ALTHOUGH MARITAL RAPE IS NOT AN OFFENCE UNDER THE INDIAN LAW, IT AMOUNTS TO CRUELTY AND THEREFORE GROUND TO CLAIM DIVORCE - KERALA HC

The Kerala High Court, in a significant judgment, ruled that marital rape is a ground to claim divorce. Although marital rape is not an offence under Indian Law, it amounts to cruelty, and therefore, a wife is entitled to a divorce. The court further emphasised that spouses are treated equally in a marriage; a husband cannot claim supremacy over the wife on her body. Treating her body as you owing something and committing sexual offences against her will amounts to marital rape.

A division bench of Justices A Muhammed Mustaque and Kauser Edappagth was hearing an appeal by the husband against the order passed by the family court, whereby the lower court allowed divorce on the ground of cruelty.

BACKGROUND

The couple had two children born after their marriage. The Appellant being a doctor engaged in the real estate business. He repeatedly sought financial assistance from the respondent's father, who is an affluent businessman. The Appellant physically and mentally harassed his wife, and hence the respondent filed a divorce petition on the ground of harassment and demand for money.

The High Court noted the lower Court's observation that the Appellant treated the respondent as a money minting machine. His father in law also made complaints against him and sought police protection. The High Court further placed strong reliance on the wife's testimony regarding the sexual conduct of the husband. "The Appellant committed forceful sex on the wife while she was sick and bedridden. She was subjected to the worst form of unnatural sex against her will. The Respondent was also forced to have sex in front of her daughter."

The Court explained the importance of body autonomy in a relationship and said that the husband's act could not be considered part of normal conjugate life. Therefore, there is no difficulty in holding that the insatiable urge of the appellant amounts to cruelty. The bench dismissed the petition and upheld the divorce.

Author: Papiha Ghoshal