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Kerala High Court: Marital Rape A Ground for Divorce

Kerala High Court

Marital rape amounts to cruelty and is a ground for divorce — a two-judge bench of the Kerala High Court has passed a landmark order acknowledging a woman’s autonomous and individual rights in a marriage. The bench of Justices A Muhamed Mustaque and Kauser Edappagath delivered the order on July 30 while hearing a woman’s petition seeking a divorce from her husband on grounds of harassment and cruelty.


In India, the legal framework does not acknowledge the concept of marital rape, which pertains to coerced sexual activity within a marital relationship. While the Indian Penal Code addresses and penalizes rape, it falls short of recognizing instances of non-consensual intercourse within marriage.

Nonetheless, in the 2017 case of Independent Thought v. Union of India, the Supreme Court of India took a significant step by partially addressing marital rape. The court ruled that forceful sexual intercourse with a wife between the ages of 15 and 18 would be considered rape. However, the court did not extend this recognition to instances of forceful intercourse within marriage once the wife reaches the age of 18.

Notably, marital law does not provide grounds for seeking dissolution of a marriage due to marital rape. At present, both civil and criminal laws in India do not acknowledge marital rape as an offense. To address this issue, the Kerala High Court emerged as a pioneer, introducing a revolutionary approach that has the potential to alter the existing state of affairs.


Justice A.Muhamed Mustaque and Dr. Justice Kauser Edappagath


  • Whether the divorce granted by the Family Court valid?
  • Whether marital rape falls within the ambit of cruelty as ground for divorce?


The Hon’ble High Court upheld the divorce granted by Family Court and also held that woman are not the property of man and therefore cannot be subjected to such intolerant level of cruelty. It held that marital rape is a valid ground for divorce though not recognised by the statues.


The present case is an appeal against the order of Family Court of divorce on the grounds of cruelty. The Family Court observed that appellant i.e. husband has treated her wife with cruelty beyond toleration and hence granted divorce in favour of wife. The husband i.e. the appellant was a practising doctor at the time of marriage but later he shifted to real-estate business. The wife i.e. the respondent has alleged that she has been subjected cruelty and harassment in respect of demand of money. She also said that her father had given approximately 77 lakhs to her husband on various occasion.

Furthermore, she has also alleged that she has been subjected to the worst form of sexual perversion and physical harassment. She deposed that she had been subjected to unnatural sex many times and also he committed forced sex when she was sick, bedridden and even on the day when his mother passed away. She further alleged that he had committed forceful sex on her in front of their daughter and also accused her of having illicit relationship with the caretaker of the house and driver.

Hence the appellant filed the appeal against the divorce decree granted by the Family Court.


The Court in the present case laid down marital rape as a ground for divorce and hence conferred the status of legal recognition to the same. It said that Sex in married life is the reflection of the intimacy of the spouse. Marital rape occurs when the husband is under the notion that the body of his wife owes to him.” The court herein suggested that women are not the property of men after marriage, the marriage doesn’t take away women’s right to have consensual sex. The marital relationships do not justify the non-consensual sex; their sexual sanctity cannot be taken away in any case. Furthermore, in a marriage both the partners are at equal level and husband cannot claim any superior right over woman in respect to her body or individual status. The court emphasised that Treating a wife’s body as something owing to husband and committing sexual acts against her will is nothing but marital rape.” In marriages also spouse have intrinsic right to privacy which every human being possesses. This right to privacy cannot be violated by any person, not even by husband by virtue of the marriage. The court in the present case has held that husband has subjected the wife to inhumane sexual intercourse which has been sufficiently established and hence this amounts to marital rape. The court said that Merely for the reason that the law does not recognise marital rape under penal law, it does not inhibit the court from recognizing the same as a form of cruelty to grant divorce. We, therefore, are of the view that marital rape is a good ground to claim divorce.” The court also held that unsubstantiated claims of illicit relationships by the husband also amounts to cruelty.

The judgment of Kerala High Court has been the one of the landmark decisions. It sets the wheel of change moving towards acceptance of the existence of marital rape legally. Though, the marital rape has been recognised as the ground for divorce, it might be penalised soon. The verdict of the court is a progressive step towards the betterment of the society.

Read Also: Independent Thought V. Union Of India And Anr.

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