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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.
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.
In matrimony, spouse possesses such privacy as invaluable right inherent in him or her as individual.
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?
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.
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.
Laws defining Rape in India
Violation of Constitutional Rights
By: Shubham Tiwari ProfileResourcesReport error
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