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
Rape allegations become false once marriage is admitted: Allahabad HC
Kerala HC reclaims right of extra-judicial divorce for Muslim women
SC stirs the hornet’s nest on rape by intimate partner

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Although India does not appear on the world divorce statistics records, a global divorce repository (compiled by the University of Illinois, USA), because it lacks nationwide data, the volume of divorces handled by courts in Kerala and the other 11 states indicates that couples are more willing than ever to separate than stay–as tradition still demands–in bad marriages.
 
The number of divorces appears large in a nation where courts tend to be conservative in granting legal separation, but they may be a fraction of failing or failed marriages because many Indian women stay married despite abuse, as we later explain.

 
The data–in this March 2015 government reply to the Lok Sabha, Parliament’s lower house–are compiled from family courts in the 12 states and are inadequate to compare India’s divorce rates clearly with other countries or across states. The government does not maintain divorce statistics.
 
It is hard to estimate the divorce rate–calculated against the number of married people, not the general population, as is done with, say, with crime and accident rates–because India does not maintain any divorce data. Most use the term “divorce rate” loosely in India, since the data do not reveal divorces, only cases before the courts.
 
What is clear is that divorce cases before family courts are steadily growing.
 
However you look at it, Kerala has most divorces
 
For the year 2014-15, almost every state reported more divorces awaiting court verdicts than were settled in 2014, according to the government’s reply to Parliament.
 
However, none of the other 11 states–five of which are more populous–had more divorce cases than Kerala: 47,525 cases in 2014.
 
Maharashtra witnessed half as many divorces as Kerala, which has a population a third the size of Maharashtra.
 

Source: Lok Sabha
 
What is the role of education and employment?
 
As we cautioned, it is hard to say why divorces are growing after analysing data from 12 of 36 states and union territories.
 
We did find that three of the top five states reporting divorces–Kerala, Maharashtra and Karnataka–have more literate women than the all-India average; women’s participation in the labour force in these states is also slightly higher than the all-India rate.
 
The correlations are not always evident.
 
For instance, female literacy in Madhya Pradesh–number three in divorce cases–is 6 percentage points lower than the national average and female labour force participation rate is equal to the national average.
 
In Haryana–number five in divorce cases–the female literacy rate is equal to the national average of 65%, but female workforce participation is 12 percentage points lower than the Indian average. The state is among the top five states for divorce cases because data are only from 12 states–Haryana had 80% fewer divorce cases than Kerala.
 

Source: Census 2011, NSSO 68th round Key Indicators of Employment and Unemployment in India 2011-12
 
More divorces likely if women have a choice
 
Women in India often remain in abusive marriages for a variety of reasons, including a lack of economic independence, poor knowledge of legal rights and family pressure.
 
Six of 10 men surveyed in India had admitted perpetrating violence against their wives at some point, IndiaSpend reported in November 2014, quoting an extensive study by the United Nations Population Fund and the International Center for Research on Women.
 
Clashing egos and differences in expectations are among reasons for divorces in cities, according to media reportage.
 
(Tewari is an analyst with IndiaSpend.)

Courtesy; IndiaSpend.com
 

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Many beauty parlours in Hyderabad old city are merely a front to arrange temporary marriages of pretty young Muslim women from poor backgrounds with aged sheikhs from Gulf countries. Occasionally, more than one girl is simultaneously married off by a pliant moulvi to the same sheikh.

Muslim women are always in the news as the subject of discussion; they are never treated as active participants in any of the minority issues or the issue of communal conflicts. The fact of the matter is Muslim women are very active at the ground level who articulate the issues at different level.

In the old city of Hyderabad where Shaheen works we find a range of issues within the family and outside. Like many other old cities, Hyderabad old city is thickly populated with Muslims. Despite the dominance of the Muslim population, the communal history of Hyderabad had enough events to hamper the social development of the community at multiple levels.

The post-independence history of Hyderabad is marred by riots and massacres between groups of Hindus and Muslims. The ‘reclamation’ of Hyderabad under ‘Operation Polo’ was followed by the political retreat of the Muslim community and development of an innate suspicion and insecurity within the community. The majority group was equally suspicious of the Muslim population and the mutual mistrust worked out into a massacred history.

Muslims in general and Muslim women in particular are poorly represented in the enforcement agencies. This combined with a lack of understanding and sensitivity to the plight of the women, makes the situation of Muslim women seeking police support/protection precarious. Women are the victims or easy targets and their position of social inferiority is an issue that needs to be examined.

Muslim women are doubly prone to exploitation and abuse; both for belonging to a minority group and also for being women. As women they are exploitable by men across the board. As Muslim women, they’re targeted with a number of stereotypes commonly associated with both “Muslimness” as well as women.

Indian Muslim women are oppressed as they face violence within the family structure, dominant religion, and internal patriarchy. While discrimination against women is widespread in India and there is a great degree of commonality in the challenges faced by women across socio-religious categories, Muslim women appear to have their problems sanctified by a narrow interpretation of their religion.
 
The patriarchal structure of Muslim society is very much acceptable even to the women who don’t live within family structure. “I need someone to take care of me and my children,” says Naseem who is now living with her fifth husband and who is ready to sell her daughter to an aged Arab.

The patriarchal setup of the family vests absolute power and influence to the men. “Women are potentially equal with men, but that equality is not achieved”, said Fatima Mernissi, Moroccan feminist writer who is no more. Women still remain subservient and servile – their lives controlled by men. Family – the closest unit of association and the primary unit of social capital – is often the most oppressive place for the Muslim women in India.
 
Women are controlled at every step. If they need to go to school or hospital, they need permission from the male members or they are escorted. The mobile that a young girl carries is always on auto-recording mode so that the family can later monitor and check her movements as well as her friends’ circle.
 
Issues pertaining to security are both perceptual and contextual. With little control over their lives Muslim women largely remain confined to their homes and immediate neighborhood for real or perceived reasons of safety, and feel insecure about their lives, assets and well being.
 
They strongly believe that “Men are the protectors and maintainers of women, because God has given the one more (strength) than the other, and because they support them from their means. Therefore, the righteous women are devoutly obedient, and guard in (the husband’s) absence what God would have them guard.” (Quran, 4:34, translation A. Yusuf Ali).
 
Thus the patriarchal structure of Muslim society is very much acceptable even to the women who don’t live within family structure. “I need someone to take care of me and my children,” says Naseem who is now living with her fifth husband and who is ready to sell her daughter to an aged Arab.
 
The extreme poverty combined with patriarchy has led Muslim girls into the trap of temporary or contract marriages where the nikahnama (marriage deed) and the talaqnama (divorce deed) are signed simultaneously and the girls are married to any foreign national for anywhere between Rs. 15,000 to Rs. 1.5 lakh. A girl from a poor family easily becomes a prey in the hands of the middlemen who act as brokers and give a lot of hope to the family that by marrying the girl to a rich foreigner they can become rich over night.
 
Once the parents are taken into confidence, they present her in front of the Arab Sheikh and she is priced according to her looks and sexual appeal of her body. Once the marriage is settled the middlemen take their 80 per cent share in the mehr paid to the girl; only 20 per cent is paid to the girl’s family.
 
On one of their routine home visits in the old city area staff members from Shaheen found an important lead that exposes a ring of persons involved in the flesh trade in Hyderabad. Beauty parlours in the old city, the staff discovered, are more than just beauty parlours. The public face of the beauty parlour announces beautician courses for young women interested in beginning their careers in the beauty business.
 
Covertly, some of these beauty parlours run a full-fledged business of contract marriage where women are married off to Arab sheikhs in exchange for a handsome amount which the girl’s family earns. A middle aged woman, who runs both sides of the business, is popular among the women in that part of Hyderabad as someone who launches their ‘careers’. It is said that there are many other such “beauty parlours” in the city.
 
Shaheen staff members undertook a sting operation to find out how beauty parlours functioned. Two of them approached the above-mentioned woman. They asked know how to apply for the beautician course, saying that they were making these enquiries for a friend who was interested.
 
On hearing that their “friend” was young and pretty, the middle aged woman enquired about the economic status of the family, stating that she might have an alternate job to their ‘friend’ that would fetch her more money. She said their “friend” could make a decent amount by marrying a man who lived abroad.
 
In the course of the conversation, Shaheen staff learned that her husband whets the girls and picks those who are beautiful and just about 18-years-old. These girls are then sent to Mumbai to one of the many Sheikhs who reside in some 5-star hotel. In Mumbai they are married to the Sheikh with whom they stay for some five days after which the Sheikh takes the girl to his home country: Qatar, Abu Dhabi or Jeddah.
 
“Maan, aapko satravan damad Mubarak!” (Congratulations Mother, you are now a mother-in-law for the 17th time!). That was Rehana, 26, writing to her mother from Doha, Qatar in 2002. Rehana is the eldest in the family with nine other sisters and four brothers. Rehana was married for the first time at the age of 12 to an Arab Sheikh and since then her serial marriages were the main source of income for the family. Her mother had forbidden her from returning to India before all her sisters were married off and her brothers “settled” in life.
 
Recently, in 2015, a 22-year-old girl committed suicide after her seventeenth marriage to an old Arab.
 
Many families in Barkas, Salala, Shaheen Nagar and other localities of the Old City Hyderabad survive on such flesh trade. Misusing the sanctioned provision which allows a Muslim man to have four wives at a time, many old Arabs are not just marrying minors in Hyderabad, but marrying more than one minor in a single sitting.
 
The Arabs prefer teenage, virgin brides. Women's bodies are used for easy economic prosperity. Reshma, a 16-year-old was harassed every day by her mother: “Look at others in the neighborhood, how fast they are becoming well off. We are not able to have two meals a day.” Reshma is one of many such adolescent girls whose parents aspire to live a better life. These families want their daughters to look healthy and beautiful with nice clothes.

As Said Shah put it in one of his articles: “There is a constant promise of glitz from the media: you are worth living only if you have a mobile phone, nice clothes, a new car — the list is endless.” This triggers an increase in the crime rate as many take to violence to fulfill their desires.
 
“No one shall be held in slavery or servitude,” states the Universal Declaration of Human Rights. But the women in the Old City are so vulnerable that they can go to any extent. Women bear a disproportionate burden in the families, and are most commonly trafficked for the sex trade. The girls are always treated as subordinates and given little freedom to make choices.
 
The Muslim woman’s identity has become a major crisis in today’s globalised world. It needs to be recognized in the first place. The lack of this recognition is the root of the problem. This is what makes her an invisible entity that is vulnerable to violence of every imaginable sort.
 
The government should play an active role in giving the Muslim woman an identity through recognition. This can happen only when Muslims as a minority are recognised and given visibility in such a diverse country like India. Owing to the active discrimination that Muslims suffer as a group they need the support of the state more than others.

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