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Kuensel reported that a study carried out by an international organization called Dignity Alliance International (DAI) and Equality Now stated that “paying Gao to the husband of a married woman discriminatory.” This report is not only misleading but also shows the legal analysis by such institution is biased based on selective words and wrong analysis of the law.  The report further said paying Gao “to the husband in cases where a married woman is raped is treats the wife as the property of her husband and is based on archaic and patriarchal notions of chastity and fails to Centre the woman as the real victim” and undermines justice for women.  Making such statements without proper analysis of our Bhutanese personal laws is a deliberate attempt to undermine Bhutan’s effort in upholding the rights of the women. 

First, the report failed to recognize that the concept of Gao is a unique feature of the Marriage Act of Bhutan where compensation is given to either the husband or wife whose partner is involved in extra-marital affairs based on our customary laws and nothing to do with gender. This provision is completely a gender-neutral clause inserted under Section Kha 3-1 of the Marriage Act of Bhutan 1980 and protect all the innocent parties in marriage from extra-marital affairs and discourage other persons from getting into extra-marital affairs with a married person. 

While the incorporation of Gao in the Penal Code of Bhutan (PCB) deserves a review and discussion of its suitability, the intention in the PCB does not target any gender or treats the women as the property of the husband. The report was purely based on wrong presumption. For example, Section 190 of the PCB states “the offence of gang rape of a married person shall be a felony of the third degree and shall also be liable to pay “GAO” by each defendant in accordance with the other laws.” This section is neutral because of the “rape of a married person” not a “married woman”. In fact, the GAO is an additional sanction on the rapist where the rapist must serve the imprisonment as well pay GAO (compensation) to the other partner of the rape survival besides other compensations including medical, loss of wages and punitive damages to the rape survival and enough mechanism to ensure justice to the victim. 

On the other hand, Article 9 Section 17 of our Constitution mandates the states to take “appropriate measures to eliminate all forms of discrimination and exploitation against women including trafficking, prostitution, abuse, violence, harassment and intimidation at work in both public and private spheres.” This is a special constitutional protection to women but that report decided to not to mention. 

Therefore, terming Gao as a way of making women property of husband is condemnable at best and indeed using such terms undermines our women by calling them as property of husband. In the name of women’s right, the institutions must not use selective words to fulfil their vested interest and tarnish the image of our country for their benefit.  There is no denying that our laws are not perfect and will never be, but such reports must reflect the true intentions and interpretation of these laws. Our mainstream media has duty to fact-check such reports before publishing to verify the accuracy of such reports with our laws and legal experts.

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.

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