REVOLUTIONARY STEP OF KERALA HIGH COURT: MARITAL RAPE A GROUND FOR DIVORCE

In India, law doesn't recognise marital rape. Marital rape means a forceful intercourse with the spouse. The Indian Penal Code penalises rape but it fails to recognise non-consensual sex within marriage. However, the Supreme Court of India in the case of Independent Thought v. Union of India 2017 partially penalised marital rape by deciding that forceful sexual intercourse with a wife between the 15years of age to 18years constitutes rape. The Apex Court did not recognise forceful intercourse within a marriage after the age of 18years as rape. Furthermore, marital law is not even provided as a ground to get out of wedlock. The current status is that marital rape is not recognised by civil law or by criminal law. In order to resolve this issue the Kerala High Court pioneered in taking such a revolutionary step which might change the current situation.

BENCH

Justice A.Muhamed Mustaque and Dr. Justice Kauser Edappagath

FACTS

The present case is an appeal against the order of Family Court of divorce on the grounds of cruelty. The Family Court observed that appellant i.e. husband has treated her wife with cruelty beyond toleration and hence granted divorce in favour of wife. The husband i.e. the appellant was a practising doctor at the time of marriage but later he shifted to real-estate business. The wife i.e. the respondent has alleged that she has been subjected cruelty and harassment in respect of demand of money. She also said that her father had given approximately 77lakhs to her husband on various occasion. Furthermore, she has also alleged that she has been subjected to the worst form of sexual perversion and physical harassment. She deposed that she had been subjected to unnatural sex many times and also he committed forced sex when she was sick, bedridden and even on the day when his mother passed away. She further alleged that he had committed forceful sex on her in front of their daughter and also accused her of having illicit relationship with the caretaker of the house and driver.

Hence the appellant filed the appeal against the divorce decree granted by the Family Court.

ISSUES

• Whether the divorce granted by the Family Court valid?
• Whether marital rape falls within the ambit of cruelty as ground for divorce?

JUDGMENT

The Hon'ble High Court upheld the divorce granted by Family Court and also held that woman are not the property of man and therefore cannot be subjected to such intolerant level of cruelty. It held that marital rape is a valid ground for divorce though not recognised by the statues.

ANALYSIS

The Court in the present case laid down marital rape as a ground for divorce and hence conferred the status of legal recognition to the same. It said that "Sex in married life is the reflection of the intimacy of the spouse. Marital rape occurs when the husband is under the notion that the body of his wife owes to him." The court herein suggested that women are not the property of men after marriage, the marriage doesn't take away women's right to have consensual sex. The marital relationships do not justify the non-consensual sex; their sexual sanctity cannot be taken away in any case. Furthermore, in a marriage both the partners are at equal level and husband cannot claim any superior right over woman in respect to her body or individual status. The court emphasised that "Treating a wife's body as something owing to husband and committing sexual acts against her will is nothing but marital rape." In marriages also spouse have intrinsic right to privacy which every human being possesses. This right to privacy cannot be violated by any person, not even by husband by virtue of the marriage. The court in the present case has held that husband has subjected the wife to inhumane sexual intercourse which has been sufficiently established and hence this amounts to marital rape. The court said that "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 also held that unsubstantiated claims of illicit relationships by the husband also amounts to cruelty.

The judgment of Kerala High Court has been the one of the landmark decisions. It sets the wheel of change moving towards acceptance of the existence of marital rape legally. Though, the marital rape has been recognised as the ground for divorce, it might be penalised soon. The verdict of the court is a progressive step towards the betterment of the society.