The recent case of a married woman who was raped while returning from work has got people questioning why the husband needs to be compensated when the wife is raped.

Many condemned the act and took to social media questioning why the offence of the rape of a married woman is graded only a fourth-degree felony.

A legal academician, Sonam Tshering, clarified that although the Penal Code of Bhutan has different categories of rape, the penalty remains same for the offence whether the victim is married or not.

“The only difference is the inclusion of alimony that has to be paid to the husband in section 178 of the Penal Code of Bhutan 2004,” he said. “Except for statutory and gang rape, the penalty for rape, rape of a married woman or pregnant woman ranges between three years to five years.”

He said that while the law, which mandates paying compensation to the husband of the victim was enacted with the objective to add an additional penalty on the rapist, it does not fulfil the objective since alimony, known as ‘Gawo’, is a concept of compensation derived when one of the spouses is found involved in extra-marital affairs.

“The person who is not in the extra-marital affairs gets the Gawo as compensation from the other person who had an illicit relationship with his or her spouse,” he said.

Sonam Tshering said extramarital affairs occur as a result of consent between one of the spouses and the third person while rape occurs against the will and consent of the victim. “Therefore, compensating the husband with Gawo seems obsolete.”

He said that equating rape with extra-marital affairs is not justified and should never be related to each other. “A woman said it can even set a wrong tone whereby rapist would feel that raping a married woman means less penalty and in other circumstances, the husband may encourage other men to rape his wife to get money as the husband is entitled to ‘Gawo.’

Parliamentarians, he said, should review such laws and if necessary amend the law to befit and uphold the dignity of the person who is raped and also remove any kind of misconception and confusions among the public.

Law practitioners, however, claim that the penalty for the rape of a married woman is justified.

A court official explained that the law has clear definition and grading of the offence.

“A man convicted of raping a woman will be penalised for the crime. He will also have to pay compensation to the woman for the damages he caused. He will have to pay the Gawo if the woman is married,” a judge said.

A lawyer from the Office of Attorney General (OAG) said Gawo has to be paid because the Marriage Act of Bhutan mandates it. Chapter III of the Marriage Act of Bhutan states that there are rules governing the payment of compensation (Gawo) because of husband or wife being involved in adultery.

Section Kha 3-1 states, “If any third person commits adultery with a married woman, then whether or not that woman has children, and whatever be the relationship existing between that woman and her husband, and whether or not that adulterer entices her away with him, that adulterer committing the said offence shall have to pay compensation to the said husband of that woman in accordance with the duration of that woman’s marriage with her husband.”

A Thimphu resident, Zam, pointed out that rape is not adultery and lawmakers should amend the law to give the harshest penalties to rapists instead of compensating the other spouse.

Court officials said people aggrieved by the law should write to their representatives, who would then put it up in the parliament for discussion and amendment. “They could also a file petition,” a legal practitioner said.

Tashi Dema