Treating wife’s body as something owing to the husband and committing sexual act against her will is marital rape, the Kerala High Court has said.
The observation came while the court dismissed two appeals filed by a man challenging the decision of a family court granting divorce.
A bench of the High Court, comprising Justice A Muhamed Mustaque and Justice Kauser Edappagath, said marriage and divorce must be under the secular law and time has come to recast the marriage law of the country.
“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 a good ground to claim divorce,” the bench said.
The court dismissed the appeals filed by the husband against the judgment of a family court allowing a petition for divorce on the ground of cruelty and dismissing another petition by the husband seeking conjugal rights.
“Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape. 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,” the court said in its order on July 30.
In modern social jurisprudence, the court said, spouses in marriage are treated as equal partners and husband cannot claim any superior right over wife either with respect to her body or with reference to individual status.
“In this case, the insatiable urge of the husband for wealth and sex forced the respondent to seek divorce. The appellant’s licentious and profligate conduct cannot be considered as part of normal conjugal life. Therefore, we have no difficulty in holding that insatiable urge of a spouse for wealth and sex will also amount to cruelty,” the court said.