Women groups' proposals to make husbands prosecutable for marital rape have made the positions of husbands unenviable.

When husbands disincline and refuse to have sex with their wives, the latter are legally entitled to nullify the marriage for non-consummation.

This is because in a marriage, marital sex has all along been both a conjugal right as well as an obligation of marital partners. And a right of one party usually implies a concomitant obligation of the other in the matrix of a relationship (including marital) and it is senseless to talk of a marital right or obligation when the right cannot be freely exercised - that the obligation need not be performed by reason of the disinclination of one party.

If the proposals of women's groups are taken, marital sex will become only the obligation of the husband but a right only of the wife! Is this gender equality under Article 8 of the constitution?

Marital rape proceeds on the premise that consent to marry on a woman's part does not imply an automatic consent to submit to sex with the husband whenever he wishes - by reason of the wife's inalienable right to 'bodily integrity and human dignity' that even the institution of marriage cannot override.

What then is the recourse for a husband inclined towards sex supposed to do with a disinclined wife?

I know the standard answer: self-restraint.

This itself poses several problems. When the desire is restrained at that moment of time, it does not mean that it can be reactivated - like a switch - the moment the other partner feels predisposed.

Secondly, whilst restraint is feasible for many husbands with average libidos, what about the situation of men with higher than normal libidos or testosterone levels and to whom restraint from discharge of their sexual energy (not forgetting seminal fluids) tantamount to a violation of their to 'bodily integrity and human dignity'?

If they were to resort to commercial sex with prostitutes to avert marital rape, they would be accused of committing the other matrimonial offence of marital infidelity and adultery for which their wives could seek divorce, alimony and division of matrimonial assets. (In stricter Islamic jurisdiction, adultery is punishable by death by decapitation or stoning).

The other problem is the question of proof. Within the privacy of the marital environment, when a wife accuses the husband of coerced sex - which the husband denies - who is to be believed?

Is the position to be taken that in every instance, a woman's word is to be more believable than the man's - and that the moment a wife accuses, the presumption automatically arises in her favour that marital rape has been likely committed unless the husband proves to the contrary?

Again, there are several problems here. A marital environment is different from a deserted spot, car park, empty shack, or the bush behind the pub - locations in which many date rapes have been committed.

How does one prove or disprove an intangible state of the wife's mind as to whether there is consent or lack of it? According to the jurist Lord Blackstone, "the devil himself knoweth not what's on man's mind" - the expression 'man' being a generic term extending to women as well.

Shifting the burden of proof to husbands to disprove marital rape counters the other problem: that in any civilised society governed by rule of law, it is generally the state and not the accused that carries the burden of proof to prove guilt beyond reasonable doubt.

If a person accused of murder and taking another person's life were entitled to the presumption of innocence until proven otherwise beyond reasonable doubt, why should a husband, accused of a comparatively lesser crime of marital rape, be deprived of this right to the presumption of innocence - as even serial murders are entitled to - and be made to prove his innocence instead against the wife's words?

The other problem, when marital rape is made an offence under the Penal Code, is whether this new law is going to be applicable only to persons married after the amendment or retrospective in application to all including those who married before.

If marital rape was applied 'retrospectively' to even those who married before it was made an offence, it would be unfair to the many husbands who would claim that they had been misled, and that had they known that their right to marital sex might implicate a criminal offence, they might not have taken "the matrimonial plunge".

Besides, such a retrospective amendment is likely to be struck down as bad law in the same manner the Kuala Lumpur High Court recently not only " barred the Home Tribunal from hearing any of the 2,209 backlog cases, but also effectively nullified awards amounting to some RM2.3 million, granted to more than 438 buyers."

If marital rape were made applicable only 'prospectively' (that is, only to husbands married after the date it has been made an offence), it will undermine the objectives of its promoters - the women's groups - to protect all married women, both after and before.

In general, I think that the introduction of marital rape as a new offence might score points with women group's ideological agenda of equalising power relations between genders and uplifting women's status but it would have little practical consequence and effect on the average marital relations.

Marital life implies a lot of mutual give and take and accommodation of the other partner's moods and off-moods, and majority of wives are likely not to complain of marital rape for this reason rather than fear of the husbands' power or bullying. Indeed the more common complaint in maturer years of married life is that the husbands are either disinclined or incapable of performing their conjugal duty.

In minority cases of a wife being oppressed by a husband's incessant sexual demands leading to coercion, she could always apply for relief of divorce based on physical and mental cruelty.

It is only at the policy level of introducing such new offence that policy and legislation makers have to grapple with some of the rather knotty problems highlighted above. Since a criminal offence under the Penal Code affects Muslims as non-Muslims alike, what Islamic jurisprudence has say about marital sex - and rape - has to be factored in as well.

At the wider level, it has to be factored whether such a law will undermine harmony and sow distrust in marital relations. How will men view their wives vested with the power to potentially implicate them in a criminal offence of marital rape?

Will the younger generation of eligible men - already disinclined to marry early because of career demand, the freedom that comes with higher income, and more abundant choices and opportunities of interacting with the opposite sex - view this proposed amendment as yet another onerous albatross on their necks and a 'spanner in the works' militating against their decision to marry? And if so, what are the long-term social consequences on the expanding pool of educated women unable to find a suitable mate?