With an urge to recast the Indian marriage laws, Kerala High Court noted that marital rape can be accepted as a ground to grant divorce by recognising it as a form of cruelty. The division bench dismissed the two appeals filed by a husband challenging the divorce granted by a family court in 2014.
“Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape. Right to respect for his or her physical and mental integrity encompass bodily integrity; any disrespect or violation of bodily integrity is a violation of individual autonomy,” noted Justice A Muhamed Mustaque and Justice Kauser Edappagath.
In the present matter, a doctor married a realtor’s daughter in February 1995. They gifted him a car, a flat and 501 sovereigns of gold. Her father had also given the man Rs 77 lakh when he suffered heavy business losses.
The woman also complained that she went through various kinds of harassment. She also alleged that she was forced to have sex sick, bedridden, and even on the day the husband’s mother expired. She filed for divorce in 2009.
“An insatiable urge for wealth and sex of a husband had driven a woman to distress. In desperation for obtaining a divorce, she had forsaken and abandoned all her monetary claims. Her cry for divorce has been prolonged in the temple of justice for more than a decade,” the bench stated.
The bench went on to add, “Sex in married life was the reflection of the spouses’ intimacy. In this case, the wife was subjected to sexual perversions against her will. A spouse in marriage had a choice, a choice not to suffer, which was fundamental to the autonomy guaranteed under natural law and the Constitution. Law could not compel a spouse to suffer against his or her wish by denial of divorce by the court.”
“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 a divorce. We, therefore, are of the view that marital rape is a good ground to claim divorce,” the bench said.
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.
In modern social jurisprudence, spouses in marriage are treated as equal partners and husband cannot claim any superior right over wife either with respect to her body or with reference to individual status. Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape.
Right to respect for his or her physical and mental integrity encompass bodily integrity, any disrespect or violation of bodily integrity is a violation of individual autonomy.
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 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.
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 Insatiable urge for wealth and sex of a spouse would also amount to cruelty.
Unsubstantiated allegations of adultery would also constitute mental cruelty.
The pleadings canvassed on the grounds for divorce in such proceedings are more destructive of the relationship dismissing any chance of reunion.
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. Law cannot compel a spouse to suffer against his or her wish by denial of divorce by the court.
In a changed scenario of marriage in the society, shifting from the social philosophy to individual philosophy, we are afraid whether the present divorce law on enumerated grounds would stand to the test of constitutionality. Fine balancing of individual choice and individual’s best interest is missing in such law.
The framework of divorce law must be with an objective to help individuals to take a decision on their own affairs. This framework must promote a platform at different levels to enable individuals to exercise free choice.
The court should not wield any power to decide on the choice of the individual. The court should articulate its power in a scientific temper to help individuals to make decisions on their own affairs.
Our law also should equip to deal with marital damages and compensation. We need to have a law dealing with human problems with a humane mind to respond.
There cannot be any difficulty in having a common code of law to all communities, at least for marriage and divorce on the above line. Individuals are free to perform their marriage in accordance with personal law, but they cannot be absolved from compulsory solemnization of the marriage under secular law.
Marriage and divorce must be under the secular law; that is the need of the hour. Time has come to revamp the marriage law in our country.
Marriage Cannot Be A Licence To Rape
Under Section 375 of the Indian Penal Code, non-consensual sexual intercourse by a man with his wife, if she is over 15 years, does not amount to rape.
Though marital rape violates Article 14 and Article 21 of the Indian Constitution, it is not penalised under the law. 36 countries in the world have not decriminalised marital rape and India is one among them.
“A woman who is raped by a stranger lives with a memory of a horrible attack; A woman who is raped by her husband lives with her rapist.”
As per recent research by the United Nations Population Agency (UNFPA), intimate partner violence is the most common form of domestic violence. As of May 2019, the study showed that over 29% of women in India, 25% in Nepal, 54% in Bangladesh, 24.5% in Pakistan, and 27% in Sri Lanka have been the victim of physical/sexual abuse by an intimate partner in their lifetime.
Cannot Criminalise Marital Rape!
In 2013, Justice JS Verma committee was the first to propose that marital rape should be made a criminal offence. The recommendation was rejected by the government stating that the concept of marital rape, as understood internationally, cannot be suitable applied in the Indian context due to various factors.
“Parliament has extensively debated the issue of marital rape and considered that it was not an offence of rape. Therefore, it cannot be considered as a criminal offence,” stated the Supreme Court bench comprising Justice M.B. Lokur and Justice Deepak Gupta.
While staying the arrest of a man accused of raping his ex-live-in partner, former Chief Justice of India Sharad Arvind Bobde questioned, “If a couple is living together as man and wife, the husband may be a brutal man, but can you call the act of sexual intercourse between a lawfully wedded man and wife as rape.”
Another Remarkable Judgment By Kerala High Court
In another landmark ruling announced this week, Kerala High Court expanded the definition of rape and non-penetrative acts that provide sexual gratification are considered rape under Indian laws
“when the body of the victim is manipulated to hold the legs together for the purpose of simulating a sensation akin to penetration of an orifice; the offence of rape is attracted. When penetration is thus made in between the thighs so held together, it would certainly amount to “rape” as defined under Section 375,” noted Justice K Vinod Chandran and Justice Ziyad Rahman.