Lahore: The Lahore High Court (LHC) dismissed a petition seeking directions to the federal and provincial governments to introduce specific legislation criminalising marital rape, ruling that courts cannot compel legislatures to enact laws or create new criminal offences.
Justice Abher Gul Khan issued the ruling on a public interest petition filed by lawyer Areej Sohail Bhutta, who sought amendments to Sections 375 and 376 of the Pakistan Penal Code (PPC) to establish a distinct legal framework addressing sexual violence within marriage.
The court clarified that dismissing the petition did not amount to endorsing violence, coercion or abuse within marriage, nor did marriage diminish a woman's constitutional rights to dignity and bodily integrity.
Court says legislation falls within parliament's authority
In its judgment, the court observed that the Constitution establishes a separation of powers between the judiciary, legislature and executive.
Justice Khan noted that Article 199 empowers high courts to enforce fundamental rights but does not authorise them to assume legislative responsibilities.
The court distinguished between directing government authorities to fulfil existing legal obligations and ordering lawmakers to introduce specific legislation.
Referring to Article 142(b), the judge observed that parliament and provincial assemblies have the constitutional authority to legislate on criminal law, criminal procedure and evidence.
The judgment maintained that creating a separate criminal offence or introducing additional safeguards involves legislative policy decisions requiring consideration of legal definitions, evidence, procedural protections and existing laws.
Petitioner highlights sexual violence within marriage
Bhutta argued that the existing legal framework did not adequately address non consensual sexual conduct within marriage.
She said her professional experience as a lawyer brought her into contact with women reporting such experiences.
The petitioner sought legislative measures addressing what she described as gaps in the law, invoking constitutional protections concerning personal security, dignity and equality.
However, the court observed that she neither challenged a specific statutory provision as unconstitutional nor identified an authority that failed to perform an existing legal duty.
Justice Khan also noted that the current wording of Section 375 does not expressly exempt husbands from the offence of rape solely based on marriage.
Women's constitutional protections remain intact
The court referred to Articles 9, 14 and 25 of the Constitution, which protect personal security, dignity and equality.
It also observed that Article 35, concerning the state's responsibility to protect marriage and family life, could not be interpreted as permitting violence against a spouse.
Justice Khan said foreign legislation could offer comparative guidance, but any proposed legal framework must be examined within Pakistan's constitutional system, existing laws and Islamic injunctions.
The court ultimately dismissed the petition on jurisdictional grounds, leaving parliament and provincial assemblies free to consider further legislation.
The decision does not establish that marital sexual violence is lawful or prevent lawmakers from introducing additional protections for women.
