Treating a wife’s body as something owing to the husband and committing a sexual act against her will is marital rape, the Kerala High Court has said.
The observation came while the court dismissed two appeals filed by a man challenging the decision of a family court granting a divorce.
A bench of the High Court, comprising Justice A Muhamed Mustaque and Justice Kauser Edappagath, said marriage and divorce must be under the secular law and time has come to recast the marriage law of the country.
“Merely for the reason that the law does not recognise marital rape under penal law, it does not inhibit the court from recognising 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 bench said.
The court dismissed the appeals filed by the husband against the judgment of a family court allowing a petition for divorce on the ground of cruelty and dismissing another petition by the husband seeking conjugal rights.
“Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape. 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 its order on July 30.
In modern social jurisprudence, the court said, 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.
“In this case, the insatiable urge of the husband for wealth and sex forced the respondent to seek divorce. The appellant’s licentious and profligate conduct cannot be considered as part of normal conjugal life. Therefore, we have no difficulty in holding that insatiable urge of a spouse for wealth and sex will also amount to cruelty,” the court said.
It said the appellant failed to substantiate imputation of adultery to the respondent (wife). “Unsubstantiated allegations of adultery will also constitute mental cruelty. Therefore, we are of the view that the findings of facts as above clearly establish a ground for cruelty warranting divorce,” it said.
In desperation for obtaining a divorce, the court said, she has forsaken and abandoned her monetary claims.
“Her cry for divorce has been prolonged in the temple of justice for more than a decade (12 years). She still awaits the 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,” the court said.
“We see this is not a solitary instance. On a day-to-day basis, we see many many like her. Her whimper touches our conscience,” it said.
The couple married in 1995 and has two children. The court noted that the husband, a doctor by profession, received from his wife’s father 501 sovereigns of gold, a car and a flat at the time of marriage.
The family court found that the husband was treating the wife as a money-minting machine and that she had tolerated harassment for the sake of marriage, and chose to file a petition for divorce when harassment and cruelty reached beyond toleration.