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Marital rape a ground for divorce, says Kerala HC

Thiruvananthapuram: In a recent judgment, the Kerala High Court ruled that marital rape is an acceptable ground for divorce. According to the court’s order: ‘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. Marital rape is alien to our penal jurisprudence.’

In its order, the court said that treating a wife’s body as an object as per the will of her husband and committing a sexual act against her will is nothing but marital rape. ‘The right to respect 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 order further stated: ‘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.’

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This significant judgment was made by the division bench of justice A Muhammad Mushtaq and justice Kauser Edappagath regarding an appeal against a divorce order. The order reads, ‘The case in hand depicts a story of the struggle of a woman within the clutches of law to give the primacy of choice ‘not to suffer’ in the bondage of a legal tie. An insatiable urge for wealth and sex of a husband had driven a woman to distress. In desperation to obtain a divorce, she has forsaken and abandoned all her monetary claims. Her cry for divorce has been prolonged in the temple of justice for more than a decade (12 years).’

The order added: ‘She still awaits a 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. 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. We shall advert to this enigma while concluding this judgment.’

According to the family court, the husband was using his wife as a money-minting machine. As well, the court found that the victim tolerated harassment for the sake of marriage, and had filed a petition for divorce when harassment and cruelty went beyond tolerable levels.


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