2021 Kerala HC remarks on marital rape that set a precedent

“Marital rape is solid grounds for divorce. A woman’s body is not a possession of her husband. The husband does not have special or additional privileges and rights in a conjugal relationship — the two partners are equal. A woman need not suffer only for the reason that she is in a legal tie. A woman is forced to give up all monetary claims to get a divorce from a cruel husband because of the delay in the delivery of justice. The judiciary is accountable for her tears.”

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These statements were made by the High Court of Kerala in a landmark judgment pronounced on August 6, 2021. The court, while deciding a case of divorce on the basis of cruelty to the wife, made the observations, which are going to be pivotal in the fight for justice for women, going forward.

The marriage in question

The landmark decision was given on a petition filed by the husband for the restitution of conjugal rights against the demand for divorce by the wife. The husband is a qualified medical practitioner who had received 501 sovereigns of gold, a car and an apartment from the father of the bride at the time of marriage. He did not practise medicine but dabbled in real estate business and incurred huge losses.

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The husband started forcing his wife to fetch more money from her family, and harassed her physically and mentally for the same. According to the statement given in the family court by the wife, he used to force her for sexual intercourse and ‘unnatural sex’ against her will. Further, he accused her of having an illicit relationship with a caretaker and driver, which amounts to cruelty, according to the High Court. Pending a petition for divorce filed by the wife, the husband filed a petition for the restitution of conjugal rights.

The court’s ruling was something gender right activists have been seeking for a long time — to make marital rape a punishable offence.

“The respondent has deposed that even during her pregnancy, the appellant abused her,” said the court. “She also deposed that the appellant committed forceful sex when she was sick and bedridden. She also deposed that she was subjected to the worst form of sexual perversion and unnatural sex against her will. The respondent deposed that the appellant did not spare her for sex even on the day the appellant’s mother expired. She also stated that the appellant forced her to have sex in front of their daughter.”

Form of cruelty

A husband’s licentious disposition disregarding the autonomy of the wife is marital rape, said the court. Though such conduct cannot be penalised, it falls in the frame of physical and mental cruelty, it added. “Marital rape is alien to our penal jurisprudence. ‘Marital rape’ is defined in Black’s Law Dictionary 8th Edition as ‘a husband’s sexual intercourse with his wife by force or without her consent’. Marital rape occurs when the husband is under the notion that the body of his wife is owed to him,” it said.

“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 divorce. We, therefore, are of the view that marital rape is good grounds to claim divorce.”

Long legal conflict

Marital rape has been a point of judicial debate for quite a while. There are several instances in which the courts took the view that the sexual intercourse between husband and wife — no matter how brutal the former is — cannot be considered rape.

In March 2021, the Supreme Court stayed the arrest of a husband who was accused of brutal and forced sexual intercourse with his wife. The Chief Justice expressed apprehension about calling it rape, whatever be the degree of cruelty. The court asked the counsel appearing for the woman to file a case for assault and marital cruelty and not for rape. Despite the medical evidence for injuries produced, the Supreme Court granted bail to the accused.

In 2019, the Supreme Court refused to intervene in a plea to make marital rape grounds for divorce. A bench headed by the Chief Justice asked the petitioner-advocate to approach the Delhi High Court, which was handling a similar petition. However, the Delhi High Court, in July 2019, dismissed the public interest litigation that pleaded to make marital rape grounds for divorce. The Delhi High Court held that it was a matter to be decided by the legislature and no judicial intervention was possible.

Legislature’s inaction

However, the legislature is yet to pay heed to consistent demands made by various gender right activists to bring marital rape under the purview of penal law. A Bill introduced by Thiruvananthapuram MP Shashi Tharoor in 2019 is the only pro-active step taken by the legislature so far.

However, his Women’s Sexual Reproductive and Menstrual Rights Bill, 2018, which was introduced as a private member’s Bill, has never taken off, like many others in the same category. The Bill seeks to take away the exception given to men under Section 375 of the IPC (Rape) in sexual relationship with wives.