Marital Rape is a Ground to Claim Divorce

Marital rape is a ground for divorce

Marital rape is not an offence in India but it is a good ground to claim divorce, the High Court of Kerala (HC) says.

This was stated by the HC in its verdict  in xxx v xxx (names masked) on 30th July 2021 while disposing a set of two appeals against a family court verdict. One appeal was by the husband seeking restitution of conjugal rights and the other was by the wife for divorce. The HC upheld the divorce.

What is marital rape?

Marital rape or spousal rape is the act of sexual intercourse with one’s spouse without the spouse’s consent. The lack of consent is the essential element and need not involve physical violence. Marital rape is considered a form of domestic violence and sexual abuse.

Husband is under a distorted notion

The HC says that husband’s licentious disposition disregarding the autonomy of the wife is a marital rape. It falls within the frame of physical and mental cruelty, even though it is not a criminal offence.

The court adds, “In a married life, sex is reflection of the intimacy of the spouse. The evidence given by the woman establishes that she was subjected to all sorts of perversion against her will. Marital rape occurs when the husband is under notion that body of his wife owes to him.”

Urge for wealth and sex lead to divorce

The family court in its judgement pointed out that the appellant saw his wife as a money-minting machine. The husband used to force the wife to bring money from her family when he was in financial troubles and harassed her physically and mentally for the same. The husband is stated to have forcefully had sex with her when she was sick many times, on the day when her mother had passed away, and in front of their daughter who is a minor.

The HC upheld the verdict and stated that the insatiable urge for wealth and sex of the husband had forced the wife to take a decision for divorce and upheld that insatiable urge for wealth and sex of a spouse would also amount to cruelty.

Spouses in marriage are equal partners

The judgement states that in modern social jurisprudence, spouses in marriage are treated as equal partners and husband cannot claim any superior right over wife either with reference to individual status.

The court added that the law cannot force a spouse to suffer against his/her wish and deny her divorce if she uses marital rape as a ground for divorce.

Verma Report wanted to criminalise marital rape

The Verma Committee, set up after the Nirbhaya case in 2013, recommended that in sexual assault including rape the relationship between the victim and the offender is immaterial but the presence of the consent should get the focus.

The committee recommended that a marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation. The relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity. The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.

The recommendation was not accepted and acted upon. Still marital rape has not been included in our penal statute.

Review Panel recommended against criminalisation

The panel which was set up to review the Verma Committee Recommendations suggested that criminalising marital rape would put the entire family under stress. It may potentially destroy the institution of marriage.

On the other hand, even though the act of marital rape itself has the potential to destroy the institution of marriage.

Assumed consent exists

The present-day assumption is that once the couple is legally married based on mutual consent, the wife is assumed to have given her consent for sexual intercourse to her husband so long as the marriage might last.

Additional reading

  1. Kerala High Court Judgement in xxx v xxx decided on 30th July 2021