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Marital rape a good ground to claim divorce, says Kerala HC

Rejecting the appeal of a husband against divorce, a division bench of the Kerala High Court said that treating a wife’s body as something that is owed to the husband and committing sexual acts against her will is nothing but marital rape.

Written by Shaju Philip | Thiruvananthapuram |
Updated: August 7, 2021 12:41:20 pm
The court also observed that the need of the hour is that marriage and divorce must come under secular law.

Marital rape is a good ground to claim divorce, the Kerala High Court has said, adding that the law not recognising marital rape under penal law does not inhibit the court from recognising the same as a form of cruelty to grant divorce.

Rejecting the appeal of a husband against divorce, a division bench of the Kerala High Court said that treating a wife’s body as something that is owed to the husband and committing sexual acts against her will is nothing but marital rape. “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,” said the bench in its order dated July 30, a copy of which was uploaded on Friday.

The court also observed that the need of the hour is that marriage and divorce must come under secular law. A bench of Justices A Muhamed Mustaque and Dr Kauser Edappagath said there cannot be any difficulty in having a common code of law for all communities at least for marriage and divorce.

“Individuals are free to perform their marriage in accordance with personal law, but they cannot be absolved from compulsory solemnization of the marriage under secular law. Time has come to revamp the marriage law in our country. Our law also should equip to deal with marital damages and compensation. We need to have a law dealing with human problems with a humane mind to respond,” said the court.

The court was considering the appeal of the husband, a doctor, against the verdict of a family court allowing a petition for divorce on the ground of cruelty and dismissal of a petition for restitution of conjugal rights.

Going into the details of the case, the court said an insatiable urge for wealth and sex of a husband had driven a woman to distress. In desperation to get a divorce, she has abandoned all her monetary claims.

Referring to the appeal, the court said the husband’s urge for wealth and sex forced the wife, who was arraigned as the respondent, to opt for divorce. The insatiable urge for wealth and sex of a spouse would also amount to cruelty.

A spouse has a choice not to suffer and law cannot compel a spouse to suffer against his or her wish by denial of divorce by the court.

The verdict said the framework of divorce law must be with an objective to help individuals take a decision on their own affairs. This framework must promote a platform at different levels to enable individuals to exercise free choice.

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