Marital rape a valid ground to claim divorce : High Court of Kerala

The Division Bench of High Court of Kerala, through learned judges, Justice Muhamed Mustaque & Justice Kauser Edappagath, while hearing MAT. APPEAL NO. 151 OF 2015 acknowledged that though marital rape is not criminalized in India, it does not prevent the courts from recognizing it as a form of cruelty for granting divorce

BRIEF FACTS OF THE CASE: The appellant, in this case, the husband, challenged a dismissal of a petition for restitution of conjugal rights and the judgement of the family court granting divorce on the ground of cruelty. The appellant and the respondent had an arranged marriage, and children were born out of the wedlock. The appellant, a qualified medical doctor, had other real estate and construction businesses that he catered to. Due to financial loss in business, the appellant made it a habit to borrow money from the respondent’s father (father-in-law) and harass the respondent physically and mentally. The respondent claimed sexual perversion and physical harassment as part of the cruelty inflicted upon her. She filed a petition for divorce when harassment and cruelty reached a level beyond toleration. 

FINDINGS OF THE COURT: The court relied on the cross-examination about the sexual conduct of the appellant. Further, the evidence produced by the respondent, established that she was subjected to all sorts of sexual perversions against her will. Taking all the contentions raised against the appellant, the court remarked, “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 a form of cruelty to grant divorce. We, therefore, are of the view that marital rape is a good ground to claim divorce”. The court dismissed the petitions by holding that the insatiable urge for wealth and sex of the appellant, in this case, did amount to cruelty as a valid ground for divorce.


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