The Kerala High Court on Friday observed that marital rape was a valid reason to seek divorce, Live Law reported
“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,” a bench of Justices A Muhamed Mustaque and Kauser Edappagath said.
The High Court noted that in modern social jurisprudence, a husband cannot claim supremacy on the body or individual status of the wife.
“Treating a wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape,” the judges said.
The High Court was hearing an appeal moved by a husband against a family court judgement that allowed, on grounds of cruelty, a divorce petition moved by his wife.
The woman told the High Court that the man used to force her to have sex even when she was unwell and on the day his mother died. The husband also coerced her into having unnatural sex, the woman said. She also said that he engaged in sexual intercourse in front of their daughter.
Further, she said that her husband repeatedly accused her, without any evidence, of having illicit relationships with the caretaker of the apartment where they stayed.
She also submitted that her husband was a practicing doctor at the time of their marriage, but later he started a real estate business which did not do well. After this, the husband harassed her and demanded money from her family. The woman said that her father gave nearly Rs 77 lakh to her husband.
The court dismissed the husband’s appeal observing that marital privacy was linked to individual autonomy.
“...any intrusion, physically or otherwise into such space would diminish privacy,” the court observed. “This essentially would constitute cruelty.”
The court added that unsubstantiated allegations of illicit relationships against the woman and torture for money also amounted to cruelty.
The bench conceded that there were no penal provisions for marital rape, noting that courts should not “wield any power” to decide on the choice of an individual.
“A spouse in a marriage has a choice, a choice not to suffer, which is fundamental to the autonomy guaranteed under natural law and the Constitution,” the court said. “Law cannot compel a spouse to suffer against his or her wish by denial of divorce by the court.”