'Husband's Licentious Disposition Disregarding Autonomy Of Wife Is Marital Rape': Kerala High Court Upholds Marital Rape As Valid Ground To Claim Divorce

The Kerala High Court in a significant judgment upheld that marital rape, although not penalised in India, is a good ground to claim divorce while dismissing a set of two appeals filed by a husband challenging the decision of the Family Court. 

A Division Bench of Justice A. Muhamed Mustaque and Justice Kauser Edappagath while empathizing with the situation of the woman 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."

After perusing the facts of the case, the Court remarked as such; 

"The case in hand, in fact, 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)."

Facts: 

The appeals were preferred by the husband against the judgment of the Family Court allowing a petition for divorce on the ground of cruelty and dismissing a petition for restitution of conjugal rights filed by the appellant.The Family court had observed that the appellant treated his wife as a money-minting machine and that she had chosen to file for divorce when the harassment and cruelty reached a level beyond toleration.

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.

She was allegedly subjected to constant harassment and demand for money in this regard. It was also the case of the respondent that her father had given approximately Rs.77 lakhs to the appellant on various occasions.

The most serious accusation leveled against the appellant was that of the worst form of sexual perversion and physical harassment. The wife deposed in her unshaken cross-examination that the appellant committed forceful sex when she was sick, bedridden, and even on the day his mother expired. She also deposed that she was subjected to unnatural sex against her will, adding that she was forced to engage in sexual intercourse even in front of their daughter.

Apart from this, the respondent contended that her husband repeatedly accused her of having illicit relationships with the caretaker of the apartment, which could not be substantiated with evidence by the appellant. 

Advocate P.B.Sajith represented on behalf of the appellant and Senior Advocate Sumathi Dandapani appeared for the respondent.

Court's Observations:

The Division Bench sympathized with the situation of the respondent-wife and similarly placed women who continued to endure such harassment for the sake of marriage. 

Sex in married life is the reflection of the intimacy of the spouse. The evidence given by the woman clearly establishes that she was subjected to all sorts of sexual perversions against her will. It is obvious that the appellant disregarded the wishes and feelings of the respondent," the Court remarked. 

It was also found that marital rape occurs when the husband is under the notion that the body of his wife owes to him. However, such a notion has no place in modern social jurisprudence, the court found, and asserted that spouses in marriage today are treated as equal partners and the husband cannot claim any superior right over wife either with respect to her body or with reference to individual status.

Treating a wife's body as something owing to husband and committing sexual acts against her will is nothing but marital rape, it was emphasised. 

In matrimony, spouse possesses such privacy as an invaluable right inherent in him or her as an individual. Therefore, marital privacy is intimately and intrinsically connected to individual autonomy and any intrusion, physically or otherwise into such space would diminish privacy. This essentially would constitute 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 unsubstantiated imputation of the illicit relationship of the respondent with the caretaker and driver apart from the constant torture for money also qualify as cruelty, the Court asserted, Therefore, it was held that the findings of facts in the matter clearly establish a ground for cruelty warranting divorce.

Therefore, Division Bench upheld the decision of the Single Judge and dismissed the appeals.

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