Marital Rape as a valid ground to claim Divorce
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Table of Content:-
- Background of the case
- Issues Raised
- Statutory provisions involved
- Submissions of the Parties
- Judgment analysis
- Conclusion
- Case Laws:-
- Samar Ghosh V. Jaya Ghosh [(2007) 4 SCC 511]
Background of the case
The appellant, i.e. the husband was a qualified medical doctor but he never practices as a medical doctor but he was engaged in the real estate business. On 11th February 1995, the parties tie a wedlock, and out of the said wedlock, two children were born. The respondent at the time of marriage had given 501 gold sovereigns along with a car, and a flat. The appellant’s business was running in loss and therefore he used to harass the respondent and demands money. The respondent’s father gave 77 lakhs rupees to the appellant on various occasions. Despite this appellant- defendant used to force her for sexual intercourse even when she was sick and was advised to have complete bed rest and also on the day when her mother-in-law passed away. The respondent- plaintiff instituted the suit in the family court and the decision of the court is in the favor of the plaintiff the same was challenged by preferring an appeal in the High court by the defendant (now appellant).
Issues Raised
- Whether Marital Rape is punishable in India?
- Can Divorce can be claimed on the ground of marital rape?
Statutory provisions involved
- Section 13 (1) (ia) of the Hindu Marriage Act, 1995
“(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party:-
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty.”
- Section 9 of the Hindu Marriage Act, 1955
“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
Explanation
Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.”
Submissions of the Parties
The contention of the appellant
- It was submitted that the allegations made by the respondent- plaintiff is false and frivolous.
- It was alleged that the respondent is having an extra marital affair with the caretaker of the flat and the driver.
- It was prayed that this court grants him restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955.
The contention of the Respondent
- It was argued that the gold which was given by the respondent to the appellant was misappropriated by the appellant.
- It was also contended that the reason behind the failure of the appellant’s business is the profligate lifestyle of the appellant.
- It was submitted that the respondent is suffering from cruelty by the way of sexual perversion and physical harassment.
- It was argued that a question on the chastity of the respondent by the appellant as it was mentioned in his pleadings that his wife was having an extra marital affair with the caretaker of the house and their driver.
- Respondent seeks a divorce from the appellant.
Judgment Analysis
Both the cases, that is, the appellant case of restitution of conjugal rights and the respondent case for divorce are tried together. Court had allowed the petition of divorce whereas dismissed the petition of the restitution of conjugal rights.
The court found that the appellant’s own father and brother lodge a police complaint against the appellant. These complaints were filed for police protection to them from the appellant. In the complaint, the appellant’s father shouldering the loan created by the appellant and his brother on him. And to discharge the loan the appellant take away all the jewellery which is received at the time of marriage and sold them. To evaluate the conduct of the appellant court has approached the social semiotic approach to analyze the conduct of the appellant. It was found that at the time when the respondent was pregnant, the appellant abuses her.
The court while explaining mental cruelty relied upon the ruling of Samar Ghosh V. Jaya Ghosh [(2007) 4 SCC 511] in which the apex court laid down the parameters to evaluate constituent elements for mental cruelty on the facts and circumstances of the case. The court in the present case held that the appellant never bother about the well being of his wife and children and never shown any love and affection toward them and it is coupled with the constant harassment and demanding money which cause mental pain, agony, and suffering to her and the conduct of the appellant constituted as mental cruelty.
The court answered in respect of marital rape
“In modern social jurisprudence, spouses in marriage are treated as equal partners and husband cannot claim any superior right over wife either with respect to her body or with reference to individual status. Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape.”
“Marital privacy is intimately and intrinsically connected to individual autonomy and any intrusion, physically or otherwise into such space would diminish privacy. This essentially would constitute cruelty.”
“We also need not disbelieve the respondent’s version that the appellant often forced her to have unnatural sex. 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. Marital rape is alien to our penal jurisprudence.”
“Right to respect for his or her physical and mental integrity encompass bodily integrity, any disrespect or violation of bodily integrity is a violation of individual autonomy. Autonomy essentially refers to a state of feeling or condition one believes to possess having control over it.”
Conclusion
The court held that merely due to the reason the law doesn’t recognize marital rape under penal laws doesn’t stop the court to recognize it as a form of cruelty and therefore, marital rape is a good ground to claim the divorce.
In the present case, the insatiable urge for wealth and sex of the appellant forces the respondent to go for a divorce. The Division Bench of the High court upheld the findings of the single judge bench and dismissed the present appeal.