The Kerala High Court in XXX v. XXX (names kept confidential) on 30^th July 2021, observed that “Treating a wife’s body as something owing to husband and committing sexual acts against her will is nothing but marital rape.” The Court went on to notice that irrespective of whether the law recognises marital rape as an offence or not, nothing can bar the Court from recognising it as a ground of divorce.

The current appeal is filed by the husband against a judgment of the Family Court allowing a petition for divorce on the ground of cruelty and dismissal of a petition for restitution of conjugal rights. The Appellant was a qualified medical doctor at the time of marriage but never practiced as a doctor afterwards and was engaged in the real estate business and construction, which he failed at. The Respondent allegedly had given 501 gold sovereigns at the time of marriage besides car and flat. The Respondent had filed a case of constant harassment and demand for money as the Respondent’s father even gave Rs.77 lakhs to the Appellant on different occasions. The Respondent also alleged that sexual perversion and physical harassment as a part of the cruelty. Further, the Appellant also doubted the chastity of the Respondent which was denied by the Respondent.

The Family Court found that the Appellant treated his wife as a money-minting machine and that the Respondent had chosen to file a petition for divorce when harassment and cruelty reached a level beyond toleration. The Court even believed the oral testimony of the respondent regarding sexual perversity.

The High Court held that:

1. The ‘cruelty’ reflects the character of a person and hence, the Court undertook social semiotic approach to analyse the conduct in given situation.
2. The Court believed the unshaken cross examination about the sexual conduct of the Appellant.
3. The Court agreed with the lower Court and noted that the acts of the Appellant instilled a fear in the respondent that the continuation of the marital life is only for the purpose of meeting the financial obligations created by the husband elsewhere.
4. The lack of security, affection, or care from the Appellant, coupled with the constant harassment demanding money, constitutes mental cruelty.
5. 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.
6. Right to respect for his or her physical and mental integrity encompass bodily integrity, any disrespect or violation of bodily integrity is a violation of individual autonomy.
7. Irrespective of whether the law recognises marital rape as an offence or not, nothing can bar the Court from recognising it as a ground of divorce.
8. Unsubstantiated allegations of adultery constitute mental cruelty.
9. Therefore, the Court dismissed the appeal.

– Esha Shah, Paralegal – POSHequili

Marital Rape: An Oxymoron or an Evil?