A division bench of the Kerala High Court dismissed a husband’s appeal against divorce, saying that treating a wife’s body as if it belonged to him and performing sexual actions without her consent amounts to marital rape.
The Kerala High Court has ruled that marital rape is a valid reason for divorce in India, despite the fact that it is not a punishable offense in India. The bench was considering a petition from a man who was contesting a family court divorce judgement. The woman was harassed and made to participate in sexual intercourse, according to the family court’s decision. The husband was treating his wife like a money-making machine, according to the family court. The court also determined that the victim tolerated harassment for the sake of the marriage, and that she opted to file a divorce petition when the harassment and cruelty became unbearable. Marital rape, according to the High Court, falls within the category of “physical and mental abuse.”
The court in its order 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. Marital rape is alien to our penal jurisprudence.”
According to the court’s ruling, treating a wife’s body as if it belonged to her husband and performing a sexual act against her will equate to marital rape.
“The right to respect 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 order said; “Merely for the reason that the law does not recognize marital rape under penal law, it does not inhibit the court from recognizing the same as a form of cruelty to grant divorce.”
The division bench of justices A Muhammad Mushtaq and Kauser Edappagath rendered this critical decision in an appeal against a divorce order issued by a family court.
The order said, “The case in hand depicts a story of the struggle of a woman within the clutches of law to give the primacy of choice “not to suffer” in the bondage of a legal tie. An insatiable urge for wealth and sex of a husband had driven a woman to distress. In desperation to obtain a divorce, she has forsaken and abandoned all her monetary claims. Her cry for divorce has been prolonged in the temple of justice for more than a decade (12 years).”
The order added: “She still awaits a final bell to answer her prayers and cry. She is unable to digest the delay involved in responding to a request for the separation. Perhaps we are accountable for her tears. We see this is not a solitary instance. On a day-to-day basis, we see many women like her. Her whimper touches our conscience. We shall advert to this enigma while concluding this judgment.”
This is a ground-breaking judgement in the history of this country, for marital rape is still not a punishable offense in India, and is still legal by law of this country. India happens to be one of the 36 countries where marital rape is not illegal. Hopefully, this revolutionary judgement would change the ways and the laws of this country in the future, and would make this country a better, safer place for women.