India / Marital rape good ground for divorce: HC as woman forced to have sex in front of daughter

Kochi: The Kerala High Court on August 6 upheld marital rape as a solid ground for seeking a divorce.

According to a report by the Live Law, the Kerala HC said: "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."

Upholding marital rape as a ground for divorce, a Division Bench of Justice A Muhamed Mustaque and Justice Kauser Edappagath observed that: “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 a divorce. We, therefore, are of the view that marital rape is a good ground to claim divorce.”

The woman who had sought divorce was reportedly subject to the worst form of sexual perversion and physical harassment.

According to the Live Law report, the appellant (husband) forced himself on the woman even when she was sick and also on the day his mother passed away. Further, she was forced to have unnatural sex and engage in sexual intercourse in front of their minor child.

Taking cognizance of the torture she was subject to, the Kerala HC observed: “The case in hand 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.”

The court further observed that marital rape occurs when the husband tends to believe that the wife owes her body to him – a notion that has no place in modern social jurisprudence. It added that no husband can claim superior rights over his wife either with respect to her body or her individual status.