Insatiable urge for wealth & sex of spouse is sufficient ground for divorce: Kerala HC rules on marital rape

Read Judgement: XXX v. XXX Mat. Appeal Nos. 151/2015 and 179/2015 

LE Staff

Kochi, August 7, 2021: The Kerala High Court has held that “insatiable urge” for the wealth and sex of a spouse would amount to cruelty and hence forms ground for divorce. 

“Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape,” observed a Division Bench of Justice A. Muhamed Mustaque and Justice Kauser Edappagath. 

“Right to respect for his or her physical & mental integrity encompass bodily integrity, any disrespect or violation of bodily integrity is a violation of individual autonomy,” added the Bench. 

The High Court held that merely for the reason that the law does not recognize marital rape under penal law, it does not inhibit the court from recognizing the same as form of cruelty to grant divorce. 

The Court was hearing an appeal filed by the husband challenging a judgment of a family court granting divorce on the ground of cruelty and dismissal of a petition for restitution of conjugal rights.

The appellant-husband had married the respondent-wife and children were born out of the wedlock. The appellant is a qualified medical doctor but engaged in real estate business and construction which was not successful owing to his wayward life, noted the HC. He constantly sought financial assistance from the respondent’s father, an affluent businessman, and physically and mentally abused the respondent wife. On this ground a petition for divorce was filed on grounds of constant harassment and demand for money.

As per the verdict of the family court, the appellant was treating the respondent as a money-minting machine and the respondent was tolerating the harassment for the sake of marriage. It was noted that the appellant’s own father had made complaints against him on grounds of financial harassment, in order to seek police protection.

Pertinently, the High Court placed strong reliance on the testimony of the wife given in trial regarding the sexual conduct of the husband.

The Division Bench noted that the respondent had 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 even did not spare her for sex even on the day the appellant’s mother expired. 

“There cannot be any difficulty in having a common code of law to all communities, at least for marriage and divorce on the above line. 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,” observed the Bench.  

The High Court also said, “Dissolubility of marriage may bring myriad losses to a spouse on such separation. While law allowing an individual to act on his or her choice, the law cannot ignore loss of such spouse who suffered in the matrimony or in separation”. 

It, therefore, dismissed the appeal and upheld the divorce granted by the family court.