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In an unprecedented move, the Gujarat High Court observed yesterday that by making marital rape a criminal offense, the “destructive attitudes” that promote it could be removed.

The observation comes as debates are brewing in India on the  criminalization of marital rape. Section 375 of the Penal Code, which defines the offense of rape, has an exception clause that excludes marital rape of women aged above 18.

Justice J B Pardiwala made the observation while hearing a petition filed by a doctor who was seeking to quash a First Information Report (FIR) filed against him by his wife, news agency Press Trust of India (PTI) reported.

“The total statutory abolition of marital rape is the first necessary step in teaching societies that dehumanized treatment of women will not be tolerated and that marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalized,” Justice Pardiwala said in his order.

The woman who filed the complaint told at the hearing that she had been facing mental and physical harassment by her husband along with forced oral sex.

Since neither Section 375 that defines rape nor Section 376 that provides punishment for rape could be used in the case of an adult married woman, the judge partially quashed the FIR registered against the husband for rape and unnatural sex. Instead, he directed the police to book the doctor for sexual harassment and domestic violence.

“No one is even willing to discuss … the criminalization of marital rape…. A law that does not give married and unmarried women an equal protection creates conditions that lead to marital rape,” the judge said, according to PTI.

Last October, the Supreme Court ruled that if a man has consensual or non-consensual sex with his wife aged under 18, it would be considered statutory rape. The earlier age limit was 15 years whereby a married girl could to have her husband prosecuted for rape. But the judgement avoided talking about the marital rape of women aged above 18 years.

The latest National Family Health Survey reports that among women aged 15-49 who were ever married and have ever experienced sexual violence, 83% named their current husband and 9% named their former husbands as the perpetrator.

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