Allahabad High Court, India has held that forcible sex, be it unnatural or natural, is an illegal intrusion into the privacy of the wife and amounts to cruelty against her. The division bench comprising of Justice Shashi Kant Gupta and Justice Pradeep Kumar Srivastava upheld a District Court order allowing the divorce plea filed by a wife in which one of the grounds stated was cruelty through forcible sex. While allowing the plea the District Court had taken duly into account the woman’s deposition that her husband made sexual relation against her wishes forcibly in a very brutal and cruel way against the order of nature several times since marriage. The High Court bench referred to a Kerala High Court judgment in Bini T. John v Saji Kuruvila that had held that sexual intercourse against the order of nature or sodomy or unnatural sex or oral sex is a marital wrong and a ground for dissolution of marriage. Allahabad High Court has gone one step ahead in encompassing natural intercourse within the purview of marital wrong when that happens against the wish of the woman and upon infliction of force.
The Bench has also answered a very important question having bearing on law of evidence. More often than not it is argued that due to the inherent indeterminacy of the issue and the uncertainty associated with the standard of proof in cases of marital rape, prosecuting such crimes was near to impossible. The bench said that that the standard of proof required in a matrimonial rape case is the preponderance of probability (same as what is required in civil cases). The Bench observed, “[u]nnatural sex, sodomy, oral sex and sex against the order of the nature, against the wishes of a women or wife or anybody is not only a criminal offence but also a marital wrong and amounts to cruelty which is a good ground for dissolution of marriage. Any such thing which brings the wife to indignity and causes physical and mental agony and pain is cruelty. Forcible sex, unnatural or natural, is an illegal intrusion in the privacy of the wife and amounts to cruelty against her.” The significance underlying this observation lies with the fact that through this observation, the ambit of cruelty which has been a ground of fault-based non-consensual divorces for women for a substantial period of time in India, has been widened.