Does this endorse marital rape or not?

[HinduWoman]

Read about a case in Kolkata. Short summary (cannot find link):

There was this family with two children. When the husband was 33 the wife refused to have sex with him any longer on grounds that she did not want any more children. For 10 years the husband tried to persuade her but no go. Then he decided to go to court for a divorce. After lots of to and froing and taking breaks the case finally firmed up. Lower courts granted a divorce and the wife appealed to the High Court. Last month the High Court in Kolkata granted him a divorce saying that the wife withholding sex for so long amounted to cruelty.


On one hand this seems to be saying that husband can have sex at any time he wants without regard to the wife.
On the other hand divorce is not so bad.

Gray areas:
the wife's argument she does not want any more children. As the judge observed in this day of contraceptives and morning-after pills and even easy abortions this is not a tenable cause.

While pleading against the divorce decree the wife said that since by this time the husband is nearly 60 the divorce on the grounds of no sex is meaningless. But as the judge said he would at least have peace if not a new wife.

IMO, In both cases the wife made very poor arguments.

N.B: courts have granted divorces to wives if husbands refused to have regular sex with them. One does not call wives' demand for sex marital rape, but the principle is the same.
According to Supreme Court judgements the husband not having sex with his wife amount to cruelty and so wives can get a divorce.

[dancer_rnb]

I think what this says is you can't trap a person in a sexless marriage.
Doing away with sex should require a major renegotiation of the terms of a marriage, at the very least.

[LoneWolf]

This in no way endorses marital rape. I'm don't think refusing sex amounts to cruelty but it does seem like grounds for a divorce. But a bigger issue for me is how can someone appeal a divorce? If one person of a couple wants a divorce that should be enough reason in itself.

[His Noodly Appendage]

Looks like a breach-of-contract thing to me.

I enter into an agreement with another party to do P, Q and R in exchange for S, T and U.

If I refuse to do Q, it is asserted that the other party has grounds to terminate the agreement.

It is not asserted that the other party has grounds to physically force me to do Q in order to enforce compliance with the terms.

So no, I'd say that this is a long way from endorsing marital rape.

[Free in Freeport]

Where is there any suggestion of a right to rape? Vastly differing needs/desires for sex can definitely be considered an irreconcilable difference.

[premjan]

The Shiite law in Afghanistan can be reinterpreted in a way that doesn't imply marital rape: I heard a cleric state that a husband can withhold food from his wife if she withholds sex (this implies that he is the the wage earner of course).

[darjeeling]

The Shiite law in Afghanistan can be reinterpreted in a way that doesn't imply marital rape: I heard a cleric state that a husband can withhold food from his wife if she withholds sex (this imlpies that he is the the wage earner of course).

How progressive.

[premjan]

I'm not even sure there is a progressive way to interpret any marriage contract, where it is not a genuine pair bond, it just ends up as two people using each other. It is just a question of whether you accept it at the outset (like a pre-nup) or not. The Islamic notion of marriage is contractual, so like a prenup.

[Stout Drinker]

Prior to no fault divorce laws, alienation of affection was a common justification for divorce.

I don't see how the OP relates to marital rape at all.

[HinduWoman]

It is the resemblance with the recent Afghani law that was troubling me.

[HinduWoman]

This in no way endorses marital rape. I'm don't think refusing sex amounts to cruelty but it does seem like grounds for a divorce. But a bigger issue for me is how can someone appeal a divorce? If one person of a couple wants a divorce that should be enough reason in itself.

In India the other party can appeal on the grounds that they want another shot at working things out, specially if there are children.
That is because the culture is very big on family stability.

In fact unless there are compelling reasons like torture to grant immediate divorce, in cases where there is just differences the couple is required to live apart for a year with no sexual relationships to get a divorce or to show that they have already lived in such a way for a year.

[Stout Drinker]

It is the resemblance with the recent Afghani law that was troubling me.

If the remedy is divorce which is what you indicated in the OP I don't see it as similar to the Afghani law that justified marital rape.

Divorcing a spouse who refuses to have sex is one thing and understandable.

Raping a spouse who refuses to consent to sex is barbaric.

[DMB]

I think it's grounds for divorce. The husband isn't asking for enforced sex.

Before the days of contraception, this would have looked different. When Queen Victoria was told by doctors after the birth of her ninth child that she must henceforth abstain from sex in order to avoid further pregnancies, she lamented that there would be no more fun in bed.

A man who obliged his wife to have unwanted and possibily dangerous pregnancies would be doing something close to rape.