LHC rejects plea seeking legislation to criminalise marital rape

Court says framing new offences falls within parliament's domain

LAHORE:

The Lahore High Court (LHC) has dismissed a petition seeking legislation to specifically criminalise marital rape, ruling that courts cannot compel parliament or provincial assemblies to enact laws or adopt a particular legislative policy.

The court, however, clarified that its decision should not be construed as endorsing violence, coercion or abuse within marriage, or as undermining a woman's dignity, bodily integrity and constitutional rights on account of her marital status.

Justice Abher Gul Khan passed the eight-page order while dismissing a public interest petition seeking directions to the federal and provincial governments to amend Sections 375 and 376 of the Pakistan Penal Code (PPC) and introduce a specific legal framework addressing marital rape.

The court observed that although the High Court enjoyed wide constitutional powers under Article 199 to enforce fundamental rights, these powers did not authorise it to assume legislative functions assigned to parliament and provincial assemblies.

It said directing authorities to enforce an existing constitutional or statutory obligation was fundamentally different from ordering lawmakers to create a new offence or adopt a particular legislative policy.

The court observed that introducing a separate offence or additional protective mechanisms involved complex considerations, including the definition of the proposed offence, evidentiary requirements, procedural safeguards, protection of complainants and measures to prevent possible misuse. Such matters required comprehensive deliberation by the competent legislative forums, it added.

Referring to Article 142(b) of the Constitution, the court noted that parliament and provincial assemblies were empowered to legislate on criminal law, criminal procedure and evidence.

The petitioner, a practising lawyer, had approached the court as a public-spirited citizen, stating that she had come across female clients who allegedly experienced non-consensual sexual conduct within their marriages.

She argued that the existing legal framework did not specifically address sexual violence within marriage and sought amendments to Sections 375 and 376 of the PPC in the light of constitutional guarantees of dignity, equality and security of person, as well as the Injunctions of Islam.