laws have proposed to "settle" the matter through shalish. However, Nurnahar's family has reportedly filed a complaint with the Basail police station against her in-laws—although, in contracting an underage girl into marriage, they themselves committed an offence under section 8 of the Child Marriage Restraint Act 2017 (CMRA), punishable with up to two years' imprisonment and/or Tk 50,000 fine. It did not matter that Nurnahar was the second-best student in her class and could one day have been their ticket out of poverty. What only mattered, even to a grandfather who had admirably been financing her education on his own initiative, was the economic prospects of creating marital ties with an expatriate grandson-in-law.  

While it should be clear to anyone that Nurnahar died after being forced to have intercourse with her husband, the sad thing is, our law would not consider Rajib's action to be rape as marital rape of wives above the age of 13 is specifically excluded from the offence of rape in section 375 of the Penal Code 1860, which defines rape. Furthermore, according to section 376 of the Code, which originally set out the punishment for rape, marital rape is only punishable if the wife is under the age of 12, and there can only be a maximum of two years' imprisonment or even just a fine. These provisions were introduced by our British colonisers at a time when Victorian morality dictated that wives ought to be treated as the husband's property, so the very concept of holding a man liable for raping their own property was seen to be absurd.

Our country has introduced special laws on violence against women (including rape) three times since the independence: first in 1983, then in 1995, and finally in 2000. However, each time, our lawmakers consciously chose to retain the marital rape exemption clause in the Penal Code, instead of repealing it, while Britain for its part criminalised marital rape in 1991. Pakistan, which also inherited the same marital rape exemption clause, removed it in 2006.

The National Survey on Violence Against Women (2015) found that 27.3 percent of ever-married women experienced sexual violence perpetrated by their husbands during their lifetime, including forced sexual intercourse. This means, out of the 19,987 ever-married women interviewed by the Bangladesh Bureau of Statistics, over 5,390 women said they were raped by their husbands. In retaining the marital rape exemption clause, we are telling these women, and the thousands of other women and girls who are undoubtedly subjected to marital rape, that they have no right to seek justice for being raped. We are reinforcing the archaic notion that wives are the chattels of their husbands and upon signing the marriage contract, a wife perpetually and irrevocably consents to sexual intercourse with her husband whenever he so demands. We are forced to accept that even when a victim of child marriage, like Nurnahar, dies as a result of marital rape, this forceful intercourse is not a crime, simply because the man happened to be her "husband"—as a result of a forced marriage in which she most certainly had no say.

The one offence that Rajib, and others in his position, could be charged with is "contracting a child marriage" under section 7 of the CMRA, the maximum punishment for which is two years' imprisonment and can also just be an order of fine. Therefore, if any sex-crazed man wants to rape a girl every night of the week with total legal immunity, child marriage continues to be the perfect option—there is always plenty of unwanted daughters to choose from and no police station or court could file a marital rape case against him.

This is our law. This is our reality. We must know it. We must loathe it. We must challenge it.



 

Taqbir Huda is a Research Specialist at Bangladesh Legal Aid and Services Trust (BLAST) and leads the Rape Law Reform Now campaign. Email: taqbirhuda@gmail.com

(This article relies on news reports relating to Nurnahar's death as published by Dhaka Tribune, Bangla Tribune and Jugantor.)