Kenya (2006), High Court at Nairobi

Kenya (2006), High Court at Nairobi


Esther Nangwanaa Nandi v. Jones Chewe Bobo
[2006] eKLR , Divorce cause 84 of 2005

The appellant sought the dissolution of her marriage on the grounds of cruelty; the respondent assaulted her, locked her out of their matrimonial home, and forced her to have sex with him while he was drunk. The Court found that the petitioner’s testimony was believable, and therefore dissolved the marriage.

“From her uncontroverted testimony it is proved that the acts of cruelty were of very serious nature and caused danger to her life and health. They are definitely those acts which could not be accepted as a wear and tear of a married life and of living together in thick and thin. They are also not isolated incidents. In the premises I do find that the Respondent is guilty of acts of cruelty and adultery and thus the Petitioner is entitled to have an order of dissolution of the marriage.” (Quoted form Original Judgment)

Nepal (2002), Supreme Court

Nepal (2002), Supreme Court

Forum for Women, Law and Development (FWLD) vs. His Majesty’s Government/Nepal (HMG/N)
Writ No. 55 of the year 2058 BS (2001-2002)

In this landmark case, the Supreme Court acted in order to uphold the equality of married women. The decision to recognize marital rape as unconstitutional was framed in the context of a series of international conventions such as CEDAW and ICCPR. Additionally, the Court referred to religious texts, and concluded that Hinduism does not condone such violence as marital rape.

“Women do not lose human rights because of marriage. So long as a person lives as a human being he/she is entitled to exercise those in-born and natural human rights. To say that the husband can rape his wife after the marriage is to deny independent existence, right to live with self-respect and right to self-determination.” (Quoted form Original Judgment)

United Kingdom (1998), Court of Appeal

United Kingdom (1998), Court of Appeal

R. v H
[1999] 1 Cr. App. R.(S.) 470, *470

Among other offences, the appellant was found guilty of raping his estranged wife. The Court sentenced him to ten years imprisonment, but this appeal reduced his term to seven years because the Court found that the appellant recognized the seriousness of his actions.

“Since the sentence was passed upon him this man has come to a full realisation of what he has done... and the way in which he has abused his wife, who is to be, in many ways, commended for the understanding and forgiving attitude which she has adopted towards him.”(Quoted form Original Judgment)

United Kingdom (1995), European Court of Human Rights

United Kingdom (1995), European Court of Human Rights

SW v United Kingdom (A/355-B):
(1996) 21 E.H.R.R. 363, *363

The applicants complained that there had been a violation of Article 7(1) of the ECHR in that they had been found guilty of the crime of marital rape even though at the time they had committed the act, that act did not constitute a crime. However, the Court held that the Convention had not been violated.

“It seems to us that where the common law rule no longer even remotely represents what is the true position of a wife in present day society, the duty of the court is to take steps to alter the rule if it can legitimately do so in the light of any relevant parliamentary enactment…. the abandonment of the unacceptable idea of a husband being immune against prosecution for rape of his wife was in conformity not only with a civilized concept of marriage but also, and above all, with the fundamental objectives of the Convention, the very essence of which is respect for human dignity and human freedom. ” (Quoted form Original Judgment)

United Kingdom (1992), House of Lords

United Kingdom (1992), House of Lords

R v. R
[1992] 1 A.C. 599

The defendant appealed his conviction for attempted rape on the grounds that a husband cannot rape his wife. The Lords overturned the common law rule which stated that marriage automatically gave consent for sexual intercourse.

“Marriage is in modern times regarded as a partnership of equals and no longer one in which the wife must be the subservient chattel of the husband. Hale's proposition involves that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of the state of her health or how she happens to be feeling at the time. In modern times any reasonable person must regard that conception as quite unacceptable.” (Quoted form Original Judgment)

United States (1984), New York State Court of Appeals

United States (1984), New York State Court of Appeals

People v. Liberta
64 N.Y.2d 152, 474 N.E.2d 567, 485 N.Y.S.2d 207(1984)

After brutally attacking his estranged wife in front of their son, the defendant was indicted for rape in the first degree and sodomy in the first degree. The Court declared the marital exemption for rape in the New York statute to be unconstitutional.

“A marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity. A married woman has the same right to control her own body as does an unmarried woman…We find that there is no rational basis for distinguishing between marital rape and non marital rape. The various rationales which have been asserted in defense of the exemption are either based upon archaic notions about the consent and property rights incident to marriage or are simply unable to withstand even the slightest scrutiny.” (Quoted form Original Judgment)