Marital rape law covered in Malawi controversial Marriage Bill

A bill that Malawi Parliament passed banning child marriage, raising the minimum age to 18  and updated the laws on marriage and divorce, included making rape within marriage explicitly illegal.

One of the more controversial elements of the bill refers to marital rape.

While confirming conjugal rights in marriage, the law states that a spouse may refuse to have sex “on reasonable grounds”.

Reads the bill: “A spouse has the right to a sexual relationship with the other, except on reasonable grounds such as poor health; if she is recovering after giving birth; if he/she is recovering after surgery; if he/she has reasonable fear that engaging in sexual intercourse is likely to cause physical or psychological harm to either spouse; or if there is need to reasonably respect custom.”

Critics argue that the current penal code, which makes a man guilty of rape if he ‘unlawfully had carnal knowledge of a woman without consent’, implies that it is possible to have lawful sex without consent.

“This is interpreted by many to mean when the parties are married,” a person commenting on Nyasa Times article which posted the bill observed.

The bills also state that a husband will commit the offence of rape “if he is on separation from her wife and has sexual intercourse with her without her consent.”

It is believed that there is widespread rape within marriage in Malawi but reporting it is widely regarded as taboo.

Nyasa Times understands that “marital rape” is a major cause of health problems among married women, including women who have died as a result of coerced sex soon after giving birth.

Women activists argue that there must be an agreement on sexual activity.

Although sometimes withholding sex is used a weapon, especially by women against men, activist says “this can be sorted out through communication and understanding.”

MCP spokeswoman Jessie Kabwila who helped push for the new legislation said the passing of the law was “great for Malawi” particularly banning child brides, saying the law would help boost development in one of the world’s poorest countries.

But the chairperson of the Legal Affairs Committee of Parliament, Peter Chakwantha, has accused the Democratic Progressive Party (DPP) government of bulldozing parliament in passing the Marriage Divorce and Family Relation Bill.

He said government flouted the newly adopted standing orders which, among others, stipulate that a bill passes through his committee before proceeding for debate in National Assembly.

“The way the bill was presented and the manner in which debate on it was moderated leaves some of us feeling short changed,” said Chakwantha, as quoted in the local press.

Minister of Gender, Patricia Kaliati, who tabled the bill, dismissed the claims.

“Who didn’t follow the procedures? Which legal affairs? In fact where were they when we were passing the bill? The members should not point fingers at government on the issue because they were also part and parcel of it,” retorted Kaliati.

The enactment of the Bill will repeal several laws related to marriage, divorce and maintenance “that are scattered across several Acts.”

It is expected to soon be signed into law by President Peter Mutharika.