Marital Rape a Good Ground to Claim Divorce: Kerala High Court

"A husband’s licentious disposition disregarding the autonomy of the wife is marital rape," said the HC.

The Kerala High Court, on Friday, 6 August, upheld that marital rape is a good ground to claim divorce.

(Photo: The Quint)

The Kerala High Court, on Friday, 6 August, upheld that marital rape is a good ground to claim divorce. This comes even though marital rape is not legally an offence in India and thus does not attract any penalty under law.

A division bench of Justices Muhamed Mustaque and Kauser Edappagath, while dismissing a set of two appeals filed by a husband challenging the decision of the family court, said: “…a husband’s licentious disposition disregarding the autonomy of the wife is marital rape.”

Further, the court pointed out, “Albeit such conduct cannot be penalised, it falls in the frame of physical and mental cruelty.”

THE CASE

In the case, the appellant, a doctor-turned-realtor, would allegedly compel his wife to have sex when she was sick, bedridden, and on the day of his mother’s death.

Further, the man is accused to have forced his wife to have unnatural sex and even engage in the act in front of their daughter.

The man would also accuse his wife of having illicit relationships.

Further, the court order said that the family court had found that the man treated his wife as a "money-minting machine".

WHAT ELSE DID THE COURT SAY?

The court, as per LiveLaw, also found that “marital rape occurs when the husband is under the notion that body of his wife owes to him”, and said that such a notion has no place in modern jurisprudence. The court also asserted that spouses in marriage are treated as equal partners.

The Kerala High Court further pointed that the case depicts a story of the struggle of a woman and said:

“An insatiable urge for wealth and sex of a husband had driven a woman to distress. In desperation for obtaining a divorce, she has forsaken and abandoned all her monetary claims. Her cry for divorce has been prolonged in the temple of justice for more than a decade (12 years).”

Further, the court held that “Sex in married life is the reflection of the intimacy of the spouse” and that it was “obvious that the appellant disregarded the wishes and feelings of the respondent".

'NEED OF THE HOUR'

Pointing out that “it is fundamental to the autonomy guaranteed under natural law and the Constitution” and “law cannot force a spouse to suffer against his/her wish by denying divorce”, the court went on to say that the divorce law should be equipped to deal with marital damages and compensation.

“We need to have a law dealing with human problems with a humane mind to respond,” the Court said.

The court also observed that the need of the hour is to bring marriage and divorce under a common code of law for all communities.

“There cannot be any difficulty in having a common code of law to all communities, at least for marriage and divorce on the above lines. Individuals are free to perform their marriage in accordance with personal law, but they cannot be absolved from compulsory solemnization of the marriage under secular law. Marriage and divorce must be under the secular law; that is the need of the hour. Time has come to revamp the marriage law in our country,”

(With inputs from LiveLaw.)