CHANDIGARH UNIVERSITY

BALLB - 4TH SEM

RESEARCH PAPER ON
MARITAL PAPER

SUBMITTED TO: SUBMITTED BY:

MS. PUJA SHARMA VAISHALI THAKUR
17BAL5035
 ABSTRACT

Humanity stands on two pillars, men and women, they should have equal
importance and role in its development and growth, but women have always
been subjected to a lot of humiliation by men, rape is an apt example of the
atrocities committed against the dignity of women. The offence of Rape is
one of the most gruesome and barbarous crimes perpetrated against
women. Marital Rape, though not defined as a crime, in India is one of the
most debatable and divergent issues. Women have been treated as an object
of pleasure since time immemorial. They have been victims of crimes like
rape, sodomy, sexual harassment, female infanticide etc. In recent times,
where the general public is fighting for equal rights for both men and women
the rate of crime against women is proliferating. Rape is a crime due to which
women all over the world are suffering. Other countries have tried their best
in making laws for the protection of women. India is focusing on protection
and prevention of crimes against women but fails to protect a married
woman from her rapist who apparently in such cases is her husband, by not
having any legal provisions acknowledging marital rape as a crime. There is
need for immediate criminalization of marital rape. The research paper
submits the reason regarding the failure of law in India by not defining
marital rape as a crime and the consequences of the same.
 INTRODUCTION
“The day will come when men will recognize woman as his peer, not only at
the fireside, but in councils of the nation. Then, and not until then, will there
be the perfect comradeship, the ideal union between the sexes that shall
result in the highest development of the race.”

– Susan B. Anthony

Violence against women is a manifestation of historic power play struggles

between men and women, which has led to domination over and
discrimination against women by men and to the prevention of the full
advancement of women, and that violence against women is one of the
crucial social mechanisms by which women are forced into a subordinate
position compared with men. As Susan Brown miller asserts, “The ancient
patriarchs who came together to write their early covenants had used the
rape of woman to forge their male power- how then could they see rape as a
crime of man against woman? Women were wholly owned subsidiaries and
not independent beings.”[ii]

India is the seventh largest country in the world. Its population is over 1.2
billion and is the most-populous democracy in the world. It is a country with
a blend of various religions, cultures, languages, customs, usages and much
more. The crime rate in India is increasing at an alarming rate. As per the
Crime Index for 2015 Mid-year, crime index in India is 46.82[iii] and as per the
reports of the National Crime Record Bureau, crime against women during
the year 2013 was noted to be approximately 52.2.[iv]

It has been rightly said that the worth of a country can be judged from the
position that it gives to women. Women have never been given importance
in India; their position is still not what it should have been. In India women
have always been considered inferior to men which have led to India being
developed as a country with male chauvinist ideologies. Women in India are
subjected to criminal atrocities such as Rape, Domestic Violence, sexual
harassment, trafficking and forced prostitution. This is just a small part of a
never ending list of crimes against women.
Marriage, also called matrimony or wedlock, is a socially and legally
recognized union between spouses that establishes rights and obligations
between them, their children, and their in-laws. According to ancient Hindu
scriptures no religious rite can be performed with perfection by a man
without the participation of his wife. Wife’s participation is essential in any
religious rite. Wives are thus befittingly called ‘Ardhangani’ . They are
supposed to be given not only important but equal position with men.[vi] But
with reference to recent times it can be noticed that the position of women is
deteriorating.

The idea of the “sacrosanct” institution of marriage portrayed in India is

contrary and far from women’s perception of reality. Hidden under the iron
veil of marriage lies the ugly truth of crimes like marital rape, domestic
violence etc. Marital rape is not legally recognized as a crime in India and
thus, there is no penalization for the same. Through this research paper, the
researchers make an attempt to denounce the discrimination faced by
women with regard to marital rape and the shortcomings of the Indian
Judicial System by not conceding marital rape as an offence. The researchers
also provide arguments and reasons supporting the need for criminalization
of marital rape in India, and further suggest certain legal reforms essential to
achieve the desired objectives.
MARITAL RAPE- MEANING
Marital rape refers to the sexual intercourse between a man and a woman,
who are legally accepted as husband and wife, where the woman does not
give consent for such intercourse. Marriage, as discussed earlier is an
unimpeachable bond in which the man and woman vow to live together in
happiness as well as in pain by greeting the flaws of each other. Marriage
also gives a right to the husband and wife to lawfully consummate their
marriage. Consummation is considered to be a necessary requisite after the
marriage has taken place. Marriage is a stable relationship in which a man
and a woman are socially permitted to have Children implying the right to
sexual relation[vii].

Being a part of the wedlock does not permit the man to forcefully have sex
with his wife. The right to have sexual intercourse must be consensual and
not an obligation of the wife. The wife should have the liberty to refuse to
have sex and cannot be compelled by her husband to do it. Even today the
law system in India does not recognize marital rape as a crime. It is a
debatable issue on which so far no conclusion has been drawn.

Marital Rape also known as Spousal Rape or Inmate Partner rape is a rape
committed by one spouse against the other. To understand the complications
of Marital Rape one must first understand the difference between Rape and
Marital Rape as both the terms have different meanings and cannot be used
interchangeably.

The dictionary meaning of word rape is “the ravishing or violation of a

woman.” The summary of definition of Rape as defined and accepted by FBI
is- “Penetration, no matter how slight, of the vagina or anus with any body
part or object, or oral penetration by a sex organ of another person, without
the consent of the victim.”

According to Morton Hunt, “The typical marital rapist is a man who still
believes that husbands are supposed to “rule” their wives. This extends, he
feels, to sexual matters: when he wants her, she should be glad, or at least
willing; if she isn’t, he has the right to force her. But in forcing her he gains
far more than a few minutes of sexual pleasure. He humbles her and
reasserts, in the most emotionally powerful way possible, that he is the ruler
and she is the subject.”
As per the Indian Penal Code, 1860, the definition of Rape under section 375,
states that sexual intercourse with a woman would be constituted as rape if
it is against her will or without her consent. If the consent of the woman is
obtained by coercion or causing apprehension of grievous hurt or death, it
will also be called rape. If a man fraudulently makes the woman believe that
he is her husband and has intercourse with her , that is also rape. If a man
has sexual intercourse with a woman who is unable to give consent due to
unsoundness then it would also constitute rape.

Sexual intercourse with a girl who is under sixteen years of age would also be
called as rape even if the girl consented for such intercourse.

Apart from this the definition of rape also comprises of an exception which
states that a man having sexual intercourse with his own wife, who is not
under the age of fifteen years is not rape.

Section 375, the provision of rape in the echoes very archaic sentiments,
mentioned as its exception clause- “Sexual intercourse by a man with his
own wife, the wife not being under 15 years of age, is not rape.” There is
clear preference of the rights of the husband over his wife against the wife’s
right to herself.[xi] It can be clearly seen that the exception to this section
does not acknowledge a wife being raped by her husband, provided that she
is above 15 years of age. The Indian Penal Code Simply overlooks an offence
as atrocious as marital rape by not having a provision for it.

Marital Rape also known as Spousal Rape or Inmate Partner rape is a rape
committed by one spouse against the other.[xii] The court in a case said
“Defense counsel rightly argued that IPC does not recognize concept of
marital rape. If complainant was a legally wedded wife of accused, the sexual
intercourse with her by accused would not constitute offence of rape even if
it was by force or against her wishes”.
EFFECTS OF MARITAL RAPE

Marital rape affects a woman drastically, it has always been thought that if a
woman is raped by her partner it is comparatively less traumatic for her, but
that is a myth. Research shows that marital rape has more severe and long
lasting consequences for women because of the simple fact that the rapist is
none other than her husband with whom she had expected to spend a
lifetime of happiness.

The effects of marital rape can be broadly classified into two categories –

1. Physical effects – The physical effects of marital rape include injuries to

private organs, bruises , torn muscles , lacerations, fatigue, fractures
etc. women who are subjected to physical violence as well as rape
suffer from other complications like blackened eyes , broken bones,
and wounds inflicted by any sort of a weapon, during sexual violence

Women also go through some gynecological problems due to marital rape

like miscarriages, infections, infertility and also the chance of contracting of
various sexually transmitted diseases like HIV etc.

2. Psychological effects – The trauma a woman goes through when her

own husband repeatedly rapes her cannot be explained in words. The
psychological effects are far worse than the physical effects, some of
the short term psychological effects are shock, fear , post traumatic
stress , suicidal tendencies etc. the long term effects include eating
disorders, depression , sexual dysfunction etc.

Marital rape or for that matter crimes against women can have numerous
reasons , the most obvious being the desire of men to assert superiority over
women other reasons can be sexual perversion of husband , or any small
issue. Our patriarchal and male dominated social system is the main reason
behind the widespread gender inequality which leads to the suppression of
the female counterpart in the society. Women in our society have never been
given the same status and importance as men; they even don’t have the
same rights as men. This gives men an unjustified edge over women which is
very much exploited.
Another reason is the traditional role which a woman is expected to play
regardless of her choice. Women are expected to be in the role of a pativrata
stri which means a pure, faithful and obliging wife. Our society has limited
the role of the woman to simply belonging to someone else, a daughter
belonging to her father, a mother belonging to her children and the wife
belonging to her husband. Slowly and steadily the role of a woman has been
reduced just to belonging to someone else and having no identity of her own.

After marriage women are treated like a piece of property acquired by the
husband. All these social norms and traditions gives the male ego a boost
which leads to superiority complex in them, this causes men to start
believing that they can do anything with their wives and that consent to sex
is impliedly given when she agrees to marry him. So when after marriage, if
the wife refuses to have consensual sex, they believe there’s nothing wrong
in forcefully having sex with her. But what men forget in these situations is
that any type of sex which is not consensual is called rape, and they
knowingly or unknowingly are repeatedly raping their wives. Not having
legislation against marital rape is biggest reason that men don’t think twice
before raping their wives. Thus if a wife files a complaint against her husband
she will have no specific legal remedy. So the notion of a ‘good wife’ is not
good for women but for men only.

In a research it was concluded that a husband who forcefully tries to have

sexual intercourse with his wife always has some intention behind it. The
reasons can be to have a feeling of power over her, way of getting rid of his
anger over her or due to some other tensions, having a sense of insecurity or
inadequacy or in other words having an inferiority complex over her, having
a sadistic nature and getting sexually aroused by causing her pain and fear,
choosing coercive sex over consensual sex and finally to ensure a sense of
entitlement.

Marital rape in itself is a type of domestic violence. It is an act of forceful and

violent control and thus, sometimes includes physical abuse, emotional
abuse, mental abuse, social abuse, financial abuse, spiritual abuse and usage
of male privilege. Wife experiencing such forms of abuse, may doubt their
own worth or sanity, and may have little self-confidence. Historically, women
were seen as the property of their husbands – but it’s not necessary for
wedding rings to be traded for ownership of a woman to be assumed – and
those who were raped by boyfriends, fiancés and live-in partners can attest.
TYPES OF MARITAL RAPE

The following three kinds of marital rape are identified by legal scholars as
generally prevalent in the society[xvi]

 Battering rape: In battering rapes, women experience both physical

and sexual violence in the relationship and they experience this
violence in various ways. Some are battered during the sexual violence,
or the rape may follow a physically violent episode where the husband
wants to make up and coerces his wife to have sex against her will. The
majority of marital rape victims fall under this category.
 Force-only rape: In what is called force-only rape, husbands use only
the amount of force necessary to coerce their wives; battering may not
be characteristic of these relationships. The assaults are typically after
the woman has refused sexual intercourse.
 Obsessive rape: Other women experience what has been labeled
sadistic or obsessive rape; these assaults involve torture and/or
perverse sexual acts and are often physically violent.

.
MARITAL RAPE LAWS – A
COMPARITIVE STUDY

Marital rape is a widespread problem for a woman that has existed for
centuries throughout the world.[xvii]Despite this fact, marital rape has been
largely overlooked in the rape and domestic violence literatures, this
problem has received relatively little attention from social scientists, legal
practitioners, the criminal justice system, and the society as a whole but after
analyzing the need for reforms in the legal system regarding the penalization
of various crimes against women and especially married women, various
countries have acknowledged this as a crime with severe penalties. Marital
rape is illegal in eighteen American states, three Australian states, New
Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union,
Poland and Czechoslovakia. Some of such countries and penalization in their
laws are as follows –

U.S.A
Rape is defined as any nonconsensual sexual intercourse between non-
spouses and it has always been illegal. However, until 1975, every state had a
“marital exemption” that allowed a husband to rape his wife without fear of
legal consequences. By 1993, largely in response to the women’s rights and
equality movement, every state and the District of Columbia had passed laws
against marital rape. Since 1993, all 50 states and DC have enacted laws
against marital rape. The only marital exemption that still exists in some
states is for statutory rape. All states now recognize rape within marriage as
a crime, and most charge the crime in the same way that rape between
strangers would be charged.
U.K.
The marital rape exemption was abolished in England and Wales in 1991 by
the Appellate Committee of the House of Lords, in the case of R v R. The
exemption had never been a rule of statute, having first been promulgated in
1736 in Matthew Hale’s History of the Pleas of the Crown, where Hale stated:
But the husband cannot be guilty of a rape committed by himself upon his
lawful wife, for by their mutual matrimonial consent and contract the wife
hath given up herself in this kind unto her husband which she cannot retract.
Corresponding amendment to the statutory law was made through Section
147 of the Criminal Justice and Public Order Act, 1994. This judgment was
also affirmed by the European Court of Human Rights in the decision of SW v.
UK.

Still many countries like India, Bangladesh, Pakistan, Yemen, Kuwait, Iran,
and Egypt etc. have not accepted marital rape as a crime and thus there is no
legal remedy available for victims of such crimes. But even in countries
where it is a crime, the onus of proof still lies on the women. For women who
are married it is difficult to prove that she has not consented for sexual
intercourse thus complicating such provisions.

India
Marital Rape, as described earlier, defined as any unwanted intercourse or
penetration obtained by force, threat of force, or when the wife is unable to
consent.[xix] In India Marital Rape exists de facto and de jure.

Domestic violence has emerged as the single-largest crime against women. In

2013, the National Crime Records Bureau (NCRB) reported over 118,000
domestic violence cases, which made up a third of all crimes against women,
far ahead of molestation (70,739) and rape (33,707). The number of reported
domestic violence cases also shot up from a mere 50,703 in 2003 before the
passage of the Domestic Violence Act, 2005. Sexual violence, including rape,
falls within the larger ambit of domestic violence, but rape by husbands
within marriages is a shadowy subject in India and exact numbers are hard to
come by.[xx]
Sexual Offences against women have become a very sensitive issue in India.
After the Delhi Gang Rape Case, the government of India tried to make and
implement arduous laws keeping in mind the safety of women. Marital Rape
although has still not been able to achieve status of a crime.

Article 14 of the Indian Constitution states “Equality before law.” It prevents

state from discriminating amongst the citizens on any ground, but in regard
to defining marital rape as a crime the State discriminates against women. As
per exception of Section 375 of Indian Penal Code, a married female below
the age of 15 years has a right to allege her husband against the charge of
marital rape if her husband forces her to have sexual intercourse with him
without her consent or will. The question arises that why this right curtailed
is after she has attained the age of 15 years. Being in a marriage does not
give the male the power or authority to dominate the female and fulfill his
sexual needs. The article does not provide reasonable classification for this
discrimination within the gender.

Moreover, this exception under section 375 of the Indian Penal Code is in
itself contradictory because as per the Hindu Marriage Act 1955, Section 5 (c)
(iii) the rightful age for a female to marriage is 18 years. Thus, this anyways
leads to contradiction in laws prevailing in India.

Article 21 of the Indian Constitution states “Protection of life and personal

liberty.” The article includes the right to live with personal liberty and dignity
but if a female is forcefully asked to have a sexual intercourse with her
husband then the validity of her right to exercise her personal liberty is
questionable and her dignity is affected. Exception to Section 375 of Indian
Penal Code violates this right given to all females.

Article 51A (e) of the Indian Constitution states that the fundamental duty of
every Indian Citizen to renounce practices derogatory to the dignity of
women.

The delay in the acknowledging marital rape as a crime is a fault on part of

the Indian Judicial System, there is immediate need to criminalize marital
rape in India. It violates the basic rights of women guaranteed by the
Constitution of India.
WHY IS MARITAL RAPE STILL
NOT RECOGNISED AS A CRIME

So far in describing marital rape the only question that comes in one’s mind
is that since everyone is aware about the subject matter and its adversities
faced then why is marital rape still not recognized as a crime in India.
Whether or not to criminalize rape within a marriage has long been debated
in India. Apparently The United Nations has recommended India make it
criminal for a man to rape his wife.

Criminalizing marital rape was also one of the suggestions of the Verma
Committee, a three-member panel appointed to strengthen India’s sexual-
assault laws in the wake of a brutal gang rape in 2012.The Justice Verma
committee had suggested that marital rape should be made an offence, a key
demand of women’s rights activists[xxi]. According to the committee the IPC
should differentiate between rape within marriage and outside marriage.
Under the IPC sexual intercourse without consent is prohibited. However, an
exception to the offence of rape exists in relation to un-consented sexual
intercourse by a husband upon a wife. The Committee recommended that
the exception to marital rape should be removed. Marriage should not be
considered as an irrevocable consent to sexual acts. Therefore, with regard to
an inquiry about whether the complainant consented to the sexual activity,
the relationship between the victim and the accused should not be
relevant.[xxii] The then government, led by the Congress party, had rejected
this proposal. A panel of lawmakers who opposed the move at the time
argued it had “the potential of destroying the institution of marriage, if
marital rape is brought under the law, the entire family system will be under
great stress.” The government eventually passed a new sexual-assault law,
which did not criminalize marital rape in 2013.[xxiii]
The government today says the cause for marital rape in India is poverty,
religious beliefs, social customs and the mindset of the Indian society, among
other things. As per the latest parliamentary discussions it seems like the
current government led by India’s Bharatiya Janata Party-government,
headed by Prime Minister Narendra Modi does not settle to introduce any
plans relating to punishments or penalties for marital rape. “It is considered
that the concept of marital rape, as understood internationally, cannot be
suitably applied in the Indian context,” Haribhai Parathibhai Chaudhary, a
minister in India’s Ministry of Home Affairs, said in a written statement to
India’s upper house of Parliament. He attributed this to “various factors e.g.
level of education/illiteracy, poverty, myriad social customs and values,
religious beliefs, mindset of the society to treat the marriage as a sacrament,
etc.”

But contradictory to such statements, the Indian society is drastically

changing, a marriage that supports violence should no longer be considered
to be sacrosanct. The argument that Indian society is too traditional to
criminalize marital rape is baseless and unreasonable; such propaganda
should not be taken up by the government. The government should be clear
on the agenda they want to promote, on one hand the officials and ministers
rant on about gender equality, elimination of gender stereotypes and women
empowerment by giving women an opportunity to stand equal to men in all
aspects, while on the other hand they do not give women even the basic
rights they deserve. At a time when the world’s most powerful democracies
are legalizing same-sex marriage, the world’s largest democracy is doing
nothing to help women getting raped by their husbands, hiding behind the
veil of tradition. If tradition is the only barometer then Dalits would still be
untouchable, temples and high-end jobs would remain out of bounds for
many castes. Tradition cannot be used to defend the indefensible. On issues
related to human rights we cannot discriminate against women on the basis
of marital status.
MARITAL RAPE AND DIVORCE

Since marital rape is not recognized as a crime in India, a woman cannot take
the same as a ground for divorce, but marital rape can and should be at least
acknowledged as a type of cruelty against the wife, which can be a valid
ground for divorce under section 13 (1) (i) (ia) of the Hindu Marriage Act,
1955. Cruelty and its various provisions given under different laws in India
are explained as follows-

Meaning of cruelty:

The definition of cruelty as stated in Black’s Law Dictionary is ‘the intention

and malicious Infliction of mental or physical suffering on a living creature,
esp. a human; abusive treatment.’[xxv]

Cruelty is explained rather than being defined in Section 498A of the Indian
Penal Code. It states that any conduct which is of such a nature as is likely to
drive the woman to commit suicide or to cause grave injury whether mental
or physical or harassment of the woman to meet unlawful demand.

There have been various acts which have tried and failed to properly define
the term cruelty like the Hindu Marriage Act, 1955 or the Dowry Prohibition
Act 1961 or the Indian Evidence Act.

This term was clearly defined in the landmark judgment in Shobha

Rani v. Madhukar Reddy;[xxvi] it was observed that the word “cruelty” has not
been defined. Indeed it could not have been defined. It has been used in
relation to human conduct or human behavior. It is the conduct in relation to
or in respect of matrimonial duties and obligations. It is a course of conduct
of one which is adversely affecting the other. The cruelty may be mental or
physical, intentional or unintentional. If it is physical the court will have no
problem to determine it. It is a question of fact and degree. If it is mental the
problem presents difficulty.’
Provisions for cruelty:

Cruelty, one of the grounds for judicial separation under Section 10(1) (b) of.
A person may file a petition for a decree of judicial separation on the ground
of cruelty which can cause an apprehension that it will be harmful to live
with the spouse

Cruelty, one of the grounds for divorce under Section 13(1) (i -a): Any
marriage may, on a petition presented by either the husband or the wife, be
dissolved on the ground that the other party has, after the solemnization of
the marriage, treated the petitioner with cruelty.[xxvii]

Cruelty as defined in the former part as per Indian Penal Code includes
harassment and marital rape can be included as a kind of sexual harassment
by the husband on his wife. The Indian Legal System does not support
women who are above fifteen years of age and allege that they have been
raped by their husbands, this also demoralizes the spirit of women. This
unsupportive nature of the society and family also makes it difficult for
women to bring in light that she has been raped by her husband. Men mostly
rape their partners just to experience the feeling of power and the pleasure
they gain by exercising their dominance over the other. It can be easily
understood that husband’s who rape their wives are not serial rapists but
just men in need of ego boosts to show their manhood. In India being in a
marriage is apparently thought to be an indirectly given consent to have
sexual intercourse, even if done violently, thus women should have a right
take to divorce on grounds of Marital Rape. The same should be included as a
ground for divorce in the Hindu Marriage Act and until necessary changes are
made by the judicial system, women will continue to be subjected to such
atrocities.
CONCLUSION AND
SUGGESTIONS

Despite the fact that marital rape receives little public, scholarly and legal
attention, it is one of the most heinous crimes committed against the dignity
of a woman. Marital Rape has never received the attention of Indian
lawmakers. In India if a woman who is under 16 years of age has consensual
sex, then it is termed as rape and just because a woman is married and even
though her husband forcefully has sex with her then it isn’t rape. The idea of
a woman being raped by her husband, and the fact that she cannot seek
protection under any law in India is very disturbing. Marital rape disgraces
the sanctity of marriage. Marital rape is domestic violence and is not
justifiable on the basis of consent.

Various jurisdictions worldwide have either criminalized marital rape or are

in the process of acknowledging it as a crime, thus breaking the shackles of
traditionalism. A country like Nepal which has just recently abolished
monarchy; the supreme court of Nepal has ruled that forced sex within
marriage constitutes marital rape [xxx]. India sadly lags far behind.

A wife getting raped by her husband is not only expected to remain quiet
about such violence against her but also is suggested to learn to live with it.
and continue living with her husband. The worst part being that the woman
has to continue living with her rapist who apparently is her husband, for the
rest of her life . Corresponding changes to respective matrimonial laws
should be made. There is need for substantial changes in the law on sexual
offences such as making them gender-neutral and eliminating the
inequalities, a radical overhauling of the structure of sexual offences is not
advisable.
The modern women in today’s time should be psychologically prepared and
aware about such crimes. Women need to be educated regarding their rights.
Al Anon once said “If you don’t like being a doormat then get off the floor.”
Women suffering from such mistreatment should have the courage to stand
up against it. The society as a whole should stand with women facing such
torture and offer them their full support instead of ostracizing them.

In the current scenario marital rape can be only seen as rape which is legally
permissible that negates the element of consent from the woman. It is high
time that the judicial system in India makes laws criminalizing marital rape to
preserve the dignity of the women.

With respect to the above discussion, the following suggestions are made:

1) Marital rape should be recognized as an offence under the Indian

Penal Code.

2) The punishment for marital rape should be the same as the one
prescribed for rape under Section 376 of the Indian Penal Code.

3) The lack of resistance on the part of the wife should not serve as a
defence to the charge.

4) The legal position of marital rape should not only be recognized but
also clearly defined; it should form a valid ground for divorce for the wife.

5) Apart from judicial awakening, general awareness of such offence by

the citizens is also important.
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1. www.google.com
2. www.wikipedia.com
3. www.yahoo.com
4. www.lawctopus.com/academi
ke/marital-rape-a-crime-
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5. www.academia.edu