Even though marital rape is not punishable in India, the Kerala High Court ruled that it is a valid ground for seeking a divorce. According to the court, such behavior falls under the category of ‘mental and physical cruelty.’ The bench, which included Justices A. Muhamed Mustaque and Kauser Edappagath, was hearing a petition from a man who was contesting a family court divorce judgment. The family court noted that the respondent-wife had been subjected to harassment and cruelty.
‘Merely for the reason that the law does not recognize marital rape under penal law, it does not inhibit the court from recognizing the same as a form of cruelty to grant the divorce. We, therefore, are of the view that marital rape is a good ground to claim divorce,’ the court said.
Marital rape is currently ‘legal,’ in the sense that, while rape is illegal, an exception to the law states that unwilling sexual intercourse with a wife over the age of 15 is not considered rape. The age limit was raised to 18 in 2017 after a Supreme Court petition, but the offense was not criminalized.
As a result, India continues to be one of only 36 countries in the world where marital rape is not illegal.
Due to the lack of criminalization, no official statistics on the incidence of marital rape can be found in national criminal records. However, according to the government’s National Family Health Survey (NFHS) – 4, marital rape is still one of the most common forms of sexual violence experienced by married women in India.
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