Just because marital rape is not recognised as a crime under criminal law does not prevent the court from recognising it as a form of cruelty and granting a divorce: Kerala High Court

Just because marital rape is not recognised as a crime under criminal law does not prevent the court from recognising it as a form of cruelty and granting a divorce is upheld by the Kerala High Court in the case of X v. X (Mat. Appeal No. 151 of 2015) through a Division Bench comprising of A. Muhamed Mustaque and Kauser Edappagath, JJ


The current appeal resulted from a common judgement that denied a request for recovery of marital rights and granted a divorce petition based on cruelty. The couple had two children together through an arranged marriage.

The appellant-husband had stated that he was a licenced physician at the time of marriage, but he never worked as a physician instead choosing to work in construction and real estate. The appellant never found success in the real estate industry, therefore it was not an easy ride. The respondent-wife claimed that the continual teasing and demands for money were cruel, despite the fact that she had been given 501 gold sovereigns at the time of marriage in addition to a car and apartment.

The respondent said that the appellant misappropriated all of the gold jewellery in addition to the 77 lakh rupees that the respondent’s father donated to the appellant on several occasions. While the appellant accused the respondent of having an extramarital relationship, the respondent also claimed that he had engaged in sexual perversion and physical harassment. Previously, the petition for divorce submitted by the respondent was approved by the Family Court, and the appellant’s plea for restitution of conjugal rights was denied.


The Kerala High Court stated that “cruelty” reflects a person’s character after taking note of the appellant’s own father’s complaints to the police that he had been pressuring him to give more money, mistreating his wife and her family, and even threatening his sister and her two children with danger to their lives on a daily basis over the phone. Therefore, in order to analyse the behaviour in a particular context, the Court must use a social semiotic approach.

The Court expressed the opinion that the demand for money needed to be considered in light of the fact that the appellant never wanted to show the respondent or his children love and care, and that the respondent never experienced any security, affection, or care from the side of the appellant during their marriage. This, together with the ongoing harassment demanding money, had left her in great mental anguish and suffering.

The Court, therefore, upheld the divorce decree issued by the Family Court because sex in a marriage is a reflection of the intimacy of the spouses and the respondent’s testimony amply demonstrated that she was subjected to various sexual perversions against her will. According to the Court, the autonomy protected by natural law and the Constitution begins with the ability of each spouse in a marriage to choose whether or not to suffer. A spouse cannot be forced by the law to suffer against their will if the court denies their request for divorce.

The Court expressed concern on the plight of the women trapped in such marriage ties and said that this tells the grim story of a lady who, in a battle with fate, loses a significant portion of her life. We worry about the validity of the current divorce statute on enumerated grounds in light of how marriage has transformed in society, moving from the social philosophy to the individual philosophy.

The Court expressed its opinion that legal forum established to determine a relationship’s fate must be accorded with the authority to allow the parties to choose the best course of action for managing their own affairs independently, rather than by seizing control on a fictitious basis. The Court also said that our legal system ought to be prepared to handle marital harm and reparation. We require a law that addresses human issues and can react with compassion.

Accordingly, the Court concluded that just because marital rape is not recognised as a crime under criminal law does not prevent the court from recognising it as a form of cruelty and granting a divorce. Concerned about the customary practise of arranged marriage in our nation, the Court noted that women have little options because they must merely heed the advice of their parents or other elders.

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