'Marital Rape a Form of Cruelty, Is Ground to Claim Divorce': Kerala HC

The court rejected the appeal of a man against divorce, saying he treated his wife’s body as something that is owed and committed sexual acts against her will.

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New Delhi: The Kerala high court recently observed that marital rape was good ground to claim divorce, LiveLaw has reported.

Dealing with a doctor’s plea against a family court ruling which allowed a petition for divorce on the ground of cruelty, the high court said the fact that marital rape is not recognised under penal law does not inhibit the court from recognising the same as a form of cruelty to grant divorce.

A division bench of the Kerala high court, comprising Justices A. Muhamed Mustaque and Dr Kauser Edappagath, rejected the doctor’s appeal against divorce. It said treating a wife’s body as something that is owed to the husband and committing sexual acts against her will is nothing but marital rape.

The order of the bench was passed on July 30 but uploaded on Friday, August 6. The court stated in the order that the “right to respect for his or her physical and mental integrity encompasses bodily integrity” and that “any disrespect or violation of bodily integrity is a violation of individual autonomy”.

The bench stressed the need for having a common code of law for all communities, at least for the purpose of marriage and divorce.

Also read: Why Is Outlawing Marital Rape Still a Distant Dream in India?

“Individuals are free to perform their marriage in accordance with personal law, but they cannot be absolved from compulsory solemnisation of the marriage under secular law. Time has come to revamp the marriage law in our country. 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,” it stated.

A family court had earlier allowed a petition for divorce on the ground of cruelty and dismissed the man’s petition for restitution of conjugal rights.

The high court held that the woman has been driven to distress and was desperate to get a divorce. She had even abandoned all her monetary claims, the court noted.

“A spouse has a choice not to suffer and law cannot compel a spouse to suffer against his or her wish by denial of divorce by the court,” it said.

The bench also observed that the framework of divorce law must be with an objective to help individuals take a decision with respect to their own affairs and it should promote a platform at different levels to enable individuals to exercise free choice.