Kerala High Court observes marital rape can be valid ground for divorce

Kochi (Kerala) [India], August 6 : The Kerala High Court on Friday observed that marital rape can be a ground to claim divorce, a judgment that could have a significant impact on divorce cases.
The court observed this while dismissing an appeal of a man who had challenged a Family Court order that allowed a plea of his wife for divorce on the ground of cruelty.
The bench of Justice A Muhamed Mustaque and Justice Kauser Edappagath stated, "In this case, the insatiable urge for wealth and sex of the husband had forced the wife to take a decision for divorce. His licentious and profligate conduct cannot be considered as part of normal conjugal life. Therefore, we have no difficulty in holding that insatiable urge for wealth and sex of a spouse would also amount to cruelty. The right to respect for his or her physical and mental integrity encompasses bodily integrity, any disrespect or violation of bodily integrity is a violation of individual autonomy."
"Autonomy essentially refers to a state of feeling or condition one believes to possess having control over it," the Court explained.
It further said, "In matrimony, the spouse possesses such privacy as an invaluable right inherent in him or her as an individual. Therefore, marital privacy is intimately and intrinsically connected to individual autonomy and any intrusion, physically or otherwise into such space would diminish privacy. This essentially would 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 a divorce."
Court described that case as a "struggle of a woman" within the "clutches of law" and said that the woman was driven to distress.
"This case depicts a story of the struggle of a woman within the clutches of law to give primacy of choice not to suffer in the bondage of legal tie. An insatiable urge for wealth and sex of a husband had driven a woman to distress. In desperation for obtaining 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," the bench said while hearing the case today.
The Court 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. Pompous and hedonistic lifestyle and culture brought marked changes to our outlook. The same is also reflected in the concept of marriage."
While hearing the plea, Court further noted that the concept of family as a "social unit" is gradually "withering away."
The Bench of two Justices said, "If marriage is seen as a symbol to project status, without reflecting the values the individuals or society would cherish to profess, we may miss the basic concept required for marriage. The concept of family as a social unit is also slowly withering away to recognise the concept of bond created by the individuals. The individuals who were reluctant to separate, fearing social fear, and on the ideal of the sacrament of marriage, have no fear now to approach the court for divorce to establish the free act of will. Matrimonial relationship is all about contentment. When there is harmony at home, that leads to contentment in marriage. The harmony is evolved through mutual respect and trust. The debt of the husband sparked the dispute between him and the wife."
"Sex in married life is a reflection of the intimacy of the spouse. In this case, she was subjected to all sorts of sexual perversions against her will. A spouse in a marriage has a choice not to suffer, which is fundamental to the autonomy guaranteed under natural law and the Constitution. Law cannot compel a spouse to suffer against his or her wish by denial of divorce," the Court said.