Though marital rape cannot be penalised it is a valid ground to claim divorce

Though marital rape cannot be penalised it is a valid ground to claim divorce

XXXX Vs XXXX

Kerala HC

30/07/2021

MAT.APPEAL NO. 151 OF 2015

About/from the judgment:

The Court held that in modern social jurisprudence, spouses in marriage are treated equally and husband cannot claim supremacy over wife on her body or individual status. (Is vice versa allowed?)

In a judgment which could have significant impact on divorce cases, the High Court has ruled that marital rape can be a good ground to claim divorce.

While marital rape is not a criminal offence under Indian law, it amounts to cruelty and can, therefore, entitle a wife to divorce, the court held.

"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," the Court ruled.

It emphasised that in modern social jurisprudence, spouses in marriage are treated equally and husband cannot claim supremacy over wife on her body or her individual status.

"Treating wife's body as something owing to husband and committing sexual act against her will is nothing but marital rape,” the Bench added.

The Court was hearing an appeal filed by the husband challenging a judgement of family court granting divorce on the ground of cruelty and dismissal of a petition for restitution of conjugal rights.

By way of background, the appellant-husband had married the respondent-wife 2 children were born out of the wedlock. The appellant is a qualified medical doctor but engaged in real estate business and construction which was not successful owing to the wayward life led by the appellant.

He constantly sought financial assistance from the respondent’s father (an affluent businessman), and physically and mentally abused the respondent wife. On this ground a petition for divorce was filed on constant harassment and demand for money.

The Court in its judgment adverted to the verdict of the family court as per which the appellant was treating the respondent as a money-minting machine and the respondent was tolerating the harassment for the sake of marriage.

It was noted that the appellant’s own father had made complaints against him on grounds of financial harassment, in order to seek police protection.

Similarly, the appellant had constantly harassed and threatened his father-in-law also demanding money from him.

Pertinently, the High Court placed strong reliance on the testimony of the wife given in trial regarding the sexual conduct of the husband.

"She had deposed that the appellant committed forceful sex when she was sick and bedridden. She also deposed that she was subjected to the worst form of sexual perversion and unnatural sex against her will. The respondent deposed that the appellant even did not spare her for sex even on the day the appellant's mother expired. She also stated that the appellant forced her to have sex in front of their daughter," the High Court noted.

It said that unshaken cross-examination about the sexual conduct of the appellant need not be disbelieved by this Court.

Besides, there was no serious challenge against the narration of sexual conduct of the appellant referred to in the chief examination.

Regarding the marital rape itself, the Court said that a husband disregarding the sexual autonomy of wife is marital rape though it cannot be penalised.

"Marital rape occurs when husband is under notion that body of his wife owe to him. In Anglo-American tradition, derived from feudal Norman custom allows a woman subordinate to the male through the legal status of marriage and, the individual existence is suspended under marital unity. In patriarchal system, husband also has similar approach to woman," the judgment said

But this does not hold good in modern social jurisprudence.

"Treating wife's body as something owing to husband and committing sexual act against her will is nothing but marital rape," the Court made it clear.

The Court also explained the important of bodily autonomy in a marital relationship.

"Autonomy essentially refers to a state of feeling or condition one believes to possess having control over it. In matrimony, spouse possesses such privacy as invaluable right inherent in him or her as individual. Therefore, marital privacy is intimately and intrinsically connected to individual autonomy and any intrusion, physically or otherwise into such space would diminish privacy," the Court opined.

Such intrusion will constitute cruelty, the Court said.

In this case, the Court noted that the insatiable urge for wealth and sex of the husband had forced the respondent to take a decision for divorce.

"The appellant's 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 Court ruled.

It, therefore, dismissed the appeal and upheld the divorce granted by family court.

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