It is a sad reality that marital rape is still not criminalised in India. Despite the extreme statistics regarding it, the victims who have come forward, the protests and calls for it to be made legally into a crime, marital rape still remains legal in the country.
However, there seems to be some hope coming in with the Kerala High Court (HC)’s recent judgement regarding a case where a woman sought divorce because of marital rape among other things.
On Friday a transcript of Kerala High Court’s judgement was made public where they upheld a family court’s verdict to allow divorce for a couple based on “marital cruelty”.
The division bench of justice Mohammad Mushtaq and justice Kauser Edappagath also stated that while marital rape itself might not be a crime in India, but it is still a valid ground to claim divorce.
What Did Kerala HC Say?
On 6th August 2021, the Kerala High Court gave a verdict on a set of two appeals that a husband had made against his divorce being granted by a family court.
The man, who is reportedly a medical doctor and also dabbled in real estate and construction business was appealing his wife being granted a divorce on grounds of cruelty.
The Kerala High Court for that matter upheld the judgment and dismissed the pleas by the man. The bench stated that “In a married life, sex is reflection of the intimacy of the spouse. The evidence given by the woman establishes that she was subjected to all sorts of perversion against her will. Marital rape occurs when the husband is under notion that body of his wife owes to him.”
In their ruling they said,
“A husband’s licentious disposition disregarding the autonomy of the wife is a marital rape, albeit such conduct cannot be penalised, it falls in the frame of physical and mental cruelty…
Merely for the reason that the law does not recognise marital rape under penal law, it does not inhibit the court from recognizing the same as a form of cruelty to grant divorce.
We, therefore, are of the view that marital rape is a good ground to claim divorce.”
As per reports, the woman revealed that when her then-husband faced financial losses in his new businesses, he harassed her constantly for money which led to her father lending the man around Rs. 77 lakhs in total over several instances.
Not just that, but he also forcefully had sex with her many times not even leaving her be when she was sick and bedridden. According to reports he even forced himself on her on the day when her mother had just passed away.
As if that was not enough reports also state that the man forced her to have sex in front of their daughter, who is a minor and unnatural sex. The man also accused his wife many times of cheating on him and of infidelity.
The family court had remarked that the appellant saw his wife as a “money-minting machine”. Upholding this verdict, the Kerala HC stated that
“In this case, the insatiable urge for wealth and sex of the husband had forced the wife to take a decision for divorce. His licentious and profligate conduct cannot be considered as part of normal conjugal life.
Therefore, we have no difficulty in holding that insatiable urge for wealth and sex of a spouse would also amount to cruelty.
The right to respect for his or her physical and mental integrity encompasses bodily integrity, any disrespect or violation of bodily integrity is a violation of individual autonomy.”
They also added that
“If marriage is seen as a symbol to project status, without reflecting the values the individuals or society would cherish to profess, we may miss the basic concept required for marriage.
The concept of family as a social unit is also slowly withering away to recognise the concept of bond created by the individuals.
The individuals who were reluctant to separate, fearing social fear, and on the ideal of the sacrament of marriage, have no fear now to approach the court for divorce to establish the free act of will.
Matrimonial relationship is all about contentment. When there is harmony at home, that leads to contentment in marriage. The harmony is evolved through mutual respect and trust. The debt of the husband sparked the dispute between him and the wife.”
Giving a strong statement the Court said,
“Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape.”
The Court commented on modern marriage systems and the current mindset of society regarding married partners. They said, “in modern social jurisprudence, spouses in marriage are treated as equal partners and husband cannot claim any superior right over wife either with reference to individual status”.
They also said that the law cannot deny a person divorce if they do use marital rape as grounds for asking one since “law cannot force a spouse to suffer against his/her wish by denying divorce”.
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This post is tagged under: Marital rape, Marital rape india, Marital rape kerala high court, divorce, Kerala High Court, marital rape laws india, marital rape grounds for divorce, Justice A Muhamed Mustaque, Justice Kauser Edappagath, privacy, autonomy, matrimonial cruelty, individual autonomy, Kerala HC marital rape