Sexual intercourse by marrying without the consent of the girl should be treated as rape
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Sexual intercourse by marrying without the consent of the girl should be treated as rape – Md Zia Uddin

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If a man marries a woman without her permission and without her free consent and the husband commits intercourse with his wife, will he be considered a rapist? My view is- it be supposed to be count as a rape. Following I describe my argument –

First we need to give an example of a case in England. R v R (1992) is the established case in UK where husband was convicted for rape. Other than in Bangladesh, husband can’t convict for rape because Bangladesh follow the Islamic rules in this region.  In many countries of the world, even if the husband is accused of rape, it is not prevalent in Bangladesh also Bangladeshi law does not allow this. The reason is that Bangladesh follows Islamic law where the husband can have sex with the wife at any time for which the husband does not need the consent of the wife. Now the question is if there is no consent of the girls in the marriage then why the husband will not be the accused in the rape case?

Example-

A is a girl who didn’t want to get married but she was forced to marry. She got married to b without the permission of A or without her free consent. Now, B had sex with his wife without the permission of his wife (A). Can a case of rape be filed against B then?

Now we need to see what the customary law of Bangladesh and hadith said about marriage consent.According to Islamic set of laws marital rape are not allow. The husband may have intercourse with his wife without his consent. According to Islamic rules, without free consent and wills of man and woman; marriage will be illegal. Also according to Shariah law, boy and girl’s free consort is required for marriage. And marriage is counted as a legal contract.  “During the life of the Prophet Muhammad (peace is upon him) one of his companions, Ibn Abbas, spoke to him about a female who reported that her father had forced her to marry without her consent. Narration of this hadith (saying of the Prophet) it states that she responded, ‘Actually, I accept this marriage, but I wanted to let women know that parents have no right to force a husband on them.’ The Prophet Muhammad (peace be upon him) said to avoid what is doubtful. As consent is necessary for a valid marriage in Islam, every effort should be made to ensure that both the bride and groom consent willing and explicitly, rather than through silence.”  Also according to Abul Kader V Mst. Salima , marriage is civil contract.  According to section -14 of The Contract Act (1872), free consent is required for a civil contract to be valid. Civil contracts are not valid without free consent. 

According to Bangladeshi law and Muslim law, if the wife is not allowed to have sex with the wife after marriage, she will not break any law. Muslim law goes on to define marriages, saying that free permission of a boy and daughter is required for marriage. That means marriage will not take place if the boy or daughter is not allowed. 

Penal Code-1860, Section-375 has given a clear definition of rape. Furthermore, section- 375 of Penal Code of Bangladesh established, husband is not let to convict for rape what’s more it’s forcefully or not. Penal Code, Section – 375 states that you do not need permission to have sex with your wife. Because, The Penal Code of Bangladesh and Muslim law says that, permission is not required to have sexual intercourse with “wife”. That’s means he needs consent to have sex with someone other than his wife.

 If the marriage is not valid, then sexual intercourse with the wife after marriage cannot be called valid. 

The question is what is meant by wife according to the conventional law and hadith? According to Muslim law and the hadith narrated from Hazrat Muhammad (sm), marriage without the consent of both parties is not valid. And if she is not eligible for marriage, she cannot be called a wife. Therefore, according to the penal code, section 375, it should be considered as rape.

In the above case we find that the daughter did not have free will in marriage. Since marriage is done against the will of the daughter, according to Islamic law of marriage, the marriage is annulled. Since this is a canceled marriage, they are not spouses. 

Islamic law only allows for sexual intercourse without the consent of the spouse, if the husband and wife. Unless the spouse is in a relationship, this law does not apply. If the wife does not have permission, the marriage mentioned above should be counted as annulment and the husband should be counted as invalid and rapist.

If it will be count as a rape, there are no conflict with Islamic rules and section-375 of Penal Code of Bangladesh. If this sex is not count as rape, day by day these types of marital rape will be increasing in our society. And rapist will forcefully marry a girl and commit sexual intercourse with them which is not desirable in our society. After accomplish rapist demand, they divorce these girls. These types of circumstances rising divorce day by day and these girls’ bear there complete life.  

In conclusion, through the above discussion, we understand that Islamic law does not allow marriage without the permission of the girl. Therefore, if a man marries a woman without her permission, he should be considered as accused of rape. And this kind of married rapist should be judged by the law of conventional rape.

Md Zia Uddin

Work at – Junior Associate , Fox Mandal & Associates

 Former Intern- BLAST 

LLB (North South University)


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