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Committing sexual acts against wife's will amounts to marital rape, good ground for divorce: HC

A spouse in a marriage has a choice not to suffer, which is fundamental to the autonomy guaranteed under natural law and the Constitution, said the court

Published: 06th August 2021 03:42 PM  |   Last Updated: 06th August 2021 07:41 PM   |  A+A-

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By Express News Service

KOCHI: In a key observation that will define the sexual relationship in a marriage, the Kerala High Court on Friday said committing sexual acts against a wife's will is nothing but "marital rape" and is a good ground to claim divorce.

"In this case, the insatiable urge for wealth and sex of the husband had forced the wife to take a decision for divorce. His licentious and profligate conduct cannot be considered as part of normal conjugal life. Therefore, we have no difficulty in holding that insatiable urge for wealth and sex of a spouse would also amount to cruelty," held the Bench, comprising Justice A Muhammed Mustaque and Justice Kauser Edappagath, while dismissing the appeal of the husband challenging a Family Court order allowing a plea of the wife for divorce on the ground of cruelty.

The Bench said that the right to respect for his or her physical and mental integrity encompasses bodily integrity. Any disrespect or violation of this bodily integrity is a violation of individual autonomy. Merely for the reason that the law doesn't recognise marital rape under penal law doesn't inhibit the court from recognizing the same as a form of cruelty to grant a divorce.

The court added that this case depicts a story of the struggle of a woman within the clutches of law to “not suffer” in the bondage of legal tie.

The insatiable urge for wealth and sex of her husband had driven the woman to distress. Desparate to obtain a divorce, she had forsaken and abandoned all her monetary claims. But her cry for divorce has been prolonged in the temple of justice for more than a decade (12 years). "Perhaps we are accountable for her tears. We see this is not a solitary instance," observed the court.

ALSO READ | Time to revamp law and have common code for marriage and divorce, says Kerala HC

Pompous and hedonistic lifestyle and culture brought marked changes to our outlook, the court went on to note. The same is also reflected in the concept of marriage. If marriage is seen as a symbol to project status without reflecting the values the individuals or society would cherish to profess, we may miss the basic concept required for marriage. 

In this specific case, the husband was a qualified medical doctor but he never practised as a medical doctor. He engaged in the real-estate business. His father was a well-known doctor in Kozhikode. The woman's family had given 501 gold sovereigns at the time of marriage besides a car and flat. Her father also gave Rs 77 lakh to the appellant on different occasions, claimed the wife. While granting a divorce, the family court had observed that the husband treated his wife as a money-minting machine.

The bench observed that "matrimonial relationship is all about contentment. When there is harmony at home, that leads to contentment in marriage. The harmony is evolved through mutual respect and trust. The debt of the husband sparked the dispute between him and the wife."

The court said that sex in married life is a reflection of the intimacy of the spouse. In this case, she was subjected to all sorts of sexual perversions against her will. A spouse in a marriage has a choice not to suffer, which is fundamental to the autonomy guaranteed under natural law and the Constitution. Law cannot compel a spouse to suffer against his or her wish by denial of divorce by the court.



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  • RAJARAMAN.V.

    There are crores of legal issues pending down from trail court to SC. Think judiciary wasting precious working days over subject like sex
    2 months ago reply
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