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Kerala High Court: ‘Marital rape is a solid ground for divorce’

Kerala High Court

Ground Report | New Delhi: Kerala High Court on Friday gave an important decision regarding marital rape. The Kerala High Court said that marital rape is a solid ground for seeking a divorce. The court has said this when marital rape is not a legal offense in India and thus no punishment is imposed under the law.

Actually, a husband had challenged the decision of the Family Court in the High Court. The Family Court had allowed divorce on the ground of marital cruelty.

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Kerala High Court

A bench of Justices Mohd Mushtaq and Kausar Edappagath dismissed the husband’s plea challenging the decision of the family court, saying, “… marital rape is the illegal nature of the husband disregarding the autonomy of the wife.” In simple words, the court said that the relationship against the will of the wife is marital rape.

Further, the court said,”While such conduct cannot be punished, it amounts to physical and mental cruelty.” The man is accused of forcing his wife to have unnatural sex and even forcing her to do it in front of his daughter.

However, the husband accused his wife of having an illicit relationship. The court order said the family court had found that the man treated his wife as a “money-making machine”.

According to LiveLaw, the court also found that “marital rape occurs when the husband assumes that his wife’s body is his”, and that such a belief has no place in modern jurisprudence. The court also said that the husband and wife are treated as equal partners in marriage.

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The Kerala High Court further observed that the case reflects the story of a woman’s struggle and said:“Husband’s greed for money and sex had put a woman in trouble. She renounced all her monetary claims to get a divorce. She had to wait for more than a decade (12 years) in the temple of justice for divorce.”

“The law cannot compel the husband or wife to suffer against his will by refusing divorce”, the court said, to deal with marital loss and compensation, the court said, adding that the divorce law should be equipped. Court said, “We need to make a law with the human mind to deal with human problems.”

Court’s emphasis on common code for marriage and divorce

The court also said that it is the need of the hour that marriage and divorce should be brought under common law for all communities.

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“There can be no difficulty in having a common law for all communities, at least for marriage and divorce. Individuals are free to marry according to personal law, but they are freed from the essentials of marriage under secular law. Cannot be liberated. Marriage and divorce should be under secular law; this is the need of the hour. Time has come for a change in marriage law in our country.”

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