I am surprised by the Joint Action Group for Gender Equality's (JAG) accusation of the Bar Council's 'lack of appreciation of the concept of violence against women' when the latter made a statement that a wife must be 'actually physically hurt' into having sexual intercourse with her husband in order for the husband to be charged with rape. Ironically, the proposed amendment on Section 375A (in which a wife's mere testimony of 'fear of hurt' can get the husband five years behind bars) is unjust towards men and women, Muslims and non-Muslims alike.

For sure, there will be those who claim the husband's threat of neglecting his duties in providing household provisions can be construed as a 'duress' a husband can use to pressure his wife to submit to his lust but such case is relevant only in divorce or family court, not in a 'marital rape' case. For Muslims, the amendment has the potential to undermine the husband's right to receive physical and emotional enjoyment if the wife puts certain ridiculous conditions on the husband (to nullify certain syariah-backed compliance the husband expects) in return for the wife's consent for sex.

Since emotional duress is ambiguous and viewed heinously by both the secular and syariah standards, the remedy should be concentrated on getting the civil and syariah courts to accelerate the divorce process for emotionally tortured wives (or husbands). If efforts for such a remedy is undermined by the incessant 'need' to jail the emotionally threatening husbands for up to five years, then for sure the wives, in avoiding both possibilities of the husbands' continuous emotional duress and hassle in obtaining a divorce, will still suffer from the lack of financial support and the lack of companionship.

If the amendment is applied to men (so as to appease activists supporting absolutely equal rights of men and women), then one would wonder what will happen if a wife threatens her husband with negligence if her husband fails to fulfill her right to romantic and playful gestures in the bed (as demanded by the Prophetic Wisdom) due to stressful day at work, erectile dysfunction, World Cup mania, etc. Can that too be construed as a emotional or spiritual duress? In that sense, maybe JAG is true to say that "violence means more than the physical bruises, cuts and blood that can be seen".

The ambiguity of threats, which lies within the complexity of a husband-wife conflict, does not substantiate the testimony of emotional distress of either spouse as a sign of marital rape provable in court. Injustice occurs when the sufficiency of ambiguous assumptions in convicting the accused becomes the rule rather than the exception.

The accused has the right to know the grounds of his conviction and it is the sole responsibility of the accuser to provide the proof as proof is the responsibility of the claimant; whereas, for the claimed against, an oath is sufficient (as mentioned by hadeeth narrated by Tarmidhi). This complies with the innocent until proven guilty verbatim embedded in the widely recognised UDHR.

How on earth can a husband be charged with committing a unilateral coital 'crime' merely based on the wife's perceived notion of physical threat that is nearly impossible to be substantiated under any court of law? The Prophet himself rules exclusively on the basis of externals. Why must the unilateral right of a spouse to recourse by safely aborting the marriage provided either by the civil law or the syariah law (in the presence of disagreements over both spouses' sexual rights and responsibilities) be under-emphasised?

The amendment to the Penal Code can only serves its goal if it is materially provable, such as a disturbance when a husband shouts in the middle of the night about cutting his wife into pieces if she refuses sex, followed by screams of the tearful wife. At least the threat is physically substantiated in court by the testimonies of the neighbours.

The amendment will do nothing to correct emotional battery suffered by threatened wives. Instead, the misuse of it will promote injustice to both men and women. I would call upon JAG to share with the rest of the readers studies, research or any credible statistics on theoretical scenarios of 'emotional battery' injustices.

To sum it all, the marital rape amendments proposed by JAG (applicable in the absence of any physical evidence of abuse) is an infringement of not only to the Muslims' rights to set their own framework of mutual sexual rights and responsibilities among Muslim spouses, but to the non-Muslims as well. To Muslims, marriage must be based on mutual peace, love, and compassion, not just the satisfaction of man's needs due to his dominant leadership characteristics or the superiority of woman's right of recourse to justice due to her inherent physical weakness compared to men.

JAG has previously come up with wonderful ideas on domestic violence prevention, and there are other ways JAG can preach to expel the wrongful notion that men should be in absolute control of women once via proper parenting and education, non-exploitative commercials, media and entertainment outlets outreach, transparent public services and mutual community interactions. Please don't let them be underrated by the current marital-rape Penal Code proposal. Politicising women's pain merely on the surface can backfire sometimes.