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The Kerala High Court in a landmark judgement, has held marital rape to be a form of cruelty and a valid ground for divorce. The Division bench of Justices A Muhamed Mustaque and Dr Kauser Edappagath held that 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, under the Hindu personal law.
Certainly, this has no direct implication on the lacuna in law making marital rape an offence, it is a significant precedent in identifying and upholding the factum of marital rape in a matrimonial relationship.
The matrimonial appeal was filed by the husband against the family court’s order allowing a petition for divorce on the ground of cruelty and dismissal of a petition for restitution of conjugal rights. The appellant is a doctor, but had real estate business and the respondent (wife) is a realtor. They got married in 1995 and have two children. The wife had alleged in her divorce petition that the real estate business failed due to the profligate lifestyle of the appellant. She mentioned sexual perversion and physical harassment to be a part of cruelty.
The family court found that the respondent tolerated harassment for the sake of marriage and also took into consideration the oral testimony of the respondent in regard to sexual perversity. The court also found that unsubstantiated imputation of the illicit relationship of the respondent with the caretaker and driver, made by the appellant, would also amount to cruelty.
Marital rape ground for divorce
The court held that sex in married life is the reflection of the intimacy of the spouse. “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,” the court held. The court pointed out that marital rape is alien to penal jurisprudence in India.
“Marital rape occurs when husband is under notion that body of his wife owe to him. In modern social jurisprudence, spouses in marriage are treated as equal partners and husband cannot claim any superior right over wife either with respect to her body or with reference to individual status. Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape,” the court observed.
The court said that any disrespect or violation of bodily integrity is a violation of individual autonomy and in matrimony, a spouse possesses such privacy as an invaluable right inherent in him or her as an individual. The court held that marital privacy is intimately and intrinsically connected to individual autonomy and any intrusion into such space would diminish privacy which would essentially constitute cruelty.
“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 divorce. We, therefore, are of the view that marital rape is a good ground to claim divorce,” said the court.
The court, thus, dismissed the appeal and upheld the divorce granted by the family court.
Marital rape in penal jurisprudence
The courts have so far had a ‘touch and go’ approach when it comes to marital rape. In 2018, the apex court, while striking down adultery as an offence under IPC, touch upon contours of marital rape by stating that “curtailing the sexual autonomy of a woman or presuming the lack of consent once she enters a marriage is antithetical to Constitutional values.”
The Supreme Court has time and again, whenever it has been seized of the matter, has refused to criminalise marital rape while holding that it was for the legislature to make laws.
In 2015, the apex court had refused to entertain a Delhi woman’s plea to declare marital rape a criminal offence, saying it wasn’t possible to order a change in the law for one person. Her position was of a survivor as she complained that her husband repeatedly resorted to sexual violence but she was helpless because of the legal position.
In 2019, the Supreme Court once again refused to entertain a plea filed by a lawyer, since the Delhi High Court was already seized of the matter.
In 2018, Gujarat High Court (in Nimeshbhai Desai vs State Of Gujarat; decided on 2 April, 2018) has recognised marital rape to be a “disgraceful offence” that has scarred the trust and confidence in the institution of marriage and also admitted women’s sufferings due to non-criminalisation of the offence. The government is hesitant to criminalise the marital rape because it would require them to change the laws based on the religious practices, including the Hindu Marriage Act, 1955 which says a wife is duty bound to have sex with her husband, the court had observed. The court could not prosecute the husband for rape and instead directed that section 354 of IPC, for outraging the modesty of the wife, be invoked.
In 2017, The Supreme Court in Independent Thought vs Union of India (decided on October 11, 2017) read down the exception 2 to section 375 of IPC as follows: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years, is not rape”. This was done to make the penal law consistent with the provisions of Protection of Children from Sexual Offences, (POCSO) Act which criminalises sexual acts with a person below 18 years of age. Thus, only criminalising marital rape if the wife is below 18 years of age.
Data and figures
According to a National Family Health Survey report (2015), 5.4 percent of married women between 15-49 years of age in India reported that their husbands had physically forced them to have sexual intercourse against their will. At least 2.5 per cent women reported that their husbands physically forced them to perform any other sexual act without their consent.
The Justice Verma committee, 2013 had recommended that marital rape be made an offence under IPC and it be specified that relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity. The Committee had also stated that any intimate relationship of the complainant and the accused should not be regarded as a mitigating factor for justifying a lower sentence for the crime.
In 2016, the government told the Rajya Sabha the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to factors such as illiteracy, poverty, social customs and values, religious beliefs and mindset of the society to treat marriage as a sacrament.
This pronouncement by Kerala High Court, albeit in civil jurisprudence, could open gateways for a real discourse on inclusion of marital rape as an offence in our penal code.
The order may be read here:
Related:
Why Indian courts tip toe around issue of marital rape
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