Bhutan has been a beacon for prioritising the protection and promotion of women and children’s rights, a commitment reflected in government policies and political manifestos. However, recent cases where husbands face rape charges solely based on their wives’ pregnancies before the age of eighteen raise serious concerns. This legal predicament, governed by Section 183 of the Penal Code (Amendment 2011), not only reveals a poorly drafted provision but also raises questions about its compatibility with established laws safeguarding the rights of children and women.

The Childcare and Protection Act of Bhutan (2011) forms the bedrock of the nation’s commitment to safeguarding children’s rights, emphasising the best interests of the child as paramount in all actions, with a recognition that societal efforts are essential for the harmonious development of children. The Act prohibits the involuntary separation of a child from their parents, except when determined necessary for the child’s best interest by competent authorities.

Similarly, as a signatory to the Convention on the Rights of the Child (CRC), Bhutan recognises shared parental responsibilities and the state’s duty to support both parents. The Adoption Act further underscores the state’s commitment to preventing unnecessary separation from biological parents. Furthermore, in 2011, PCB was amended to decriminalise homosexuality, and the government consistently promoted the rights of LGBTQ+, meaning the sexual rights of this population are protected. However, Section 183 undermines these principles by categorising all sexual intercourse between 16-18 years age range as rape defeating the rights of consensual relationships, especially when the accused and the victim are close in age, breaching the sexual rights of the girls and boys. The definition of rape with age as the primary factor is absurd and flawed, vulnerable to abuse, as seen in recent cases where anyone unhappy with a family can file a case of rape.

The PCB emphasizes the voluntary nature of committing an offence, requiring that a defendant must have acted purposely, knowingly, recklessly, or negligently to be convicted. This nuanced approach acknowledges the significance of mens rea and actus rea in determining culpability. However, Section 183 undermines these fundamental principles of criminal justice, as the prosecutor is not obligated to prove either criminal intent or action. The sole requirement is the occurrence of sexual intercourse resulting in children, without distinguishing it from criminal acts, thereby labelling a family as criminal merely for having children. It raises the question of whether the prosecutor would have filed a case if there had been sexual intercourse without resulting in children. The judiciary must acknowledge this loophole in Section 183, even if a prosecutor decides to pursue such a case.

In the pursuit of justice, the judiciary must weigh all relevant factors carefully, considering the broader legal landscape that upholds the rights of women and children provided in the CRC, CCPA, CAA, and constitutional protections. The requirement to prove guilt beyond a reasonable doubt, must be based on an objective interpretation instead of literal interpretation of Section 183.

Thus, Section 183 demands urgent amendment to rectify its inherent flaws. While rape should remain a heinous crime, the law must ensure the protection of children’s and women’s rights. The definition of rape must be based on consent and criminal intent and act to preserve the sanctity of the law while preventing the unintended consequences of unjustly depriving children of their fathers and wives of their husbands.

Sonam Tshering

Lawyer, Thimphu

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