“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,” the Kerala High Court said.

A man holding a woman's hand at their weddingImage for representation
news Court Friday, August 06, 2021 - 18:36

“Marital rape amounts to cruelty and is a ground for divorce” — a two-judge bench of the Kerala High Court has passed a landmark order acknowledging a woman’s autonomous and individual rights in a marriage. The bench of Justices A Muhamed Mustaque and Kauser Edappagath delivered the order on July 30 while hearing a woman’s petition seeking a divorce from her husband on grounds of harassment and cruelty.

“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,” the court has held in its order. 

The court was hearing a woman’s petition for divorce on the grounds of cruelty and sought the dismissal of her husband’s petition for the restitution of conjugal rights. The couple had an arranged marriage in February 1995 and have two children. However, a few years later, she filed for divorce and a family court had ruled in her favour. The man then moved Kerala High Court, which was hearing his appeal.

The woman had detailed in her petition that her husband never practiced his occupation as a doctor and instead got into real estate business and construction. However, he was not successful at it, she said. The woman told the court that she had given 501 gold sovereigns at the time of marriage as dowry, besides a car and a flat, but he kept harassing her and kept demanding money from her. The woman told the court that her father, who is a businessman, gave him Rs 77 lakh at different occasions, and the gold given to him by her family was also misappropriated. 

The Kerala High Court noted the submissions that the woman made in her divorce petition, detailing the physical harassment that she faced at the hands of her husband. The woman alleged she faced cruelty in the form of “perversion and physical harassment.” The woman had said that even during her pregnancy, the man had abused her. “She also deposed that the appellant (her husband) committed forceful sex when she was sick and bedridden. She also deposed that she was subjected to the worst form of sexual perversion and unnatural sex against her will. The respondent (woman) deposed that the appellant even did not spare her for sex even on the day the appellant (man)’s mother expired. She also stated that the appellant (her husband) forced her to have sex in front of their daughter,” the Kerala High Court noted in its order. The woman also said that husband also accused her of infidelity. 

The High Court noted the family court’s findings in 2014, that the husband was treating the woman as a “money-minting machine” and that she “tolerated harassment for the sake of marriage,” and chose to file a petition for divorce “when harassment and cruelty reached a level beyond toleration.” The family court had found that the man’s “unsubstantiated imputation” of the woman having an extra-marital affair amounts to cruelty.

‘Husband’s act and conduct constituted mental cruelty’

Delivering the judgment in the woman’s favour, the Kerala High Court held that the woman never felt any security or affection or care from the man’s side. “This, coupled with the fact of constant harassment demanding money, has caused mental pain, agony and suffering to her. We have no hesitation in holding that the act and conduct on the side of the appellant constituted mental cruelty,” the court said. 

The court held that in modern society, spouses in marriage 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 wife's body as something owing to husband and committing sexual act against her will is nothing but marital rape,” the High Court said.

The High Court said that privacy is an invaluable right and since marital privacy is intimately and intrinsically connected to an individual’s autonomy, any intrusion — physical or otherwise — into such a space would diminish privacy. “This essentially would constitute cruelty,” the court held.

“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 bench said. 

The court also said that the man’s “insatiable urge for wealth and sex of a spouse would also amount to cruelty.”

‘Time to revisit grounds for divorce’

In an epilogue to the judgment, the bench of Justices A Muhamed Mustaque and Kauser Edappagath also spoke of revisiting the grounds for divorce in the country, stating that the current grounds — cruelty, adultery, desertion — have a trace of heteronomy. “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.” This is what really happens when a divorce petition is dismissed, the court said. 

“Individuals have the freedom to share their relationships through the voluntary choice of a partner. But the same individuals do not have the freedom to separate or break the relationship of their will,” the court said. “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 Kerala High Court bench said, adding that it will not comment further as the issue has to be examined properly. 

The role of law, the court said, is “only to provide or lay down measures to determine the path for appropriate decisions by the individuals.” 

“Paternalistic intervention through legislation must be limited to help and aid parties in taking a decision for their own good. Therefore, 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 said.

“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,” the court said.

Also read: Using a woman’s body part to mimic sexual penetration is rape: Kerala HC redefines rape

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