In a significant judgment, the Kerala High Court on July 30 ruled that a husband behaving as though his wife's body belongs to him and committing sexual acts against her will is nothing but marital rape. Though marital rape is not penalized, it is a good ground to claim divorce, the division bench added.
The high court's appeal came on a plea filed by the husband challenging a family court's decision in granting the wife's plea for divorce.
Commenting on the present case, Justices A Muhamed Mustaque and Kauser Edappagath observed that the wife's cry for divorce has been prolonged for more than a decade. "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," the bench said.
Reacting to the 12-year-delay in deciding the matter, the court said, "perhaps we are accountable for her tears" and noted that this was not a "solitary instance". "On a day-to-day basis, we see many many like her. Her whimper touches our conscience," the bench added.
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Husband's immoral disposition disregarding wife's autonomy is marital rape: HC
The high court noted that though marital rape is not penalized in India, it is a good ground to claim divorce. Asserting a women's right to self-autonomy, the high court further observed that a husband's immoral disposition disregarding the wife's autonomy is marital rape. Though such conduct cannot be penalised, it falls in the frame of physical and mental cruelty," the court said.
"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," the court remarked. It is obvious that the husband disregarded his wife's wishes, it added.
The court accepted the wife's submission when she said that her husband forced her to have sex while she was pregnant; when she was sick and bedridden; subjected her to the worst form of sexual perversion and unnatural sex against her will; did not spare her for sex even on the day the appellant's mother expired; and that she was forced to have sex with her husband in front of their daughter.
The husband's insatiable urge for wealth and sex also amounts to cruelty, the court ruled.
The court said marital rape occurs when the husband is under the notion that his wife's body belongs to him. "However, such a notion has no place in modern social jurisprudence," the court ruled. 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," the bench further added.
"Right to respect for his or her physical and mental integrity encompasses bodily integrity, any disrespect or violation of bodily integrity is a violation of individual autonomy," the court said.
In a marriage, the court reasoned spouses have the inherent right to privacy. Marital privacy is thus intimately and intrinsically linked to an individual's autonomy and any intrusion, physical or otherwise would diminish this privacy," the court observed. The bench ruled that this "essentially would constitute cruelty."
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Marital rape is alien to our penal jurisprudence: HC
In modern social jurisprudence, spouses in a marriage are treated as equal partners and the husband cannot claim any superior right over the wife either with respect to her body or with reference to individual status," the court said. "Treating wife's body as something owing to husband and committing a sexual act against her will is nothing but marital rape," it added.
The court said that just because marital rape does not attract penal consequences, nothing stops the judiciary from recognizing it as a form of cruelty while granting a divorce. The husband's unsubstantiated claims accusing the wife of adultery apart from the constant torture for money also qualifies as cruelty.
Legislation on divorce curtails freedom through defined grounds: HC
The court noted that divorce laws and society was such that though an individual had the right to choose their partner, they did not have free will to dissolve failed relationships. "Legislation on divorce curtails freedom through defined grounds," the court said.
Though individuals have the right to choose their partner, however, divorce laws are such that it is difficult to dissolve failed relationships, the court observed.
"Law on divorce was enacted, reflecting deeper values of the culture of the society at that time. In those times, the social philosophy behind marriage does not recognize the dissolubility of the marriage except in extreme circumstances," the court observed.
The high court said it was time the marriage and divorce laws in our country were revamped to reflect the changing attitudes in a society where there was a shift from the social philosophy to individual philosophy.
"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," the division bench said.
"This is what really happens on the dismissal of the divorce petition. This case, like many other cases before us, depicts a sordid tale of a woman losing a precious part of her life in a battle of fate. That fate was not chosen by her; that is imposed on her vis-a-vis legal heteronomy," the judgment read.
"Fine balancing of individual choice and individual's best interest is missing in such law," the court added.
The court said it was time to have a common law on marriages and divorces for all communities. 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," the court said.
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 concluded.
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