Marital rape grounds for divorce: Kerala HC

A division bench of justice Mohammad Mushtaq and justice Kauser Edappagath dismissed the appeal of a man who had challenged a family court order allowing his wife’s plea for divorce on grounds of cruelty.

Marital rape, though not penalised in the country, is a valid ground to claim divorce, the Kerala high court said on Friday, upholding a family court’s decision to allow divorce on the grounds of “marital cruelty”.

Marital rape grounds for divorce: Kerala HC

A division bench of justice Mohammad Mushtaq and justice Kauser Edappagath dismissed the appeal of a man who had challenged a family court order allowing his wife’s plea for divorce on grounds of cruelty. The court said that an “insatiable urge for wealth and sex” of a spouse also amounted to cruelty.

“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,” the bench said.

Section 375 of the Indian Penal Code (IPC) defines the offence of rape with the help of six descriptions. One of the exceptions to this offence is “sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape”.

Marital rape is not criminalised in India but activists say the exception forces women to suffer sexual violence in their homes. In the past, the Centre has argued that criminalising marital rape may destabilise the institution of marriage.

According to the woman, the man is a qualified medical doctor but later moved to real estate business and construction, which was not successful. Facing financial losses, the woman alleged, her husband subjected her to constant harassment for money, due to which her father gave approximately ₹77 lakh to the man on various occasions.

In her deposition during cross examination, the woman also accused the appellant of forcibly having sex with her when she was sick, bedridden, and even on the day her mother died. She also deposed that she was subjected to unnatural sex and forced to have sex in front of their minor daughter. Besides, she said he always suspected her fidelity and accused her of having an illicit relationship.

“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,” the court said.

The two-judge bench further noted that the concept of family as a “social unit” was gradually “withering away”.

“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.”

The judges described the case as “a story of the struggle of a woman within the clutches of law to give primacy of choice not to suffer in the bondage of legal tie”:

The court further suggested that marriage and divorce must be brought under the secular law. “Individuals are free to perform their marriage in accordance with the personal law but they cannot be absolved from compulsory solemnization of marriage under secular law. Marriage and divorce must be under the secular law, this is the need of the hour. Time has come to revamp the marriage law in our country,” it observed.

(With agency inputs)