The Marital Rape Contradiction in Bangladesh's Criminal Law

Md. Fuad Hasan: Imagine two adult women arriving at a police station with the same complaint. Both say they were forced into sexual intercourse despite refusing consent. Their experiences of fear and violation are no different. Yet one question could fundamentally alter their legal position: Was the accused man her husband?
For many women in Bangladesh, the answer can determine whether the conduct falls within the legal definition of rape. Strangely, a provision buried in the Code of Criminal Procedure, 1898 (CrPC), appears to acknowledge the very offence from which other laws continue to exempt many husbands. Section 561 of the CrPC specifically addresses rape by a husband. It reserves the power to take cognizance of such an offence, or send the husband for trial, to the Chief Metropolitan Magistrate or Chief Judicial Magistrate. Where either directs a police investigation under the provision, the investigating officer must be at least of inspector rank. Section 561 does not itself create an offence. It regulates procedure where an offence is otherwise recognized by law. Nevertheless, its survival exposes an uncomfortable question about how Bangladesh’s different criminal statutes fit together.
What the numbers reveal:
According to the Bangladesh Bureau of Statistics and UNFPA's Violence Against Women Survey 2024,
based on interviews with 27,476 women; 29% of ever-married women experienced sexual violence by a
current or former husband during their lifetime, while approximately 9% experienced it in the preceding
year. These are survey findings on sexual violence, not counts of legally established marital-rape offences.
The survey also found that 64% of women experiencing physical or sexual violence by husbands had
never disclosed their experiences. Behind that silence lie concerns about family reputation, financial
dependence, retaliation and the consequences of reporting someone with whom a woman shares a home.
A 2026 study published in International Criminology similarly documents how victim-blaming, social
pressures and limited support services discourage survivors of domestic violence from seeking assistance.
The legal contradiction:
Section 375 of the Penal Code, 1860 excludes intercourse by a man with his wife from rape where she is
not under 13 years of age. Section 376 contains a separate marital sentencing provision referring to wives
not under 12, revealing how different age thresholds survive within the same colonial-era legislation.
Bangladesh's Women and Children Repression Prevention (Amendment) Act, 2026, enacted on April 10,
retained the condition of intercourse outside marriage in its explanation of rape involving women older
than 16. It separately addresses sexual acts involving children under 16, regardless of consent.
Meanwhile, the Domestic Violence (Prevention and Protection) Act, 2010 recognizes sexual abuse within
family relationships and allows courts to issue protection and compensation orders. Such remedies are
significant, but protection from domestic violence is not equivalent to recognizing every act of forced
intercourse within marriage as rape.

The overlooked significance of the 2026 amendment:

It introduced Section 9B, prescribing up to seven years' rigorous imprisonment for sexual acts induced by
a promise of marriage in specified circumstances involving a relationship of trust and no physical force.

The provision itself is controversial. In August 2026, the High Court questioned its constitutionality,
following arguments concerning consent, equality and criminalization of intimate relationships. This was
a judicial rule seeking an explanation, not a final decision invalidating the provision.

The two offences involve different legal questions and should not be equated. Yet the contrast deserves
attention: Parliament has revisited sexual conduct involving a promise of marriage while retaining a
marriage-based exclusion in its rape definition.

Why should marriage continue to change the legal significance of consent?

This issue reached the High Court in November 2020, following the reported death of a 14-year-old child
bride in Tangail after severe injuries sustained during her marriage.
As Dhaka Tribune reported, four organizations—BLAST, BRAC, Naripokkho and Manusher Jonno
Foundation—challenged the marital exceptions in Bangladesh’s rape laws.
In Writ Petition No. 7758 of 2020, the High Court issued a rule questioning their compatibility with
constitutional protections, including equality before the law under Article 27, non-discrimination under
Article 28, and protections concerning life and personal liberty under Articles 31 and 32.
The rule raised a constitutional question; it did not itself strike down the exceptions. Sarmin Akter's
Understanding Marital Rape: Bangladesh Context, published in the Jagannath University Journal of Law
in 2023, examines the marital exception against principles of consent, equality and bodily autonomy.
Lessons beyond Bangladesh: 
In England, the House of Lords rejected the common-law marital-rape exemption in R v R (1991),
recognizing that marriage could not amount to irrevocable consent to intercourse.

Closer to home, Nepal expressly criminalizes rape by a husband under Section 219(4) of its National
Penal Code, 2017, with imprisonment of up to five years.

Bangladesh's position is legally different from England’s historical common-law rule because its marital
exception is written into legislation. Any reform must preserve the presumption of innocence, proper
investigation and the prosecution’s burden of proving guilt. But difficulties of proof do not, by
themselves, explain why marriage should provide a categorical exception.

What reform should actually address: 

Removing the marital exception from Section 375 would be an important starting point, but reform
should not end there. Parliament would also need to harmonize Section 376, the rape definition under the
2000 Act, and the procedural operation of CrPC Section 561 alongside specialized tribunal procedures.

The legal framework should distinguish clearly between adult consent, offences involving children,
protective remedies and criminal liability. Survivor-sensitive investigation, accessible medical evidence,
confidentiality and safeguards against wrongful prosecution would be essential to making such changes
workable. Section 561 should not be mistaken for an existing general remedy against marital rape. Instead, it offers an invitation to examine why a procedural provision can contemplate an offence more broadly than
substantive law recognizes it. Ultimately, a marriage certificate establishes a relationship. It should not be treated as proof of permanent consent.
Bangladesh has amended its rape laws. The unanswered question is whether the next reform will place
consent, rather than marital status, at the center of criminal protection.

Student of Law Student & Legal Researcher