In a significant judgment, a Division Bench of Kerala High Court on Friday said that marital rape is a good ground to claim divorce. The court, in its order, 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. Marital rape is alien to our penal jurisprudence.”
The court said that marital rape occurs when the husband is under a notion that the wife’s body owes to him. The court order said, “Merely for the reason that the law does not recognise marital rape under penal law, it does not inhibit the court from recognising the same as a form of cruelty to grant divorce.”
The order read, “Right to respect for his or her physical and mental integrity encompass bodily integrity, any disrespect or violation of bodily integrity is a violation of individual autonomy.”
The Division Bench of Justice A Muhamed Mustaque and Justice Kauser Edappagath observed that “a husband’s licentious disposition disregarding the autonomy of the wife is marital rape, albeit such conduct cannot be penalised, it falls in the frame of physical and mental cruelty.” The Bench was hearing an appeal against a family court order on divorce by the husband.
The order said, “The case in hand, depicts 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. 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). She still awaits a final bell to answer her prayers and cry. She is unable to digest the delay involved in responding to a request for the separation. Perhaps we are accountable for her tears. We see this is not a solitary instance. On a day-to-day basis, we see many many like her. Her whimper touches our conscience. We shall advert to this
enigma while concluding this judgment.”
The family court found that the appellant (the husband) was treating the respondent (wife) as a money-minting machine. The family court found that she tolerated harassment for the sake of marriage, and had chosen to file a petition for divorce when harassment and cruelty reached a level beyond tolerance.
She had deposed that even during her pregnancy he had abused her and committed forceful sex when she was sick and bedridden, and was subjected to the worst form of sexual perversion and unnatural sex against her will. She also stated that the appellant forced her to have sex in front of their daughter.
According to the respondent, the appellant-husband practised a medical doctor at the time of their marriage. However, after the marriage, he shifted to the real estate business and construction, which did not go well.
The court has dismissed the appeal by the husband.
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