A Mixed Marriage and Marital Rape in the Imperial Capital

Mir Anwaruddin was born 18 March 1888, the son of Mir Serajudin Shabi Bahadur, district superintendent of the Imperial Police Service.Footnote 10 A resident of Madras and a Muslim, he traveled abroad to study, first in the United States and later in England. In 1912, Anwaruddin, having studied at Lincoln's Inn, obtained a Third Class pass in the examinations for Hindu and Mohamedan Law and, in January 1913, was called to the bar.Footnote 11 He followed the same educational path of many Indian students who came from prosperous families.

Anwar's troubles began shortly after his call to the bar, when he married. Ruby described the first few days of her married life to the Acton magistrate in lurid and shocking terms fraught with the specters of marital rape and sexual brutality. The young couple went to Brighton on their wedding trip a week after the marriage. According to Ruby, her new husband insisted on consummating the marriage immediately and over and over again for hours at a time, despite her protests. Ruby confided to the magistrates that she had promised her mother that the two would do nothing but kiss at first. Ruby described how Anwar, confronted with a reluctant bride, reacted by brandishing a razor and threatening suicide and also by physically restraining her so that he could insist on his marital rights. Ruby's wedding night was so traumatic to her that she summoned her mother to Brighton. Upon his mother-in-law's arrival, the bridegroom left his wife alone the second night. But he continued making his “brutal” demands the next night, after Ruby's mother returned home. The young wife detailed two nights of horror to the magistrates, telling them: “On 26th March he held me down and in spite of my appeals that I was suffering the greatest of agony he had no consideration for me.”Footnote 12 In reply to questions about why she would refuse her husband sexual relations, she explained: “I did not tell my husband it was impossible for him to have connexion [sic]. On the 24th March I did not tell him I had my courses and they would last for nine days.”Footnote 13

Despite this violence-filled honeymoon, Ruby returned to London with her husband, and she joined him in a rooming house for a few weeks. She recounted other instances of conflict, accusing her husband of pressuring her to leave him and earn money by prostitution and accusing him of outbursts of violent behavior that caused her much distress and some bruises, although she conceded that he had never struck her. Finally, Ruby pawned her possessions, left the room she shared with her husband, and returned to her parents on 3 May.Footnote 14

Mir Anwaruddin gave a very different account of these events. He denied using any violence toward his wife. He denied threatening to commit suicide. He claimed that he had respected her hesitancy about engaging in sexual relations and that they did not have intercourse until 1 April, almost two weeks after the wedding. Anwar described the final confrontation between the newlyweds in more prosaic terms: “On 3rd May my wife threw the wedding ring at me and said she wanted to leave me.”Footnote 15 After her return to their house, her parents refused to let him see her, and his father-in-law even went so far as to call two constables to make him leave. Anwar's response to questioning under cross-examination suggests the nature of the testimony that the magistrates heard from his wife: “I did not threaten to make my wife drink her own blood,” he declared, “I did not take out a Razor. I have never frightened her with a Razor.”Footnote 16 He made other denials: “I did not threaten to get a crowd round & kick her so that she could get a Divorce. I never told her to take off the clothes I had bought for her and wear the clothes she had before marriage. She did not on the 2nd May hold on to the bedstead and say ‘Have a little mercy for me.’ I have never called her a harlot.” He insisted that his wife was always perfectly healthy, claiming that he was the one who had become ill after she left him. In an admission later in his testimony that undermined the credibility of this complaint, he told the court that he sent “a telegram to my wife saying I was dying of appendicitis. I thought it would bring her home.”Footnote 17 But, sadly for the husband's hopes, it did not.

The testimony of the estranged spouses and their supporters occupied two days, 28 and 31 May. On Ruby's side, a doctor testified to the dire impact that the marriage had had on Ruby's health. Ruby's mother corroborated her daughter's testimony. On Anwar's side, the landlady at the boarding house where the young couple had briefly lived together made some very noncommittal observations about what she had seen, or rather what she had not seen. Naubat Rai, a friend who lived in the same rooming house, had served as a witness at the wedding and had accompanied the couple to Brighton. He told the magistrates about the couple's affectionate bearing toward one another. Both the landlady and the friend said that they did not see any evidence of violent behavior. The testimony of all these witnesses was brief, however, and lacked the emotional impact of the testimony of the contending spouses. The Acton magistrates reacted with horror to Ruby's account of her brief married life. Obviously appalled at the sexual torture endured by the young English wife at the hands of her Indian husband, they granted Ruby's petition for a separation, explaining, “A great responsibility is thrown on the Bench, although the story told us seems almost incredible and we have given weight to it all. We have come to the conclusion we must grant the petition. We hold that the various acts of the Defendant have had such an effect on the young wife that they amount to terrorism. His demeanour towards her has resulted in her being afraid of him and injured her health.”Footnote 18

The justices charged Mir Anwaruddin for the legal costs incurred by his wife, which amounted to £2.2.0., as well as court costs of 13/6, and they ordered him to pay his wife 30s. per week in maintenance. In the brief discussion of these financial arrangements, Ruby claimed that her husband enjoyed a total annual income of £500, which represented the allowance given to him by his father and what he could earn. Anwar, for his part, denied that he had any income at all, asserting that his father, displeased by his marriage, had stopped his allowance and that he was not working.Footnote 19 In making this claim of poverty and parental rejection, Anwar might have been trying to evade his financial responsibility, but it would not have been the first time that an indignant Indian father had cut off a son's allowance upon the occasion of an unsuitable marriage contracted without parental consent.Footnote 20

Whatever the actual facts might have been about Mir Anwaruddin's financial situation in that late spring of 1913, he probably enjoyed more resources and certainly had a greater knowledge of the law than many of the litigants who came before the magistrates. Within a month he had appealed to the justices of the Divorce Court. In June 1913, Sir Samuel Evans and Justice Bargrave Deane, the two judges of the Divorce Court who convened the Divisional Court that heard such appeals, considered his petition.Footnote 21 Magistrates granted thousands of separation and maintenance orders every year, and occasionally a dissatisfied litigant would appeal, a legal avenue provided for by section 11 of the 1895 Summary Jurisdiction (Married Women) Act. These appeals, although few in number, possess great intrinsic interest because the documentary record usually included a transcript of the original hearing.Footnote 22 The Divorce Court judges who heard these appeals insisted that unless supplied with the shorthand notes of the testimony heard by the magistrates, they could not carry out their duty to give a full review to the appealed cases.

After looking over the evidence, Evans and Deane agreed on granting the appeal and setting aside the order for maintenance made by the magistrates. Evans, speaking for the court, pointed out: “The parties had led a short married life of some bickering and misunderstanding.” The judges found “no corroboration of the wife's story.” Furthermore, Ruby's affectionate letters to her husband (mentioned in the newspaper coverage of the case but not described in the testimony before the Magistrates’ Court) after the acts of cruelty she alleged undermined her case.Footnote 23 Pointing to different evidence and raising different issues, the High Court judges reversed the decision of the local magistrates.

Their reaction might stem in part from the different mode in which they considered the evidence. The magistrates actually heard the testimony of the aggrieved parties; they actually saw Ruby Hudd and Mir Anwaruddin standing before them. Their brief explanation of their decision suggests that they were swept up in the emotion generated by Ruby's airing of her grievances against her husband. Her emotionally charged and graphic testimony called upon the court to protect Ruby, the young English wife, from the sexual predations of her erstwhile husband, a foreigner, a Muslim, and a man of color. Ruby's testimony stirred, and perhaps deliberately played upon, the fears of ungoverned sexuality associated with interracial marriage. Although Anwar's testimony admittedly generated some uncertainty about the rights and wrongs in the case, the magistrates concluded that their first duty must be to protect Ruby.

When the case came before the High Court, however, the judges considered the written record of the testimony.Footnote 24 The legal gaps in Ruby's case became more visible in the silence of the written word. Before the High Court, Mir Anwaruddin's status as a husband asserted itself, and the importance of proper procedure also commanded more attention. Questions about Ruby's behavior also emerged. Did Anwar's attempts to establish a conjugal sexual relationship actually amount to cruelty, much less the “persistent cruelty” required by law to justify a separation? By describing the conduct of the young couple as “bickering,” the High Court judges deflated the emotional stakes of a marital conflict probably given outsized significance by anxieties about interracial sexuality. In the view of Evans and Deane sitting on the High Court, Ruby did not embody white, female victimhood. Rather her recorded behavior seemed to them more to represent the immaturity of a young wife who failed to make the transition from her parents to her new husband, whose status as husband endowed him with a lawfully sanctioned expectation that his wife would at least acquiesce to sexual relations.

In August 1913, after Anwar's return to India, Ruby made another attempt to obtain a separation. This time she filed a suit for a judicial separation in the Divorce Court, alleging her husband's cruelty. Anwar sent instructions to object to these proceedings on the grounds that he was domiciled in India and so the English Divorce Court did not have jurisdiction to take any action with regard to his marriage. What had been his motivation in taking this action? Did he truly wish to preserve the marriage? Or did his anger express itself in opposing whatever Ruby did, no matter that doing so went against his own interest (a dynamic that sometimes gripped bitterly contested marital litigation)? Perhaps having second thoughts about the ramifications of enjoying another success in court or perhaps unwilling to proceed without being able to represent himself or to monitor proceedings personally, Anwar dropped this objection and returned to London to participate in the case. Once checked in her petition, however, Ruby did not continue with it. Consequently, the two remained legally married, despite their estrangement.Footnote 25

Mir Anwaruddin thus enjoyed an immediate success in his challenge of the separation and maintenance order granted to his wife, as the High Court disciplined the local justices for being so swayed by emotions that they compromised the rights of a husband. His victory shortly revealed itself as a pyrrhic one, however, as it left the discordant pair married to one another. The rest of the story adds further layers of complexity to its meaning, but the outcome of this first round of legal proceedings has considerable significance.

First, the documentation of the Magistrates’ Court decision and its subsequent reversal reveals much about the tensions raised by the presence of so many colonial subjects seeking an education in the imperial capital. The Anwaruddin case came before the Acton magistrates and the High Court justices in the midst of heightened concern about the growing presence of Indian students in English higher education, and Anwar's predicament gives us a glimpse of the lodging house milieu where students from the imperial periphery had to make lives for themselves while away from home. The road to a successful career in India often passed through England, where the study of law was the most popular choice among Indian students, including future eminent leaders of the new Indian nation, such as Mohandas Gandhi, Nehru, Jinnah, and Indira Gandhi.Footnote 26 But of course, not all the Indian students of law called to the bar in England later enjoyed the success of these nationalist leaders. As the number of Indian students in England increased in the years immediately before the First World War, they became the occasion for some anxiety. The plight of Indian students who found themselves destitute and stranded stimulated a range of concerns, and incidents of racial antagonism and the fear of mixed marriages fed more deep-seated tensions.Footnote 27 The personal tragedy of Mir Anwaruddin's marital entanglements expressed and compounded these tensions and anxieties.

A course of study in law or medicine might take several years, and students from India and Africa suffered from loneliness or homesickness, intensified by encounters with racial prejudice. Despite such hardships, the number of Indian students increased noticeably during the early twentieth century, reaching around 1,000 in 1909 and growing to almost 2,000 in 1927.Footnote 28 Although these numbers are small in the context of the total population of Great Britain, the growing population of south Asians among university students and students at medical schools and the Inns of Court showed up conspicuously in those elite, closed communities. Of Indian students studying in London, most were studying for the bar. In 1910, Lincoln's Inn alone admitted 186 Indian students, an especially large number for the prewar years, and Mir Anwaruddin would most probably have been among this group.Footnote 29 The growing presence of Indian students in English and Scottish universities came under increasing scrutiny during the early twentieth century. The government conducted two investigations of the situation, which produced the Lee Warner Report in 1909 and the Lytton Report in 1922. In addition, the India Office created the Indian Student Department in 1912.Footnote 30

Contemporary anecdotal evidence underlines the tensions and anxieties produced by the growing number of such students and graduates who elected to remain in England after completing their education. For instance, in 1913, the refusal of one of the assize circuits to admit an “Indian gentleman” to its bar mess caused indignant comment that extolled the imperial unity created by Indian and other colonial students studying at the Inns of Court and warned that professional qualifications ought to supersede color in English courts.Footnote 31 In 1919 the Lawrence Committee, appointed to investigate the 1914 implementation of legal aid to the poor, inquired about the many “black men” apparently taking advantage of opportunities to practice by signing up for poor persons cases. Adrian Hassart Short, the civil servant who managed the new office, revealed the nature of this concern with the tenor of his reply: “Yes, only unfortunately they had white names, and unless you saw them you could not tell. There, again, it is difficult to bar them—they are Barristers, and they are allowed to practice.”Footnote 32 Later in the 1920s, an anecdote about legal humorist Theobald Mathew recounted by Harold Laski for the entertainment of Oliver Wendell Holmes further illustrates the unease created by the presence of nonwhite students in the bastions of English higher education, especially the Inns of Court. Mathew, according to Laski, one day went to the Inner Temple for lunch and “found his usual table full of Hindus, negroes, Angloese and Chinese with one lone Englishman. Mathew walked up to him with outstretched hand saying ‘Dr. Livingstone, I presume?’”Footnote 33

The length of time required for a university or professional course of study increased the risk of romantic entanglements between these students and young Englishwomen. The specter of such mixed marriages thus further exacerbated these growing racial tensions. Sexuality across a racial divide, of course, had long featured as not only one of the perils but also one of the male privileges of empire. But, in the imperial context, interracial relationships usually meant the sexual access of European men to indigenous women. Although the fear that indigenous men might desire European women figured importantly in the discussion, few interracial couples took this form.Footnote 34 The Mir Anwaruddin case served as an important touchstone for these apprehensions. His marriage with Ruby Hudd and its subsequent failure appeared to confirm popular notions about foreign students victimizing naïve English girls who thus stood in need of protection.Footnote 35 Of course, such a vision, predicated as it was on clichés of both race and gender, could not capture the complexities of real-life relationships, and the number of problematic mixed marriages probably remained small in any case. Not all visiting students wished to marry outside their faith or their community.Footnote 36 And of those who did, some enjoyed happy and fruitful marriages, as in the case of the eminent jurist Syed Ameer Ali.Footnote 37

This case also highlights the tensions between the Magistrates’ Courts and the High Court with respect to the questions of how the law should protect husbands and wives from one another. The Acton magistrates first acted to protect Ruby, while the Divorce Court judges later acted to protect Anwar's position. By defining behavior that amounted to marital rape as cruelty, the magistrates could rescue Ruby from her ill-advised union. Marital rape, of course, was not recognized as a criminal offense until late in the twentieth century.Footnote 38 Nevertheless, sexual practices imposed by husbands upon unwilling wives could be construed as cruelty by both the Magistrates’ Courts and the Divorce Court.Footnote 39 Such a stance, however, did not turn on a wife's consent but rather on the court's understanding of the boundaries of normal sexuality, beyond which a reasonable husband should not press. In this particular instance, the Divorce Court would not countenance the conflation of marital rape and cruelty, which might in the future stand as a threat to any husband's claims to sexual access to his wife, since norms of precedent meant that such a finding could not be limited to interracial marriages.

Although still married to Anwar after the initial round of litigation, Ruby remained in England when her estranged husband returned to his homeland. The two could have pursued separate lives, even marrying again, with very little chance that their previous undissolved marriage would come to light. But Anwar did not give up on legal avenues to provide a resolution to his irregular and unsatisfactory marital status. Indeed, he did not even stay in India. So the story does not end here, and Justice Bargrave Deane, in particular, had not seen the end of Mir Anwaruddin's appearances before his bar.

Intermission in Madras: The Privileges of a Husband under Islam

In the next phase of these marital struggles, Anwaruddin sought legal redress from the judicial venues available to him in Madras, his home city. First, he turned to the local Civil Court in Madras, which heard his petition for restitution for conjugal rights on 8 November and 8 December 1913. On 15 December, the court issued a decree of restitution of conjugal rights, ordering Ruby to return to her husband and take up residence with him. City Civil Judge C. R. Thiruvenkatachariar came to this conclusion after making the following points: (1) Mir Anwaruddin's legal domicile had been and continued to be Madras, and the petitioner's time spent studying law in England had not altered his legal domicile; (2) the marriage between Ruby Hudd and Mir Anwaruddin was a valid marriage, and no party challenged that validity; and (3) “the effect of the marriage is to render the domicile of the Defendant the same as that of her husband.”Footnote 40 This line of reasoning reflected generally accepted thinking about marriage and domicile in English law, which identified a wife's domicile with that of her husband. In the view of the judge, these circumstances, taken together, conferred jurisdiction over the case on the Madras court, the domicile of the husband, and justified issuing the order to Ruby to carry out her duty to live with her husband.

This court action and its outcome expressed the contradictions and complications of a legal system partly predicated on English law and practice and partly reliant on indigenous communities to govern themselves. The legal action of restitution of conjugal rights, where a court ordered an absent spouse to return to the conjugal home, had been introduced into Indian law by the courts created by the English in their reorganization of the Indian justice system during the 1860s.Footnote 41 Indeed, one of the most famous and contentious of episodes in Anglo-Indian legal practice revolved around a case of restitution of conjugal rights, the Ruthkambi (Rukhmabai) case, first heard by the Bombay High Court in 1884.Footnote 42 Typically, litigants did not seek a restitution of conjugal rights in the expectation that an estranged spouse would actually return home. In England, when an errant spouse refused to obey such an order, he or she laid the groundwork for charges of desertion that could be used in further litigation for a separation or divorce or a financial settlement. But in India, the legal apparatus for divorce left those on the peripheries of the major religious communities, whether Hindu, Muslim, or Christian, without a venue to pursue marital litigation, as Hindus did not recognize divorce, Muslims could have recourse to private divorce within their communities, and Christian couples domiciled in India could have recourse to district courts under the 1869 Indian Divorce Act. But the marriage between Mir Anwaruddin, a Muslim, and Ruby Hudd, a Christian, did not fall into any of these categories.Footnote 43 Anwaruddin consequently enjoyed another mixed victory because following English law and legal practices left him in an English-constructed legal system that provided no venue for him to proceed in further litigation as defined by the terms of the 1869 Indian Divorce Act.Footnote 44 Not surprisingly, Ruby ignored this order to leave her home with her parents in Streatham to join her husband in Madras, and Anwar had no venue in Madras to pursue further litigation to free himself from her.

Unable to get rid of his unwilling wife in an Indian civil court, Anwar returned to England in order to participate in his wife's case against him in the English Divorce Court. When that case failed to reach fruition, Anwar, as a Muslim, turned to Islamic personal law and its provision for the power of unilateral divorce pronounced by the husband. On 27 August 1915, he pronounced a “Talak,” which divorced himself from his wife. Affidavits he submitted in later litigation in England explained that under Mohammedan law a man could marry up to four wives and could divorce himself from any of them at will and without giving any reason. The divorce could be accomplished without reference to any court, took effect immediately, and was irrevocable. As Anwar later claimed, the “Talak” “applies equally to a Christian as to a Mohammedan wife and that according to the Mohammedan law administered in Courts of Justice in India such a declaration of divorcement pronounced by a Mohammedan husband is valid for all purposes.”Footnote 45 And so, following this logic, in Madras at least, Mir Anwaruddin and Ruby Hudd were no longer husband and wife. Again, this might have brought the story of Anwar and Ruby to an end, had he contented himself with returning to Madras and rebuilding his life there. But Anwar remained in England, and while resident there it was by no means clear whether or not he had lawfully become single again in the eyes of English law. So he once again went to court seeking a definitive answer to this question, motivated by his wish to marry again in England.

Islamic Divorce and Christian Marriage in the Imperial Capital

Mir Anwaruddin himself must have recognized doubts about his status in England because in 1916 he petitioned the Divorce Court there for a full divorce on the grounds of his wife's refusal to abide by the order for restitution of conjugal rights issued by the court in Madras and her “misconduct.” This action represented something of an about-face for him, as he had contested the jurisdiction of the Divorce Court over his marriage in 1913. If he had been correct in 1913, a view that gave the court in Madras the jurisdiction to issue the order of restitution, then the London court did not have the jurisdiction to hear his case in 1916. The court's Registrar accordingly rejected the petition, on the grounds that the English Divorce Court did not have jurisdiction over Anwar's marriage because he, and consequently his wife, had an Indian domicile.

Anwaruddin appealed the Registrar's decision, and Justice Bargrave Deane of the Divorce Court gave him a hearing on that question. Deane, who must have remembered the Anwaruddins from the appeal case that had come before him three years before, expressed considerable sympathy for the husband's predicament: “He [Anwaruddin] was anxious that the marriage should be continued. He has done his best. When he found that she absolutely refused to go with him to his own country where he would have to live as a married man he was left in this very awkward position.” Deane, after considering the affidavits describing Anwar's situation and the Islamic procedure of talaq, voiced his view that Anwaruddin had only done what he had to do and that he had effectively ended the marriage. Deane concluded: “First of all that if there is a marriage this court has no jurisdiction to dissolve it, and secondly, that the petitioner has satisfied me, that there is no subsisting marriage, that which did take place having been dissolved by law by the parties.”Footnote 46 Importantly, Deane's view recognized the validity of the talaq as effectively ending the marriage on the grounds that it was recognized as having that power according to the law and legal practices of the husband's domicile in India, even though when Anwar enacted the talaq he had it witnessed at law offices located in Walter House on the Strand in London.Footnote 47

Anwaruddin must have been very gratified by this outcome, especially as he intended to marry again. And again he had chosen an Englishwoman to be his wife. He went to the Register Office in Hammersmith to obtain a marriage license, scrupulously informing the office of his circumstances and previous marriage. Confronted with Anwaruddin's questionable status as a single man eligible to marry, the Registrar refused to issue a marriage license to him on the grounds that he already had a wife and could not legally marry another one. Anwaruddin's punctilious attention to legal procedure led him away from opportunities to take advantage of gaps in the application of the law. In the London metropolitan area, the volume of business was so great that urban anonymity might well have protected him if he had taken advantage of it in order to obtain a marriage license without acquainting the Registrar with his past history. His subsequent marriage would have had a legal shadow, which, if exposed, might have called into question the legitimacy of any children of the marriage, and Anwaruddin apparently was not willing to run that risk. Instead he sought public vindication of his position. Anwaruddin challenged the decision of the Hammersmith Registrar by writing to the Registrar General, forwarding to him the judgments of the Civil Court in Madras, the declaration of divorce, and the recent decision of the Divorce Court in his case. The Registrar General's office immediately consulted with the law officers of the government, as Anwaruddin had made it clear that he would go to court to contest the refusal of his request for a marriage license.Footnote 48

The Treasury's law officers strongly supported the Registrar's decision to deny Anwaruddin a marriage license. Their opinion underscored two points. First, and crucially, they worried about recognizing the talaq, the Islamic notice of divorcement, as a full divorce of a marriage originally celebrated in England. In order to challenge the validity of the talaq, they drew a distinction between a divorce pronounced by a legal tribunal and one simply pronounced by one of the parties. Their discussion of the issue underscored their anxieties about the ramifications of recognizing the authority of Islamic practice over an ostensibly Christian marriage originally celebrated in England, “If such a notice is sufficient, there is no reason why a Mohammedan domiciled in India should not contract a series of ‘marriages’ with English women in this country, dissolving each of them by notice as soon as he thinks fit; and we do not think that this should be assumed to be the law unless and until it has been so decided by the English Courts after a full argument.” Although the distinction made here between divorces enacted by a judicial process as opposed to divorce consequent on some nonjudicial process does raise important legal issues, the tenor of the discussion makes clear that the marriages of Muslim men to Englishwomen lent a special urgency to the discussion of legal principle.Footnote 49

The opinion also had to address Bargrave Deane's recognition of the talaq, which contradicted the Treasury view of the issues. The Treasury pointed out that Deane had not heard both sides in argument before reaching his decision and so his ruling could not have much standing for interpreting the law. Recognizing the force of counterarguments and looking ahead to the litigation necessary to decide the issue, the law officers warned: “If the ultimate decision should be in favour of the applicant, the question may arise whether legislation is desirable.”Footnote 50 This position expressed an apprehension that English law might be compelled to incorporate Islamic law into judicial practices in England, as well as apprehensions about the vulnerability of Englishwomen, who, after marriage to Indian and Islamic men, lost the protection that English law offered to monogamous marriage.

Anwaruddin's attempt to establish his right to marry a second time posed a significant dilemma for those representing the government's point of view. The principle that domicile defined local jurisdiction raised by Anwaruddin in defense of his position commanded great respect in the English legal tradition, especially in matters of family law. In this view, the domicile of the husband governed the domicile of the wife, despite the difficulties this created for wives, and the government did not wish to undermine this principle. Thus coverture continued to define a married woman's domicile until late in the twentieth century.Footnote 51 In the hearings that considered Anwaruddin's challenge to the decision of the Registrar to deny him a marriage license, the government's representatives tried to maintain this principle of domicile at the same time that they defended the Registrar by falling back on a definition of marriage that depended on the special status accorded to the monogamous couple, thus excluding the polygamous practices sanctioned by Islamic law.

Anwaruddin's case came before the Lord Chief Justice, Lord Reading, and Justices Darling and Bray in hearings that occupied two days, 22 August and 21 September. On the first day of arguments, the government's representative appearing on behalf of the Superintendent Registrar of Marriages of Hammersmith argued that, following precedents settled during the nineteenth century, English law did not recognize an Islamic marriage as a marriage, due to its polygamous nature.Footnote 52 The lawyer representing the Hammersmith Registrar asserted that affirming Anwaruddin's Islamic divorce by issuing him a marriage certificate would be tantamount to accepting Islamic marriage practices and thus require the issuance of additional marriage certificates for additional, polygamous marriages. He warned against “the extraordinary consequences that would follow if a view against me were taken in this case—that any Musselman law student here might, in the course of his three years, marry as many wives as he pleased.”Footnote 53 With arguments incomplete at the end of the day, the hearing continued on 21 September.

When the panel reconvened, the Solicitor General himself, Sir George Cave, took up the task of representing the government's view, a sign of the importance with which the legal establishment regarded the case. The issues at stake received an exhaustive review; the transcript of that day's proceedings runs to over eighty pages. Cave underlined and elaborated on the points that had already been made. English courts recognized the powers of another “Court of competent jurisdiction” to terminate a marriage, he said, but not “the power to dissolve at the will of the husband or by mutual consent.” That latter power attached to a “Mohammedan marriage,” which English law would not recognize as a marriage. Cave explained to the judicial panel:

Cave argued that Ruby Hudd had not agreed to those conditions when she married Mir Anwaruddin. Cave set out an ingenious argument in defense of the action taken by the Hammersmith Registrar. If the original marriage was good, then the talaq was not, and the Registrar had taken the correct action in refusing to issue a marriage certificate in view of the previously existing marriage. On the other hand, if the talaq was good, then the new marriage license Anwar sought would be the occasion for an additional “marriage” not recognized by English law. And so, Cave concluded, under either presumption about the validity of the talaq, the Hammersmith Registrar had done the right thing in refusing to issue the marriage certificate in view of the invalidity of the proposed marriage.

Mir Anwaruddin himself appeared before the judges in his barrister's robes and argued his own case, “with great ability” according to officials. In this case, as in the earlier case before the Acton magistrates, the transcript preserves an echo of Anwaruddin's voice. He contended first that English law did not forbid mixed marriages, and that he had the right to marry anyone he pleased of whatever nationality, and the Registrar had no right to deny him a license to do so.Footnote 54 Anwaruddin pointed to the racist undertones of the legal arguments advanced by the Lord Chief Justice, declaring: “It is just because it happens to be an English woman he has exercised his discretion because I am a coloured man.” Justice Darling would not accept this assertion, pointing out that Anwaruddin himself had acquainted the Registrar with his circumstances and the existence of the previous marriage and so created the occasion for this extraordinary hearing. This retort, although it articulated an important question about Anwaruddin's motivation in bringing his ambiguous status into the court's purview, did not actually refute his larger point. Anwaruddin's rhetorical stance incorporated the English definition of marriage into his arguments as he over and over again defensively took upon himself the description of laws of marriage outside the English tradition as “uncivilized.” This seemingly calculated self-humiliation so rankled Justice Darling that he finally intervened in the argument, saying: “there is no need to call it [Mohammedan law] uncivilized. We are perfectly well aware that the civilization of India is older than the civilization of England.”

Mir Anwaruddin's rhetorical submission to English law served as a foundation for his demands. He argued that when English courts superseded Mughal courts after India was incorporated into the English empire, the crown had made a commitment to recognize the local laws with respect to marriage. Following from this premise, if English law adhered to its own rules of domicile, and if English rule recognized the authority of the application of local marriage law in India, then Ruby Hudd had made herself subject to that law by marrying him. Anwaruddin placed his claim in the larger context of imperial obligations:

This stance drew together and underlined the promises made and not kept after the British took over direct rule of India in 1858. He spoke at a time when the war effort continued to make extraordinary demands on India and Indians. India and many Indians had responded to the outbreak of war in 1914 with expressions of enthusiastic loyalty to the empire and to England's commitment to war against Germany. But by August 1916, at the time of Anwaruddin's appearance representing himself in the court, India's loyalty had undergone much strain as Indian troops endured terrible hardship on the western front, the expedition to Mesopotamia collapsed in disarray with the surrender of Kut to the Turks in the spring of 1916, and wounded Indian soldiers experienced racism and discrimination in the hospitals set aside for their treatment in England.Footnote 55 Neither Anwaruddin nor the panel of judges made direct reference to these developments, but the political context of the hearing added depth and resonance to his words. In addition, in an even more pointed turn of phrase, “scraps of paper,” Anwaruddin recalled the famous words of the German Chancellor Bethman Hollweg's dismissal of Belgium neutrality as a mere “scrap of paper”—a violation of international norms that had proved decisive in bringing Britain into the war against Germany in the first place. Anwaruddin's speech thus linked Britain's betrayal of its obligations to India with Germany's betrayal of international law in its attack on Belgium—a betrayal that the judges might at least partially mitigate by granting Anwaruddin's appeal.

The discussion also explored Anwaruddin's personal dilemma. The presiding justices asked why he wished to have an English marriage license when he could marry under Mohammedan law. In reply, Anwaruddin said he wanted to protect his children from the illegitimate status they would consequently have under English law and to protect himself from charges of bigamy. Anwaruddin tried to enter into the proceedings an affidavit from his proposed second wife attesting to her understanding of the consequences of marrying him. In rejecting this request, Justice Darling reassured Anwaruddin about his prospects for future happiness, saying: “I should think, knowing the little I have picked up in the Courts of Justice, if she really likes you, she will marry you and take all the consequences. That is what women commonly do.” Anwaruddin, in explaining his wish to marry an Englishwoman in England a second time, looked back with some wistfulness on his first marriage:

After a discussion on the merits of the case fraught with these racial, cultural, imperial, and gender tensions, the arguments drew to a close at the end of the day. Anwaruddin and the justices then returned to the central, institutional, but more prosaic, cause of his marital difficulties; that is, the absence of a court to serve him and people in like circumstances in his home jurisdiction. As things stood, no provision had been made to adjudicate conflicts within mixed marriages. Anwaruddin's lack of judicial options, which had led him to seek a talaq in the first place, pointed to a gap in the institutional apparatus governing marriage and divorce in India that could only be remedied by additional legislation amending the 1869 Indian Divorce Act.Footnote 57 Justice Darling rebuked Anwaruddin on this point: “You ought not to say to us: ‘The King made a promise to India, and we look to the Judge to keep it’, There are many English people who are suffering under grievances because a Statute has not dealt with every conceivable point.” When Anwaruddin replied that this view of the matter did not give him the help he needed, Darling continued: “I can only say you are in the same case as other people, where the Legislature has not thought of every conceivable thing. It may be that you should have a remedy given you which has not yet been given; but we cannot give it simply because we think the legislature ought to have given it.”Footnote 58 The court formally delivered its judgment in November, upholding the action of the Hammersmith Registrar in rejecting Anwaruddin's application for a marriage certificate. This decision confirmed Anwaruddin's marital limbo.Footnote 59

Anwaruddin then appealed from the King's Bench Divisional Court to the Court of Appeal, but the decision of the Appeal Court, issued 23 November, upheld the lower court. Justices Eady, Bankes, and Lawrence all agreed that Islamic practices and law could not end a marriage contracted in England under a law governing Christian marriages.Footnote 60 In 1913 the Divorce Court judges had overturned the ruling of the Acton magistrates separating Ruby Hudd and Mir Anwaruddin. Although race and sexuality clearly formed a subtext for the magistrates’ decision, the Divorce Court judges overlooked these aspects of the case in order to uphold the basic tenets of English marriage. But in 1916, anxieties about polygamy reinforced legal officials’ wish to defend English marriage as defined by English law. These two concerns, joined together, animated a solid juridical consensus that doomed Anwaruddin's case, however ably he might have presented it and whatever sympathy some of the judges and the officials might have felt for his untenable situation.

Anwaruddin tried to appeal his case to the House of Lords, but this was not allowed because of the extreme unlikelihood of his success. He did not have the financial resources to pay for the costs he had already incurred, but officials decided not to pursue costs against him because they thought he did not have the money.Footnote 61 Anwaruddin went on to marry his English fiancée, Violet Louisa Ling, in a mosque. Early in 1917, they had a child, registered under the name Alan Mir Anwaruddin.Footnote 62 But Mir Anwaruddin's fears about the child being regarded as illegitimate in the eyes of the English public proved prescient, and he would shortly become embroiled in additional litigation about his family life.

Afterwords: Libel, Perjury, and Words of Warning

Despite the birth of a son under these inauspicious circumstances, Mir Anwaruddin's domestic life might have unfolded in the way suggested to him by Lord Darling if he had been able to enjoy an ordinary life in private, outside public scrutiny and notoriety. Unfortunately for his domestic happiness, his public behavior caught the attention of the tabloid press. In particular, Anwaruddin found himself featured in the “Candid Communication” column of Horatio Bottomley's John Bull. During the war, Bottomley directed the attention of the large readership of his newspaper to anyone or anything that, in his view, impeded the war effort.Footnote 63 Anwaruddin, who had named to authorities restaurants that illegally served alcohol to underage soldiers, became a target of John Bull, which, with its aggressively patriotic stance, regarded these interventions with great suspicion.Footnote 64John Bull then took a closer look at Anwaruddin's career and subjected his marital and legal adventures to a lengthy exposé published in November 1917.Footnote 65 Bottomley drew a lesson from Anwaruddin's story, warning Englishwomen about the dangers of a mixed marriage, especially with a Muslim man who could marry multiple wives and divorce a wife at will. Of course, judges and officials had already made this point, but only to one another and not to the much larger audience commanded by Horatio Bottomley.

Anwaruddin responded to Bottomley's attack on his personal life by suing John Bull for libel, representing himself, as he had done in his previous litigations. Horatio Bottomley, relishing the challenge, promised to represent himself as well.Footnote 66 Anwaruddin's legal qualifications, although they had earlier impressed government officials, did him little good against Bottomley, a skilled litigator with much experience and a record of success in defending his paper against libel actions.Footnote 67 Bottomley, who again won his case before the jury, also proved more ruthless than the government lawyers Anwaruddin had faced two years earlier. Anwaruddin took the stand, opening himself to Bottomley's cross-examination. Under Bottomley's questioning, Anwaruddin foolishly denied that he knew Violet Ling and her son, which was obviously untrue. He later claimed that he had refused to recognize references to Violet as a single woman when he believed that she was his lawful wife.Footnote 68 But Bottomley did not stop with his victory in court. Another warning against mixed marriages appeared in John Bull coupled with a notice that Bottomley would forward court papers to the attention of the public prosecutor and that Justice Darling (a man who often figured positively in John Bull) would bring the case involving the perjury of a qualified barrister to the attention of the Bench.Footnote 69 So, not only did Anwaruddin lose his libel action, but he also, as a consequence of this testimony, found himself charged with perjury in May 1918, and he faced the possibility of disbarment.Footnote 70

Anwaruddin's perjury case came before the Bow Street Police Court at the end of May, and Violet Ling testified to the magistrate, Sir John Dickinson, about the development of her relationship with Anwaruddin. She told Sir John that she had met Anwaruddin in 1915, that he had asked her to stay with him, and that she had borne his child, Alan Mir Anwaruddin, in early 1917. He sent her money for the child's support and “affectionate letters.” She also testified that after he lost the libel case he “asked her not to give the police any information.” The Director of Public Prosecutions, Sir Archibald Bodkin, explained to the magistrate that the charge of perjury against Anwaruddin was based on his denial that he signed or sent a “letter of confession” to his wife and on his denial of having fathered a child with “Miss L” or having had contact with her before 1916.Footnote 71 The contradictions appeared obvious, and so, after hearing both sides, Sir John committed Anwaruddin for trial.Footnote 72

Anwaruddin's trial took place before Justice Coleridge at the Central Criminal Court at the end of June 1918. The perjury charges involved two instances of alleged misrepresentation on his part. First, he denied that he had sent and signed a letter to his estranged wife confessing his wrongdoings during their marriage and asking her forgiveness, asserting that he had never seen this letter before the hearing the previous February.Footnote 73 Second, he explained that in refusing to answer questions about Miss Ling, he was objecting to her being identified with her maiden name, since he held that she was his wife according to Mohammedan law. Anwaruddin said he did not intend to deceive the jury and complained of the unsympathetic treatment he had received at the hands of the High Court in his case challenging the decision of the Hammersmith Register Office to refuse to issue him a marriage license. With this, Anwaruddin clearly lost the sympathy of the judge hearing the case, who “observed that he had read the whole of the shorthand notes, and he could not see one syllable to justify the defendant's complaint as to his treatment in the High Court.”Footnote 74 After another day of testimony and argument, Anwaruddin was convicted of perjury and sentenced to six months imprisonment. Bottomley crowed in triumph: “So this unworthy son of India has met with his deserts for the lies he told.”Footnote 75

Anwaruddin appealed this result, but he received an even less sympathetic hearing in the Court of Criminal Appeal, presided over by Justices Avory, Rowlatt, and Shearman. Anwaruddin had finally given up his efforts to serve as his own lawyer, and his counsel attempted to argue that the questions put to him by Bottomley in the original libel case were not germane to the issue at trial. They also repeated Anwaruddin's position that he refused to recognize a reference to Violet Ling by her maiden name since he regarded her as his wife according to Islamic law. The panel of judges rejected both arguments, and on the second argument, Justice Rowlett observed indignantly: “Mahomedan divorces in this country cannot be put up with if they are going to lead to the ensnaring of English girls.”Footnote 76 The fear of irregular marriages, interracial and polygamous, thus animated a consensus that stretched from top to bottom, from the High Court to the court of popular opinion. This consensus had the practical effect of maintaining the marriage tie between Ruby Hudd and Mir Anwaruddin in order to prevent Anwaruddin from marrying again.

The litigation surrounding Anwaruddin's marriages added to a more general alarm among authorities about mixed marriages, leading to a strengthening of the impediments to marriages between Englishwomen and Asian or African men in England. In May 1913, the India Office issued a circular for distribution to Register Offices to inform Englishwomen contemplating marriage with Hindu or Islamic men of the legal consequences of such marriages.Footnote 77 The timing of this circular, coming as it did just as the Anwaruddin marriage broke down, nevertheless could not have been a direct response to any of that litigation because Anwar's separation from Ruby was not actually heard by the magistrates until the end of May 1913. However, in July 1916, the same month that Anwaruddin went to the Hammersmith Register Office for a marriage license, the General Register Office issued a further directive requiring all Register offices to report any requests for marriage licenses for a marriage of any men who were “foreigners, Indians, Egyptians and Negroes” and wait for instructions before taking any action. The file of the Anwaruddin case preserved among the papers of the Treasury Solicitor's Office contains a copy of this memorandum authorizing the issuance of these instructions.Footnote 78

The Anwaruddin litigation also inspired commentary by learned experts in Indian Law. In 1917, Sir Ernest John Trevelyan published a brief essay in the Journal of Comparative Legislation and International Law on “Marriages between English Women and Natives of British India.”Footnote 79 Trevelyan, a member of a family famous for its public service to India, had served as a judge in the High Court of Calcutta from 1885 to 1896 and, from 1900, as a Reader in Indian Law at Oxford University.Footnote 80 Trevelyan's discussion of the issues raised by such marriages celebrated in England focused on their validity and the difficulty of dissolving such a marriage by the Indian husband, because no venue had the power to dissolve such a marriage in India, and an Indian domicile, which Indian students would retain during their English sojourn, precluded recourse to the English Divorce Court. Trevelyan made explicit reference to the Anwaruddin case in the course of his discussion, which purported to limit itself strictly to legal issues and to eschew a discussion of the “propriety” of mixed marriages. Trevelyan, however, could not refrain from observing that, “in the majority of cases such alliances must lead to unhappiness. The views of the East and of the West differ considerably as to the meaning of the marriage relationship, and as to the position of women in Society. Differences of religion, of habits of life, and of education prevent the complete union which is necessary for happiness in the married state. Both parties to the union are disappointed, even when there has been no deceit.”Footnote 81 Trevelyan concluded his discussion with a call for further legislation to mitigate the hardships of those Indian husbands, who, like Anwaruddin, found themselves tied to unsatisfactory wives with no official and lawful recourse to bring the marriage to an end. Trevelyan thus combined a view that dichotomized marriage in the “West” as opposed to marriage in the “East” with a measure of sympathy for the plight of husbands, even “Eastern” husbands, unable to rid themselves of their wives.

The next year, on 12 February 1918, just as Anwaruddin's unsuccessful libel action was drawing to a close, Sir Frederick Robertson gave a lecture in Lincoln's Inn Old Hall to students of the four Inns of Court on “The Relations between the English Law and the Personal law of Indians in England with Special Reference to the Marriage Law.”Footnote 82 Robertson, speaking to students where Anwaruddin himself had studied only a few years before, gave an authoritative and careful discussion of the law. Later published in abridged form, Robertson's lecture both educated and warned. Robertson refrained from discussing reforms or improvements in the law, which “would open up too many controversial points.” Rather he sought to delineate the law as it stood as clearly as possible in order that “as far as may be, Indian students and others may be able to judge how they stand in this connection.”Footnote 83 Their position, as Robertson outlined it, was a perilous one. Robertson concluded, “There can be no doubt that any one, be he Hindu or Mohammedan, who marries an English woman before an English public officer in England, and then returns to India, and with this monogamous marriage still standing, marries another wife according to Hindu or Mohammedan rites, runs the gravest risks of a prosecution for bigamy, while at the same time he has put himself into the position of being unable to dissolve the marriage.”Footnote 84 Robertson elaborated the legal basis for this marital trap at greater length than had Trevelyan, and, given the circumstances, the timing, and the audience, his words stood as unmistakable warning. Marriage between an Indian man and an Englishwoman meant personal disaster for both parties, a disaster from which the law as it stood could not extricate them, as the Anwaruddin case proved.

Conclusion

The English courts thus eventually swallowed up Mir Anwaruddin, but for five years, between 1913 and 1918, his troubled private life and his persistent recourse to litigation engaged various courts from the lowest to the highest levels. Both the litigation directed against him and the litigation initiated by him required judges of the various courts in which he appeared to consider the legal definition of marriage in an imperial context and to confront the issue of marriages between Englishwomen and colonial subjects of color and of different faiths.Footnote 85 These episodes resonated with significance not just for Anwaruddin himself, but also for those situated in like circumstances, as well as for the complexities of adjudicating issues of marriage and divorce in an imperial and then, later in the twentieth century, a transnational context.

The historical record does not provide any direct revelations of Mir Anwaruddin's motives and feelings in carrying on his legal battles. Nevertheless, the courtroom debates certainly imply an important dynamic connecting legal status and individual identity, suggesting the dangers that can arise when the two diverge. Anwaruddin's explanation for his wish to marry an English girl, on one level, resonates with Frantz Fanon's discussion of interracial marriage as a path to whiteness.Footnote 86 On another level, his words recapitulate the plight of many other people who, trapped in one unhappy marriage, sought happiness in another marriage. Anwar's quest for an official recognition that Violet and not Ruby was his wife provided the occasion for his fine words about the imperial order and its responsibilities to all those who came under its purview. Seeking this recognition exposed the tension between Anwaruddin's identity as an Indian and a Muslim and his overlapping identity as a subject of the British Empire. Anwaruddin apparently wished to assert both identities. He certainly wished access to both English law and Indian personal law, but English authorities regarded the two systems as mutually exclusive, at least with regard to marriage and divorce in England itself. Such a wish would explain Anwaruddin's insistence on proper legal form, which clashed with the efforts of English judges, especially Lord Darling, to shift him out of the formal judicial process. Anwaruddin brought up important and vexing issues, but if he had just been content to live a discreet, if ambiguous and perhaps bigamous, life, then the government and the judges would not have had to deal with them.

Two factors together doomed his efforts. First, the pervasive fear of and hostility toward mixed marriages animated a concerted effort to contain the ramifications that might flow from recognizing the self-divorce Anwaruddin enacted. The threat of interracial sexual relationships combined with alarm over the possibility of extending legal protection to polygamous marriages to outweigh the traditional recognition of domicile as a governing rule of marital litigation. This rejection of domicile made the Anwaruddin case appear anomalous to some later legal authorities.Footnote 87 Second, the British had not codified a comprehensive imperial legal apparatus, and so Anwaruddin's case did not fall within any appropriate jurisdiction. If Anwaruddin had been able to take advantage of a local forum with full powers to address his case in Madras, he would not have had to fall back upon Islamic self-divorce to rid himself of his estranged wife. Failure to provide such a forum, a failure recognized by the judges themselves and legal authorities such as Trevelyan and Robertson, meant that Anwaruddin brought his case back to the imperial capital where London courts had to fight off his efforts to force them to give formal and direct recognition of a talaq.

The example of another, similarly situated husband, F. T. Wills, who did have access to a local jurisdiction, points to the extent to which Anwaruddin's dilemma stemmed from the lack of systematization in the legal apparatus governing the empire. This case did not enter English courts at all, but it came to the attention of the Colonial Office in 1914, when officials considered the case of Wills, a medical officer in British Guiana, who had been divorced by his wife for adultery in British Guiana. Wills, a man of African descent, had attended medical school in Edinburgh, where he had met and married his Scottish wife in 1895. In 1914, during a divorce action brought against him by his wife, he admitted to committing adultery with his wife's maid ten years earlier, an admission that formed the basis of her divorce suit against him. The judge accepted this evidence, although many in the local community thought the evidence had been contrived collusively in order to obtain a divorce by that time desired by both spouses. The case reached the Colonial Office for consideration because one of Wills's superiors, C. C. Clements, had proposed disciplining Wills for creating a public scandal. But the Colonial Office thought it best to leave well enough alone, the reviewing official observing: “This adultery may very likely have been quite fictitious, and alleged merely for the laudable purpose of dissolving a marriage between a negro and a white woman which appears to have become intolerable to both. Note the narrow conventionalism of Mr. Clements which would seek to make the dissolution of such a marriage impracticable.”Footnote 88

Wills enjoyed an important legal advantage over Anwaruddin. He had access to a local court with complete jurisdiction over the matter. And, although his case, if examined closely, might have been flawed by some irregularity of evidence, his case did not raise issues with ramifications for the legal framework of marriage and divorce in England, so no purpose would have been served either by obstructing the divorce or by punishing Wills, especially since the local jurisdiction served to dissolve the mixed-race union.

Anwaruddin's ultimately unsuccessful assertion of his claims features several key ambiguities. Anwaruddin used English law to defy English authority. He stood before three justices of the High Court, wearing his barrister's robes, to argue that his rights under English law in England or India included his power to exercise the Islamic tradition of personal divorce in order to marry an Englishwoman. Even though the legal system ultimately thwarted him, Anwaruddin's own actions insured that his story would be remembered. He alerted the Hammersmith Registrar about his earlier marriage and the judicial processes in Madras that he claimed brought that marriage to an end. He provided government legal officials with the legal documents from his litigation in Madras. He contracted to pay for the preparation of the transcripts of his hearing before the High Court in the Hammersmith case. Treasury officials, a group not noted for their softheartedness in dealing with those who incurred government expense, did not press him for payment in light of his evident poverty, and the importance of the case merited the preservation of the records. The transcript of the separation case before the Acton magistrates was preserved under the formal application of a rule of practice adopted by the Divorce Court. So Anwaruddin, by virtue of his insistence on telling his own story, made his mark in the imperial archive, which, like the imperial legal system, lacked a centralized codification.Footnote 89

Finally, consensus about the horrors of mixed marriages and the prospect of Englishwomen ensnared and deprived of their English citizenship status by nonwhite and non-Christian men served as the systematizing function that ultimately defeated Anwaruddin. His predicament did not, however, meet unmitigated hostility, and Justice Bargrave Deane of the Divorce Court in particular heard Anwaruddin's side of the story with considerable sympathy. The prospect of a wife defying her husband's lawful sexual demands interrupted and complicated the judicial consensus, but in the end Anwaruddin's status as a non-Christian, a non-European, a nonwhite trumped his status as a husband.