William & Mary Journal of Race, Gender, and Social Justice
Abstract
In Abdul Kadir v. Salima, Mahmood J summarised the nature of a Pakistani wife’s duties under Islamic Law. The nikkah contract “imposes submission on the wife when summoned to the couch and confers on him the power of correction when she is disobedient or rebellious.” Earlier, a similar pronouncement was made across the ocean in the United Kingdom by Sir Matthew Hale that through the marriage contract the “wife hath given herself to the husband, consent of which she cannot retract.” Marital rape was later recognised as an offence in the UK by the House of Lords in R v. R. In Pakistan, however, the jurisprudence behind the decision in Abdul Kadir continues to prevail. This Essay will assess the offence of rape in Pakistan and analyse the difficulty in prosecuting marital rape cases. The discussion will also focus on the underlying source of this difficulty, being the corresponding rights of spouses under Islamic law, particularly the husband’s right to obedience and sexual access to the wife. A critique of these spousal rights will then be presented using radical feminist jurisprudence, particularly the works of Catherine MacKinnon, Robin West, and Andrea Dworkin. The subject of inquiry is the nature of a Pakistani wife’s ‘consent’ in light of social, economic and sexual inequalities prevalent in an Islamic marriage and whether exploitation of the same renders a consent-based definition of rape redundant.
Repository Citation
Iqra Saleem Khan, Consent in Marriage: A Radical Feminist Analysis of Pakistani Law, 26 Wm. & Mary J. Race, Gender, & Soc. Just. 671 (2020), https://scholarship.law.wm.edu/wmjowl/vol26/iss3/6Included in
Comparative and Foreign Law Commons, Criminal Law Commons, Family Law Commons, Law and Gender Commons