“Her friends used to tell her it wasn’t rape if the man was your husband.
She didn’t say anything, but inside she seethed; She wanted to take a knife to their faces.” — F.H. Batacan
INTRODUCTION
In India, domestic violence is one of the biggest and emerging problems. As per the report of NCRB 2019, about 70% women are sufferers of domestic violence. Basically, Domestic Violence means any act that hurts a woman either physically or mentally by her husband. Domestic violence is in the form of dowry, marital rape, etc.
In this article, we will analyse the marital rape and its legal provisions. What is marital rape? Marital rape is the forcing of your spouse into sex without any proper assent. It is the general way to lower and disempower women. There are 36 countries where marital rape is still not criminalized. India is one of them. There are about 100 countries where marital rape has been prosecuted.
In India, reports show that in every 16 minutes women are raped. The report of National Family Health Survey (NFHS) 2015-16 data directs that an expected 99.1 per cent of sexual violence cases go unreported and approx. woman of India is facing sexual violence from her husband and in-laws than others. It means that if there is no domestic violence by a spouse then women are safe.
As per the latest survey of National Family Health 2019-20, women in India of age between 15 and 49 years experienced 31.1% violence by her husband and 4% by violence during pregnancy. According to the report of National Crime Records Bureau (NCRB), violence against women is top in the list. In 2019, there was an increase in crime against women by 7.3% as compared to 2018. About 4, 05, 861 cases registered against women crime in India. The major causes are the cases of cruelty by husbands or by relatives. The data reveals the domestic violence increasing day by day. It means that Covid also increases the number of crimes against women either by a husband or by others.
MARITAL RAPE STATUS IN INDIA
SECTION 375 IPC – This section dealt with the definition of rape. It states that rape is an all kinds of physical attack also including non-consensual intercourse with a woman.
EXCEPTION 2 OF SECTION 375 – It states that in India marital rape is not criminalized. It excluded unwilling intercourse between husband and wife above the age of 15 years.
In current law after the marriage, a wife is assumed to deliver continuous assent to have sex with her spouse.
OBSERVATION OF KERALA HIGH COURT
The Kerala High Court in its recent judgment by dismissing the two appeals filed by husband in family court held that marital rape not criminalized in India is a valid ground for the divorce between husband and wife.
As per the report, High Court of Kerala said that “a husband’s licentious disposition disregarding the autonomy of the wife is marital rape, albeit such conduct cannot be penalised, it falls in the frame of physical and mentally cruelty”.
It means that the Husband shameless nature lowers the wife’s dignity that is marital rape though it cannot be punished; it falls under physical and mental cruelty.
The Division bench including Justices A. Muhamed Mustaque and Kauser Edappagath. The Court further observed that marital rape cannot be punished under the penal code; it also does not prevent the court form identifying the same as cruelty to grant a divorce. The Court is in the view that marital rape is a good ground to claim divorce.
The court dismissed the pleas by the husband who reached the high court against the decision of the family court.
“An insatiable urge for wealth and sex of a husband had driven a woman to distress. In desperation for obtaining a divorce, she had forsaken and abandoned all her monetary claims. Her cry for divorce has been prolonged in the temple of justice for more than a decade,” the court observed.
FACTS OF THE CASE
The following appeals was challenged by the husband in Family Court seeking to allow a petition for divorce and rejection of petition filed by the appellant. The Family Court added that the husband treated his wife as a machine of money- minting. She decided to get divorced due to a higher level of cruelty and harassment by her husband that goes beyond acceptance.
According to the respondent statement, the husband of the victim was a doctor at the time of their wedding. After some time he changed his business to real estate but did not go well as such. So, he harassed his wife and demanded money. It was also added by the wife’s father that he had given about 77 lakhs rupees on various occasions but his demands increase day by day. The wife in cross-examination stated that he physically harassed and forcefully sex when she was not well and incapacitated. On the same day of the incident, his mother was expired. The Wife also added in her statement that in front of their daughter, the husband forcefully engages in sexual intercourse with her.
The respondent further added that her husband having an illegal relationship with the apartment caretaker.
The Division Bench upheld single bench judgment and dismissed the appeals.