Date of Judgement:
30TH July 2021
Judges:
Justice A. Muhamad Mustaque & Justice Kauser Edappagath
Parties:
Appellant – XXX by (Party in Person)
Respondent – XXX by Adv. Sri Millu Dandapani
Subject
Treating a wife’s body as something owned by the husband and committing sexual acts against her will is nothing but “Marital Rape” said by a Divisional Bench of the Hon’ble Kerala High Court comprising of Justice A. Muhamed Mustaque & Justice Kauser Edappagath.
Issues
- Whether marital rape is a ground under which divorce can be filed?
- Can marital rape be penalized?
Overview
- The marriage took place in 1995.
- By the time of marriage, the groom (husband) was a certified medical doctor. However, he never got into medical practice.
- Woman’s father was and is still into real estate businesses, a field which was soon followed up by the husband, though the plan didn’t turn out to work as expected.
- The marriage was arranged, during which various articles and objects were provided to the groom, including a car, a flat and 501 gold sovereigns.
- The couple consists of two children.
- The husband tried numerous sorts of harassment against his wife.
- The report also suggests that the husband used to torture his wife for money, due to which he received an extensive amount of ₹77 lakhs (in total) from his father-in-law on multiple occasions.
- The husband used to compel his wife for sexual intercourse without her consent, as a matter of fact she was pressurized for sexual intercourse even at moments when it should have been avoided which includes times when she was medically unwell (sick and even bedridden).
- Supporting her statement, the wife has alleged that she was compelled for sexual intercourse even on the day when her mother-in-law passed away (husband’s mother).
- During the matter, the Hon’ble Kerala High Court was entertaining an appeal made by the husband challenging a decision made by the Family Court regarding granting of divorce based upon the grounds of cruelty, along with dismissing the petition for restitution of conjugal rights.
Relevant Provisions
Section 13 of HMA: Cruelty, which is a ground for dissolution of marriage, may be defined as the wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society, to which the parties belong, their social values, status, environment in which they live. Cruelty need not be physical. If, from the conduct of the spouse, it is established or an inference can be legitimately drawn that the treatment of the spouse is such that it causes apprehension in the mind of the other spouse, about his or her mental welfare, then this conduct amounts to cruelty.
Judgement Analysis
- Salacious temperament of a husband to ignore the rights of his wife’s is a marital rape, although such behaviour cannot be penalized. It falls under the frames of physical and mental savagery.
- As per the modern concept of social jurisprudence, spouses in a marriage are considered to be equivalent to each other in respect to physical and individual status. Therefore no husband is allowed to consider himself as dominant over his partner either physically or mentally.
- Moreover showcasing rights over the body of the spouse without his/her consent is treated as marital rape.
- The right to respect towards the body of the spouse or his/her mental or physical integrity surrounds the bodily integrity, and any disrespectful behavior towards the same violates an individual’s status.
- Autonomy refers to a state or condition in which a person tends to believe that he/she possesses control over it.
- In the matter of matrimony, the spouse possesses such privacy as an invaluable right as an individual bound together by the relationship status.
- Henceforth any intrusion in the privacy of one by the other is viewed as violation to such privacy.
- Merely for the reason that the law does not recognise marital rape under penal law, it does not inhibit the court from recognizing the same as a form of cruelty to grant divorce.
- In today’s social structure, both the parties to a marriage i.e. the husband as well as the wife are treated equally, and therefore the husband shouldn’t claim to be any superiority over his wife as if he owns his wife’s body
Conclusion
The Court basically passed over some remarks while dismissing the appeals that were made by the husband in regard to his move towards the High Court, with an intention of countering the conclusion that was made by the Family Court, where the proceeding had been befalling for over a decade. Moreover, the Court held that - “An insatiable urge for wealth and sex of a husband had driven a woman to distress. In desperation for obtaining a divorce, she had forsaken and abandoned all her monetary claims. Her cry for divorce has been prolonged in the temple of justice for more than a decade”. Divorce was allowed on the basis of cruelty, by the Family Court.
The Kerala High Court upheld that in the issue of marital rape, though it is not penalized in India, it is a strong ground to claim divorce. A Division Bench of Justice A. Muhamed Mustaque and Justice Kauser Edappagath made several significant observations while granting divorce to the wife. The unsubstantiated imputation of the illicit relationship of the respondent with the caretaker and driver, apart from the constant torture for money also qualify as cruelty. Therefore, it was held that the findings of facts in the matter clearly establish a ground for cruelty warranting divorce. Therefore, the Division Bench upheld the decision of the Single Judge and dismissed the appeals.
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