Marital rape as a violation of women’s fundamental human rights in muslim family institution: a View on Malaysia law (penal code section 375a) and Indonesia law (uu number 23/2004 the elimination of domestic violence act)

Marital rape is a crime that can take place in any matrimonial home. However, the number of marital rape lawsuits filed in court is relatively low as the wives are unaware that marital rape is considered a violation in Malaysia and Indonesia. Due to social pressure, marital rape seems a taboo topic to be discussed. Patriarchy teaching has been fostered in Malaysian and Indonesian households due to cultural and customary practices and a misunderstanding of religious teaching. In this research, the author will discuss how can marital rape be considered a violation of women's fundamental human rights to Muslim family institutions in Malaysia and Indonesia and how the legislation system in Malaysia and Indonesia can protect women from marital rape.

The research method in this study will be normative research with a qualitative approach. The author intends to perform literature study by reviewing legal documents such as the Malaysian Criminal Code S.375A and Law of the Republic of Indonesia Number 23 of 2004, as well as periodicals and academic works.

According to the findings of this study, Section 375 of the Malaysian Criminal Code clarifies that penetration is sufficient to establish that sexual intercourse is required to commit rape. If a marriage is lawful or acknowledged as legal in Malaysia, sexual encounters between a man and his wife are not robbed. Additionally, in S.375, any man in legal marriage who causes fear or injury to his wife or anyone else to have sex with her will be imprisoned for five years. Regrettably, S.375A does not mention consent, which means that consent plays no role in delegitimizing intercourse. While, in Indonesia, marital rape is not criminalized under Indonesia Criminal Code, and it is only stated in Domestic Violence Protection Act. However, the cases is not taken seriously when the punishment is less strict instead of rape that occurs outside marriage. There is no specific law enforcement in XVIII.

Malaysia and Indonesia to prosecute the perpetrator of marital rape, and as a result of the lack of a specific legal allocation, victims may not receive the protection they deserve. Prosecuting the husband for marital rape while remaining the legal marriage is nearly impossible