Voices on Law

Recently in a landmark judgement, a division bench of the Kerala High Court stated that marital rape is a ground for Divorce. While there is a provision in the Indian Penal Code (IPC), punishing “Sexual Intercourse by husband upon his wife during separation”, there is no provision for marital rape. The exception 2 of the Section 375 (which defines rape) of the IPC states that sexual intercourse or sexual acts by a man to his wife is not rape given the wife is not under 15 (now 18 [ 1 ] ) years of age is rape. Although all of the marriage laws in India recognize cruelty as a ground of divorce in India, it is only now that marital rape too has been recognized as a ground for the same. While marital rape is lawfully recognized as an offence in most of the nations, Indian laws remains obsolete. There have been several discussions regarding the recognition of Marital rape in India, a written reply by Minister of State for Home Affairs, Shri Haribhai Parathibhai Chaudhary to another Rajya ...

  (Editor’s note: Trigger Warning for Paragraph 3: Mention of Rape) On July 30, 2021, a two-judge bench of the Kerala High Court delivered an exemplary judgment [ 1 ] recognising marital rape as a valid ground for divorce. The judgment was perceived to be significant for acknowledging the autonomy and agency of a woman in marriage. The court said, “a husband's licentious disposition disregarding the autonomy of the wife is a marital rape, albeit such conduct cannot be penalised, it falls in the frame of physical and mental cruelty.” It also opined that the law needs to be evolved in a manner where human problems are dealt with humanely. The court was hearing an appeal petition for divorce on the ground of cruelty and dismissal of a petition for restitution of conjugal rights. The couple had an arranged marriage in 1995 and have two children. The husband is a qualified doctor but never practised, rather engaged in real estate business and construction. The family court had ruled...