Domestic Violence and the Applicability of the Penal Code, 1860: An Analysis

Abstract

Domestic violence remains a pervasive yet under-addressed form of gender-based violence globally, with acute manifestations in patriarchal societies like Bangladesh. Despite legislative advancements such as the Domestic Violence (Prevention and Protection) Act, 2010, the primary legal framework for prosecution remains the outdated Penal Code, 1860 a colonial statute lacking provisions for modern domestic abuse complexities. This study critically examines the Penal Code's applicability in contemporary Bangladesh, revealing systemic gaps in addressing non-physical abuse (emotional, psychological, economic) and its controversial marital rape exemption under Section 375, which denies wives protection against spousal sexual violence. Through comparative analysis of regional legal frameworks (India, Nepal, Sri Lanka, Pakistan), the study highlights progressive reforms like marital rape criminalization and integrated civil criminal remedies. Theoretical lenses feminist legal theory, critical legal studies, and human rights perspectives examine how patriarchal norms perpetuate legal inadequacies. Findings underscore the Penal Code's failure to align with international human rights standards, leaving victims without meaningful recourse. The study advocates urgent reforms: (1) explicit criminalization of all abuse forms, (2) repeal of the marital rape exception, (3) gender-sensitive training for legal professionals, (4) enhanced victim support services, and (5) better integration between the Penal Code and the 2010 Act. Without these changes, Bangladesh's legal system will continue to marginalize victims, reinforcing cycles of impunity and gender inequality.