Context: In a landmark judgement, a division bench of Kerala High court said marital rape is a good ground to claim divorce. Treating wife's body as something owing to her husband and committing a sexual act against her will is nothing but marital rape.

• In short the court held that marital rape is a valid ground for divorce even though it is not penalised in India.

Significant observations while granting divorce to the wife
In modern social jurisprudence, spouses in marriage are treated as equal partners and husband cannot claim any superior right over wife either with reference to individual status. 

• 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. 

In matrimony, spouse possesses such privacy as invaluable right inherent in him or her as individual. 

• Therefore, marital privacy is intimately and intrinsically connected to individual autonomy and any intrusion, physically or otherwise into such space would diminish privacy.

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. 

Why marital rape is a good ground to claim divorce?

• Insatiable urge for wealth and sex of a spouse would also amount to cruelty. 
• Unsubstantiated allegations of adultery would also constitute mental cruelty.

A spouse in a marriage has a choice, a choice not to suffer, which is fundamental to the autonomy guaranteed under natural law and the Constitution. 

• Law cannot compel a spouse to suffer against his or her wish by denial of divorce by the court. 

In a changed scenario of marriage in the society, shifting from the social philosophy to individual philosophy, we are afraid whether the present divorce law on enumerated grounds would stand to the test of constitutionality. Fine balancing of individual choice and individual's best interest is missing in such law.

• The framework of divorce law must be with an objective to help individuals to take a decision on their own affairs. This framework must promote a platform at different levels to enable individuals to exercise free choice.

Laws defining Rape in India

• The definition of rape codified in Section 375 of the Indian Penal Code (IPC) includes all forms of sexual assault involving nonconsensual intercourse with a woman.
• The exception 2 to Section 375 exempts unwilling sexual intercourse between a husband and a wife over fifteen years of age from Section 375’s definition of “rape”.
• India is one of the thirty-six countries that still have not criminalized marital rape.

Violation of Constitutional Rights

• Violation of Article 14: Although the Constitution guarantees equality to all, Indian criminal law discriminates against female victims who have been raped by their own husbands.
• Violation of Article 21: The courts have begun to acknowledge a right to abstain from sexual intercourse and to be free of unwanted sexual activity enshrined in these broader rights to life and personal liberty.
• The Supreme Court has explicitly recognized in Article 21 a right to make choices regarding intimate relations.

Road Ahead

• Our law also should equip to deal with marital damages and compensation. We need to have a law dealing with human problems with a humane mind to respond. 
• There cannot be any difficulty in having a common code of law to all communities, at least for marriage and divorce on the above line. 
• Individuals are free to perform their marriage in accordance with personal law, but they cannot be absolved from compulsory solemnization of the marriage under secular law. 
• Marriage and divorce must be under the secular law; that is the need of the hour. Time has come to revamp the marriage law in our country.