Kerala High Court ruled Friday that although marital rape is not a criminal offence in India, it constitutes a “good ground” for divorce.

This case represents an appeal by a woman’s husband against the decision of a family court which allowed the wife’s petition for divorce on the ground of cruelty. The petition claimed that the husband treated his wife like “a money-minting machine.” Furthermore, the wife told the court that her husband constantly harassed her and made demands for money, subjecting her to all sorts of sexual perversions against her will. She also testified that her husband committed forceful sexual intercourse when she was sick and bedridden, including in front of their daughter.

The court observed that “a husband’s licentious disposition disregarding the autonomy of the wife is a marital rape.” It held that husband and wife are equal partners in marriage and that the husband has no “superior right” over the wife with respect to her body or individual identity. Furthermore, the court observed that treating a wife’s body as if it belongs to her husband and committing sexual acts against her constitutes marital rape, which violates individual autonomy. Individual autonomy is inextricably linked to marital privacy and any intrusion into such space jeopardises privacy. This consequently amounts to cruelty.

In India, cruelty is a ground to claim divorce under Section 13 of the Hindu Marriage Act and Section 27 of the Special Marriage Act. The court held that the fact that the law does not recognise marital rape as a criminal offence does not prevent the court from recognising it as a form of physical and mental cruelty to grant a divorce. In a marriage, a spouse has the choice not to suffer, which is integral to the autonomy assured by natural law and the Constitution of India. The law cannot force a spouse to suffer against their will by refusing to grant a divorce.

Although marital rape has now been recognized as a ground for divorce in India, the Indian government is against criminalising marital rape as it believes that it would “destabilise the institution of marriage.”