The long due demand for recognition and criminalisation of marital rape in India has not manifested in any law against it yet but recently in an important development, the Kerala High Court has ruled that marital rape is a valid ground to seek a divorce.
A division Bench of Kerala HC consisting of Justices A Muhamed Mustaque and Kauser Edappagath held that albeit marital rape is not criminalised under Indian law, it certainly amounts to cruelty and therefore forms a good ground for divorce.
“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 divorce. We, therefore, are of the view that marital rape is a good ground to claim divorce,” Kerala High Court ruled.
Kerala HC was hearing an appeal by a husband in which he has challenged a judgment of a family court that had earlier granting divorce on the ground of cruelty and dismissal of a petition for restitution of conjugal rights, Bar and Bench reported.
The Court emphasised that a husband cannot claim supremacy over the wife’s bodily autonomy or her individual status because in modern social jurisprudence spouses in a marriage are treated equally.
“Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape,” the Bench held.
Emphasising the importance of bodily autonomy in a marital relationship, the Court opined:
“Autonomy essentially refers to a state of feeling or condition one believes to possess having control over it. In matrimony, spouse possesses such privacy as invaluable right inherent in him or her as individual. Therefore, marital privacy is intimately and intrinsically connected to individual autonomy and any intrusion, physically or otherwise into such space would diminish privacy.”
Intrusion on the martial privacy hence amounts to cruelty, the Kerala High Court said.
Also read: A Question for The Chief Justice of India: Is Marriage a Justification for Rape?
