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Historically forcing one’s wife to have sex, was not defined as rape, rape would generally be defined as any sexual act against a women without her consent, the common notion attached to marital rape is the husband has a licence to rape his wife, sex is the essence of a marriage, irrespective of consent. Marital rape has been a question for divorce for a long time, and the only reason why marital rape is not considered as a reason for divorce is because it is tradionally known that a husband has complete right over a women after their marriage, consent of the wife for any sexual intercourse is unnecessary. Rape under section 375 of Indian Penal Code states that rape is said to be committed against a women when it is against her consent, will and her consent obtained when there is threat to her life or the threat towards family members life, then what different is it in marital rape, it is still against her will, consent why it cannot be a ground to seek divorce .The Hindu Marriage act- 1955, section 13, explains the different grounds for a divorce,- cruelty, sexual intercourse with any other person other than his/her spouse, deserted the petitioner for more than two years, has converted to any other religion, and had been suffering from a continuous mental disease, but no where marital rape has been mentioned. On a recent case Preeti Kumari v. Neelkanth Kumar, the high court of Punjab and Haryana has given remarkable judgement stating Forced Sex certainly a ground to seek Divorce, it is extremely important to understand how did the court come up to this decision. The wife had alleged that her husband forced sex against her even during her menstrual cycle, she also claimed that her husband consistently committed sodomy despite her resistance and she was forced to continue with such behavior, it was also stated that dowry, gold ornaments, and household articles were provided to the boys family. It was held that the wife suffered both physical and mental cruelty. The petitioner had left her house with her minor child, the court said that no wife having a child would abandon her matrimonial home if there are no compelling circumstances. The court considered this as an act of cruelty, the act of sodomy, forcible sexual intercourse and adoption of unnatural means which are forced upon the other spouse and results of unbearable pain to the extent that one has to stay away, this would be considered as a ground to seek separation or decree of divorce, as mentioned above demanding dowry, violence against the petitioner, creating such circumstances that the appellant was compelled to leave the house. The actions carried out by the respondent on the petitioner were considered as an act of cruelty, including the forced sex, any act that causes physical or mental harm upon a person with or without intention would be called as cruelty, the cruelty established in the present case is mental as well as physical, and hence it can be a reason to gain divorce.
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