Kerala High Court held in one case that Marital Rape Is A Valid Ground For Divorce. Let us see what was the matter and what the court actually held and why the court said that Marital rape is a valid ground for divorce.
Marital Rape – An Exception to Rape: Marital Rape is the sexual intercourse between the husband and the wife without the consent of the wife. It is recognized as an exception in the definition of rape as incorporated under Section 375 of IPC.
Independent Thought v UOI 2017: The provision is unconstitutional in so far it relates to girls between ages 15 to 18. Now Exception 2 has to be read as ‘ Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age is not rape ‘
However, on two occasions, a husband can be convicted for the offence of rape, and such occasions are :
However, on two occasions, a husband can be convicted for the offence of rape, and such occasions are:
i ) If a husband commits intercourse with her own wife, who is living separately from him, it is rape ; ( Section 376B )
ii ) If a husband commits intercourse with his own wife, who is under the age of 18 years, it becomes rape.
This, however, is subject to section 198 ( 6 ) of the CrPC, 1973 according to which no court shall take cognizance of an offence under section 376 of the IPC where such offence consists of sexual intercourse by a man with his own wife, the wife being under 18 years of age if more than one year has elapsed from the date of the commission of the offence.
Kerala High Court held that Marital Rape is A Valid Ground For Divorce
The Kerala High Court in a significant judgment upheld that marital rape, although not penalised in India, is a good ground to claim divorce while dismissing a set of two appeals filed by a husband challenging the decision of the Family Court.
While marital rape is not a criminal offence under Indian law, it amounts to cruelty and can, therefore, entitle a wife to divorce, a Division Bench of Justices A Muhamed Mustaque and Kauser Edappagath held A Division Bench of Justice A.
Muhamed Mustaque and Justice Kauser Edappagath made several significant observations while granting divorce to the wife The Court held that in modern social jurisprudence, spouses in a marriage are treated equally and the husband cannot claim supremacy over the wife on her body or individual status.
” A husband’s licentious disposition disregarding the autonomy of the wife is marital rape, albeit such conduct cannot be penalised, it falls in the frame of physical and mental cruelty … 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 the divorce. We, therefore, are of the view that marital rape is a good ground to claim divorce, ” the Court ruled. “
Treating wife’s body as something owing to husband and committing the sexual act against her will is nothing but marital rape, ” the Bench added. It, therefore, dismissed the appeal and upheld the divorce granted by the family court.
