Marital Rape from the Perspective of Malaysian Laws and Islam

Cik Nur Farihah Meor Mazli Domestic Violence Education Islamic Family Law Marital Rape Viewpoints Women

By virtue of this country’s legislation for sexual offences, position in Syariah, the reality of criminal practice, as well as norms and culture of the Malaysian people – marital rape is not recognized here. There is no such thing as rape after marriage in the context of legally married couples in Malaysia. Malaysia does not recognize marital rape because we don’t use the term suggested by demanding liberals and international legal instruments.

This issue is initially brought up by liberal feminists who cannot accept that women should always be ‘ready’ for their husbands. They reject the idea that wives must fully submit to their husbands’ order or command although it already has been permitted by the religion. One must fathom the legal construct of the term Rape where the said conduct can only occur outside of marriage. In Islam, it refers as hirabah حرابة‎ (taking something which is not yours) in a forced and non-consensual nature.

Hence the effect of marital rape as proposed by many is more of a private injury rather than a strict liability offence – where a man forces himself against his wife’s will during sexual intercourse. The wife will then either suffer both mental or physical hurt as she does not consent or prepare for the sort of intimacy. I believe the same is applied to any woman who ‘mistreats’ her husband.

Now bear in mind that consent should not be an issue here. The original purpose and beauty of marriage itself is for both men and women to submit into all forms of love and affection including intimate relationship by legal means (and any acts that are allowed by Allah swt). The issue of consent among spouses is very subjective and private.

Nevertheless, the term ‘marital rape’ is often linked to abuse of intimate relationship between spouses. Automatically, it is said to be a part of domestic violence. Literally, it refers to any acts of violence which take place in a household. The key word here is ‘causing hurt’. Any persons including spouses who intentionally hurt the other partner by way of physical & mental pressure is wrong and must be punished in the eyes of law.

Domestic violence clearly contradicts one of the objectives of Islamic jurisprudence which is to preserve life. It falls under the concept of harm (darar) and is denounced by Allah swt as it destroys the purpose of a marriage institution. Therefore, before someone intends to pursue for marriage, he or she must be adequately equipped with the knowledge of Fiqh Munakahat. Comparably, civil laws in our country such as the Penal Code and the Domestic Violence (Amendment) Act 2017 have sufficiently provide for relevant offences along with its punishment.

The Penal Code provides for : Section 326A which penalizes anyone who causes hurt to his spouse during a marriage by imposing hefty imprisonment sentences. While Section 352A can put anyone who assaults or exerts criminal force on his spouse during a marriage to six months of imprisonment, fined up to RM2,000, or both. Section 375A gives the most heavy penalty to any man who during the subsistence of a valid marriage causes hurt to his wife in order to have sexual intercourse together by subjecting them to a term of imprisonment which may extend to five years.

Similarly, domestic violence as per DV(A)A 2017 is defined as any of the following acts: where one causes physical injuries to the victim knowing full well that the act in question will cause physical injuries or/and forces a victim, by means of coercion or threats, to perform an act that includes but is not limited to sexual in nature to which the victim has a right to refuse.

For cases of emergencies, abused husbands or wives can instantly seek treatments and support at the One Stop Crisis Centre (OSCC) in the nearby government hospitals. Please don’t wait until the very last ‘strike’. Be it under civil or Syariah law, Malaysia has not criminalised or penalised marital rape in its own meaning up to this date.

In October 2018, the former Deputy Minister in the PM’s office, Mohamed Hanipa Maidin said that the government has no plans to amend the law to criminalise marital rape as it is very difficult to prove in court and even if it’s possible , the accused would be easily acquitted.

In criminal practice and by technical means, it is true that the elements of marital rape are difficult to prove in court. Even for the usual rape offence. Generally, all Deputy Public Prosecutor DPP has the burden to prove presence of fresh tear of a woman’s hymen (part of vagina) in order to show that a rape has occured within 72 hours.

Therefore it is quite impossible for a DPP to prove fresh tear of hymen from a woman who claims to be ‘raped’ by her husband. It is nearly impossible to discover such fresh tear in a woman’s private part when in reality, they are bound to many accounts of sexual intercourse throughout their marriage.

As for our Eastern culture, it is not practical to penalise Marital Rape as its punishment only works as a deterrent and a conviction by court is not the best remedy. A criminal lawyer, Mr Wan M. Razali said that many wives are actually reluctant to lodge a police report against their own husband. Simply because they think it is embarassing. Come to think of it, why would someone put his/her spouse behind bars unnecessarily?

Moreover, the consequences are severe and harsh. Public servants will lose their job even if they’re put in prison for one day. Families will then be lacking of financial and moral support from the breadwinner. There may also be possibilities of continuous shame and slurs thrown by fellow neighbours and friends. This is not an attempt to normalise ‘victim blaming’ or defend the perpetrator. The reality is as such.

The effects? Both husband and wife would suffer great hardship and their children would be traumatised. The daughter might as well blame her father for the alleged ‘rape’, while the son would blame his mother for reporting the case. In result, the whole family institution could easily shatter and fall apart because the parents were not able to handle their own nafs and ego.

There is a comment from fellow colleague in which I agree with and quote:
“Males need to be educated on the importance of respecting their females counterparts since young and vice versa. This should be started at home”.

Some may ask how about the remedies for the affected parties? Will justice serve our women? Note that criminal law will never be the answer as there is no element of education in its punishment. The offender may be afraid and tired of the legal consequences but practically, they may not be encouraged to improve their lives once they are freed from the prison. The extreme feeling of guilt remains.

Nevertheless, there are always other remedies for the affected parties to claim against the abuser. Islam allows an abused wife to claim compensation under ta’zir (discretionary corporal punishment). It is seen as the best type of remedy because the party who is hurt will receive fair gains without actually destroying the pre-existed family bond. As for civil remedies, the wife can apply for an Interim Protection Order (IPO) from court which will prohibit the husband from getting near to the former. Legal recourses are already mentioned above – yet rarely implemented.

Religious state offices will also provide counselling and proper religious advices to the husbands. While Syariah courts nationwide are open to hear fasakh and takliq claims from the wife. However, if any of the above does not work and the abuse is getting worse, the last resort is for either spouse to seek for a divorce. May Allah swt forbid.

Islam has thoroughly guide its believers on the topic of munakahat. There would be no issue of ‘marital rape’ if both husband and wife had carefully observed the fixed rulings of Allah swt and Sunnah of prophet Muhammad saw. Note that in Islam, married couples cannot even insult or use bad words against each other, what more to make one angry and hurt by any means. Duty to marriage is a duty towards Allah swt in which He constitutes upon both husband and wife. A wife has the right to time and affection from her husband and vice versa.

Marriage must be a bond of mutual respect and love where the husband and wife must journey through the difficulties of life together, while comforting each other.

Allah swt says,

“And one of His signs is that He has created for you, spouses from among yourselves so that you might take comfort in them and He has placed between you, love and mercy. In this, there is surely evidence (of the truth) for the people who carefully think.” (30:21)

Allah swt describes the relationship between husband-wife as,

“They (your wives) are a clothing for you, and you too are a clothing for them” (2:187)

Therefore, it must be a relationship where both are protected (have their backs covered), both emotionally and physically by each other. The key to a successful marriage is for the wife to respect the ultimate role of his husband as the leader of the household where great responsibilities are put upon him.

“Men are in charge of women by what Allah has given one over the other and what they spend (for maintenance) from their wealth…” (4:34)

Allah swt also beautifully says in the Qur’an,

“It is He who created you from one soul and created from its mate that he might dwell in security with her. And when he covers her, she carries a light burden and continues therein. And when it becomes dark, they both invoke Allah, their Lord, If You should give us a good (child), we will surely be among the grateful” (7:189)

Hence, in preserving the purity of our family institution, Allah swt teaches us to recite this powerful du’a, recommendably in our every single prayer.

“Our Lord! Grant us from our wives and our descendants’ coolness of the eyes and make us an example for the people of piety.” (25:74).

Lastly but most importantly, remember that a successful marriage requires one to fall in love again and again with the same person. So, be in love folks.

Nur Farihah Meor Mazli
Youth & Media Exco
International Women’s Alliance for Family Institution & Quality Education (WAFIQ)

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