In 1810, the case of Gobind v. Oodaiseen was reviewed by the Nizamut Adalat, the superior criminal court of reference and appeal in colonial Bengal. The case involved a young victim, nine-year-old Mussummaut Mahranee, who claimed that she was herding her father's sheep when defendant Oodaiseen began scolding her for destroying his corn crop. According to Mahranee, Oodaiseen grabbed her, carried her into a neighboring field, and raped her. He prevented her from crying out by grasping her throat and smothering her face with her clothes. Mahranee's statement was corroborated by several witnesses, one of whom testified that he heard her screams and ran over to find her “lying on the ground almost senseless; her clothes thrown aside from her body; and her limbs covered with blood. He at the same time saw the prisoner going off from the field.” Other witnesses saw Mahranee return home in excruciating pain with copious amounts of blood flowing from her vagina. The chumarin (midwife) who was summoned to perform a physical examination described Mahranee's wounds as necessarily resulting from a sexual assault. Although there was no full legal proof of guilt under Islamic law, the Islamic law officers decided that, based on the strong circumstantial evidence, Oodaiseen was subject to discretionary punishment, sentencing him to thirty stripes with a corah and seven years' imprisonment (NAR 1810, vol. 1).

Mahranee's was one of many rape cases reviewed by the Nizamut Adalat in the first half of the nineteenth century. Much has been written about culturally specific forms of violence against women in colonial India, such as sati (widow immolation), female infanticide, and dowry death. Construed by British officials as scandalous crimes of culture, the attention focused on these practices was inextricably linked to the colonial state's assertion of a benevolent civilizing mission (Mani Reference Mani, Sangari and Vaid1989; Oldenburg Reference Oldenburg2002). By contrast, the paucity of secondary literature would seem to suggest that culturally common forms of gender violence such as rape and domestic abuse were of little interest to colonial authorities in India. But this is not the case. Even if these less sensational forms of violence against women did not appeal to parliamentary reformers in the same way that sati did, everyday acts of violence were frequently considered by the colonial courts. For evidence of this, we need only turn to the records of the Nizamut Adalat, where more than one-third of all reported murder trials between 1805 and 1850 involved the death of wives, witches, and concubines. All thirty-one recorded cases of justifiable homicide in this period involved husbands who killed their wives for adulterous acts, so many that in several indices of the NAR, the entry for “Adultery” refers the reader to “Justifiable Homicide” and “Murder of a Wife.”

British administrators saw the physical abuse and murder of Indian women by Indian men as a social problem that should be handled by Indians themselves and not by the colonial state. Consequently, no special commissions of inquiry were ever set up by colonial reformers to examine or control it. In 1852, Bengal official George Campbell observed that the high rate of murder in India was both unavoidable and unavoidably gendered: “The great majority of murders are of a domestic description, generally the result of passion or wounded pride; and in most cases there is a woman in the matter . . . These cases then are not so much a question of police as of social habits; there is no preventing them” (Reference Campbell1852, 499). The establishment of colonial legal institutions unwittingly drew British authorities into policing domestic violence in ways that frequently reinforced native patriarchal authority and the state's political power (Ghosh Reference Ghosh2006). However, even if colonial law was not intended to correct or control “common” forms of gender violence—“common” in the sense that wife murder and rape are found across cultures, whereas sati is a particularly Indian phenomenon—the law still had an important and discernable impact.

Scholarship on sexual violence in European colonies in Asia and Africa has generally focused on interracial rape, adopting one of two analytical frameworks. Literary scholars analyze the rhetoric of rape as a trope and metaphor for imperial conquest and conflict (Paxton Reference Paxton1999; Sharpe Reference Sharpe1993). Historians tend to focus on the politics of purported rape and colonial anxieties about “black peril,” the perceived sexual threat posed by native males to white women (McCulloch Reference McCulloch2000; Stoler Reference Stoler2002). Both of these frameworks foreground questions of discourse, emphasizing how perceptions about sexual violence stood in for other “tensions of empire” (Cooper and Stoler Reference Cooper and Stoler1997).

This article moves the literature in a new direction by exploring the colonial legal history of intraracial (Indian-on-Indian) rape in early colonial India, primarily in Bengal.Footnote ¹ Though at times uneven and unpredictable in their rulings, British judges and the law they administered created a set of evidentiary requirements and a body of legal decisions that were as harsh on rape victims as the precolonial Islamic system was presumed to be. Despite the colonial promise of a more modern and humane criminal law, the gradual displacement of the Islamic criminal law did little to widen the path to legal remedy. English common law presumptions about the frequency of false charges and a suspicion of women's claims combined with a colonial insistence on the peculiarity of Indian culture to make it very difficult for Indian rape victims to prevail in colonial courts. Conviction rates in rape cases continued to decline into the twentieth century as the colonial legal system was modernized and rationalized (Kolsky Reference Kolsky2010). The pursuit of justice may have brought Indian women into the colonial court system, but the verdicts delivered by the Nizamut Adalat in cases of rape did little to vindicate their claims. In the final analysis, the colonial legal treatment of the “unsensational” crime of rape was itself rather unsensational. It largely reflected contemporary trends back home in England, which raises important questions as to what, if anything, was distinctively colonial about it. In the case of rape, it was the rule of colonial indifference that prevailed.Footnote ²

The Law of Rape in Early Colonial India

In 1765, the East India Company assumed the right to administer justice in Bengal. Governor-General Warren Hastings's “Plan for the Administration of Justice” (1772) adopted a noninterventionist approach that maintained existing laws even as it introduced British models of procedure and precedence and installed British judges in Indian courts, including the Nizamut Adalat. Hastings's plan divided the law into two spheres. In the private sphere, personal or religious law would apply Hindu and Muslim law to issues such as succession, inheritance, and marriage. In the public sphere, nonreligious law would apply to matters such as property, taxation, and commerce. The colonial distinction between personal and public law was a clearly gendered distinction that privatized questions concerning women, family, and tradition. Hastings's plan explicitly abolished fines against adultery, fornication, seduction, rape, and other “offenses against morality” on the grounds that such matters should not be publicly exposed in the courtroom.

Hastings's plan nominally left Islamic criminal law in place. Islamic criminal law is organized around a principle of private justice in which individuals initiate criminal proceedings, subordinating the role of government and privileging the wishes and needs of victims. The British found this system to be irrational, unequal, and arbitrary, as well as contrary to their notions of public justice, equality before the law, and due process. Not long after Hastings's plan was instituted, the colonial state began to arrogate to itself the power to prosecute and punish, superseding Islamic criminal law in the name of public interest. Because laws relating to women were confined to the private sphere, the kinds of gender violence that attracted the attention of nineteenth-century liberal British reformers—such as sati—were debated in cultural and religious terms and not as matters of criminal justice (Mani Reference Mani, Sangari and Vaid1989).

Until 1860, the criminal law of most of British India was a hybrid mix of Islamic law and Company regulations referred to as Anglo-Muhammadan law. The Company's criminal court system in Bengal had three rungs: district courts, Circuit or Sessions Courts, and the Nizamut Adalat. Magistrates at the district level had limited authority to try and punish criminals and primarily served to arrest accused persons, hold preliminary inquiries, and commit cases for trial to the Sessions Courts. Sessions Courts were manned by British judges who made legal decisions with the assistance of native law officers (kazis and muftis) who issued fatwas (legal opinions) grounded in Islamic jurisprudence. In Bengal, when a Sessions Court judge disapproved of a fatwa or when the sentence proposed was death or life imprisonment, the record of the case was referred to the Nizamut Adalat for final orders and sentencing. Judges in the Nizamut Adalat were also British only, and made decisions with the assistance of Islamic law officers.Footnote ³ The power of the Islamic law officers and the status of Islamic criminal law were gradually eroded by a series of Company regulations and totally phased out with the enactment of the Indian Penal Code in 1860.

Early colonial rape law was shaped by the confluence of two legal traditions: English common law and Islamic criminal law of the Hanafi school. The most important figure in eighteenth-century English legal thinking on rape was Sir Matthew Hale. Hale defined rape as vaginal penetration by a man (or men) of a female above the age of ten years and against her will (Reference Hale1736, sec. 628). Hale was predominantly concerned with the perceived problem of false charges, and he framed rape victims as a special class of witnesses to whom special standards of truth applied.

In contrast to the law's approach to most crimes, where the focus is on establishing the commission of a prohibited act (actus reus) and the mental state of the accused (mens rea), Hale's strict evidentiary requirements concentrated on the victim, placing her at the heart of the trial. A victim's claim and credibility required corroborating “circumstances of fact,” all of which centered attention on her character, body, and behavior before, during, and after the alleged rape. A woman's prior sexual history, fresh complaint (an immediate police report), and marks of physical violence were all crucial pieces of evidence required by Hale to dispel the presumption that the victim had consented to sex and then lied about it. Hale advised that a cautionary message be read to juries warning them about accepting a woman's testimony: “rape is a most detestable crime, and therefore ought severely and impartially to be punished with death; but it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused” (Reference Hale1736, sec. 635).

While there is no historical evidence to support Hale's fear of malicious prosecutions (Edelstein Reference Edelstein1998), it is worth noting that the laws of rape in other early modern and modern Asian contexts shared Hale's overwhelming preoccupation with false charges. In Qing China, the Qing Code (1646) defined rape in extremely stringent terms that closely resemble Hale's. Victims had to provide evidence of serious physical injuries as well as proof of chastity and vaginal penetration in order to substantiate a rape charge (Ng Reference Ng1987). Rape law in modern Japan is also similar to the English common law tradition in its emphasis on proof of physical force and a skeptical approach to victims (Burns Reference Burns2005).

In colonial India, Hale's impact was direct, as the upper-level judges, who were all British, frequently cited him in their legal opinions. For example, in Jakhoo wulud Bhowanee, twelve-year old Thukhoo alleged that thirty-year old Jakhoo raped her in his garden, smothering her with her sari to prevent passersby from hearing her cries. Covered in blood, Thukhoo returned home and promptly informed her family about what happened. Jakhoo admitted to having intercourse with Thukhoo, but claimed it was consensual. Finding it impossible to believe that a young virgin who immediately complained about being raped while covered in blood could have consented to sex, the Sessions Court recommended conviction. The Bombay Sudder Foujdaree Adalat (Bombay's regional counterpart to Bengal's Nizamut Adalat) acquitted Jakhoo, reasoning that he could not possibly have had intercourse with Thukhoo without her consent, as no traces of injury were found on her body and no people in the area heard her cries. Reciting Hale verbatim, Judge W. E. Frere observed, “In trying cases in which persons are charged with this detestable crime, we must remember the excellent advice that it is an accusation easily to be made, and hard to be proved, and harder to be defended by the party accused, though never so innocent … [Thukhoo's] object clearly was … to shift the guilt from her own shoulders to those of her partner in guilt” (Morris Reference Morris1854).

In Islamic law, rape is a form of zina, an Arabic term that encompasses unlawful types of sexual intercourse including extramarital sex, adultery, sodomy, prostitution, and rape. The Islamic law's inclusion of rape within a larger framework of various kinds of illicit intercourse is not unique. It was also a feature of Chinese imperial law (Sommer Reference Sommer2002). Zina is a hudood crime, a crime against Allah for which a specific punishment is established by the sacred texts. Whereas most crimes in Islamic law are considered private wrongs against the individual, hudood crimes are matters of public justice. Theoretically, prosecution of hudood crimes is mandatory and punishment cannot be reduced or suspended once guilt has been proven (Sanad Reference Sanad1991).

The evidence doctrinally required for a zina conviction is either four pious Muslim male eyewitnesses or four confessions by the defendant on four separate occasions in four different places. If a confession is withdrawn, punishment cannot be executed. An accuser who fails to submit sufficient evidence may be charged and punished for other hudood crimes, including qazaf (defamation) and zina, as a complaint of rape can itself be received in court as an admission of illicit intercourse. Generally, the harshness of hudood punishments—for zina, the punishment of married people is death by stoning, and the punishment for unmarried people is one hundred lashes—is mitigated by strict evidentiary rules that mitigate the severity of the substantive law in practice (Anderson Reference Anderson1966–67a, Reference Anderson1966–67b).

Dissatisfaction with the low rate of conviction in a variety of crimes, including rape, prompted the East India Company to modify the Islamic law. Bengal Regulation XVII of 1817 reserved the power of conviction and sentencing in rape cases to the Nizamut Adalat. Sessions Courts were required to refer all cases in which the law officers either found the defendant to be legally guilty or the circumstantial evidence indicated his guilt. It also empowered the Nizamut Adalat to convict when two or more judges disagreed with their law officers' recommendation to acquit. The move to secure a higher conviction rate in rape cases was part of the broader colonial effort to create a system of certain justice that defined crimes clearly and meted out punishments with regularity. One of the great ironies surrounding the British critique of Islamic law is that while they condemned it for being inhumane and barbarous in theory, they reformed it to make it harsher and stricter in practice (Fisch Reference Fisch1983).

In 1828, a Parliamentary Act set the age of consent in India at eight years.Footnote ⁴ Rape, sodomy, and sexual intercourse with a girl under eight were capital felonies, and intercourse with a girl between eight and ten was a misdemeanor punishable with imprisonment. In England, it was a felony to have intercourse with a girl under ten and a misdemeanor to have intercourse with a girl between ten and twelve. Colonial theories about the early age at which females in tropical environments “ripened” were used to justify this difference in the Indian and English laws (Singha Reference Singha1996).

In the draft Indian Penal Code, composed by Thomas Macaulay and the first Indian Law Commission and submitted to the government of India in 1837, rape was defined as sexual intercourse by a man with a woman under one of five circumstances: against her will; without her consent while she is insensible; with her consent when it has been obtained by putting her in fear of death or hurt; with her consent when the man has tricked her into thinking he is her husband; or when the girl is under nine years of age (Indian Law Commission 1837). The proposed punishment for rape was imprisonment for not less than two years and not more than fourteen, which was more lenient than both the existing punishment in India (death) and in England (death until 1841 and then transportation for life). When the Indian Penal Code was enacted in 1860, the rape section remained almost as originally drafted.

Rape on Trial in the Nizamut Adalat, 1805–50

The Nizamut Adalat reported twenty-three rape cases between 1805 and 1850. These trial records were selected for publication and served as binding legal precedents on the lower courts in the region (see table 1). In this reported case law, the overall rate of conviction (57 percent) is higher than the overall rate of acquittal (35 percent). This is to be expected, because under Bengal Regulation XVII of 1817, the Nizamut Adalat only reviewed cases in which the lower courts had already found the defendant to be legally guilty. Viewed in this way, the rate of conviction is surprisingly low: the Nizamut Adalat confirmed the lower court's recommendation to convict only slightly more than one in two times. As these cases were selected for publication from a larger pool of trials, we must be careful not to attach too much statistical significance to them. However, given that they were purposefully chosen, and because they shaped legal decision making in the lower courts, there are meaningful conclusions we can draw from them about trends in colonial judicial reasoning at the time.

Table 1.

Reported rape cases in the Nizamut Adalat, 1805–50.

*Two of the 23 cases were sent back to the lower courts for retrial.

The majority of the cases in this period involved girls ranging in age from three to ten years. Girls were more than twice as likely to win their cases than women were. Some colonial administrators explained this fact away by suggesting that girls were raped more frequently than women because of the superstition that “intercourse with a virgin is a certain cure for venereal diseases” (Powell Reference Powell1902). However, this is an unlikely explanation, as criminal courts in England also punished the rape of children more consistently and more severely than the rape of grown women (Clark Reference Clark1987). A more likely reason for the greater number of and higher conviction rate in cases involving girls is that the question of consent was immaterial.

British judges were always on the lookout for false charges, and they perceived girls to be more credible complainants and probable victims. This was clearly expressed in Government v. Fakeerchand Chung, in which eight-year old Mussummaut Muhesree claimed that she had gone out to collect firewood when Fakeerchand Chung, “meeting her in the jungle[,] took her up in his arms, and had forcible connection with her.” Fakeerchand Chung prevented Muhesree from screaming by stuffing a cloth in her mouth. Muhesree was found covered in bloody clothes and crying in the very spot where she had been raped. Muhesree was immediately examined by her mother and other women, who verified that she had been injured. In their conviction, the Nizamut judges held that “from her tender age, it was not likely she should give any encouragement or inducement to sexual intercourse.” Fakeerchand Chung was sentenced to seven years in prison (NAR 1828, vol. 3). Were Muhesree not of “tender age,” the Court may well have presumed that she had encouraged or induced the assault.

The inclination to assume that girls would not acquiesce to sex and then charge rape is also evident in Emambuksh v. Bubroo Gareewan, Son of Laul Mahomed, in which the Court described the facts of the case in the following terms: “Mussummaut Hoorun is ten years of age unmarried and of a stature and growth that precludes all idea of her acquiescence” (NAR 1834, vol. 4). Reading these decisions in reverse, so to speak, we find that the Nizamut Adalat judges approached a rape case presuming that the charge was false—that the complainant had consented to sex and then lied about. This is precisely what their contemporaries did in England and elsewhere in the British Empire (Block Reference Block2006; Clark Reference Clark1987).

In considering these cases, it is important to emphasize just how much was at stake for Indian females and their families in lodging a rape charge. In India, as elsewhere around the world, rape was (and still is) a highly underreported crime. Given the symbolic importance attached to female honor, purity, and chastity in both the Hindu and Muslim communities, girls and women who charged rape faced social ostracism, stigma, and violence. For example, in Government v. Mokhoo Ruffoogur and Bhekaree Singh, a married woman was allegedly raped by her neighbor. Her husband, who initially made a complaint of rape at the thana (police station), was later “driven to commit [murder] by the disgrace his wife had brought on him, and the taunts of the prisoner Mokhoo, [which] added to the indignity to which he had already subjected him” (NAR 1825, vol. 2).

Some colonial administrators recognized the social conditions and honor codes that made it extremely risky for Indian females to institute a charge of rape, much less lodge a false complaint. As the Sessions Court judge of Tipperah noted in Government and another v. Ramdoolall Deo and Guneshsham Surmah, the disgrace brought on a woman and her family by lodging a rape complaint strongly discouraged her from reporting the crime and testifying in a public court of law:

Shame probably caused many Indian women to conceal the sexual violence committed against them. Sometimes it prompted them to lodge other criminal charges against their attackers. In Mussummaut Rookmun v. Ramsook, Mussummaut Rookmun accused defendant Ramsook of robbing her. On the way to the thana, Ramsook admitted that he had raped Rookmun but denied robbing her. Initially, Rookmun insisted that she was robbed only and not raped. However, she ultimately instituted charges of both highway robbery and rape, explaining that shame had caused her to deny the rape. Ramsook pleaded not guilty to both charges. The Sessions Court law officer found that “the unsupported evidence of the prosecutrix was not sufficient to convict the prisoner of robbery; but that it might be presumed that the prosecutrix, being deterred by shame from acknowledging the rape in her previous examinations, had sworn robbery against the prisoner, in order that he might not escape punishment.” The Sessions Court found the prisoner legally guilty of rape and referred the case to the Nizamut Adalat, where Ramsook was convicted of rape and sentenced to seven years in prison, banishment to another district, and lashes (NAR 1819, vol. 1).

In Government v. Ramkishen Sing and Four Others, Mussummaut Gungee alleged that she was walking alone along a jungle path when she was approached by five men who grabbed her, gagged her, carried her off into the woods, and robbed her. The defendants were originally charged in the Minadpore Zillah Sessions Court with highway robbery. They denied the robbery charge but admitted that they were all “enamored” of Gungee and lay in wait “to gratify their lust … forcibly and against her consent.” The Sessions Court judge charged the men with rape, conjecturing that Gungee had concealed the rape because “reproach, disgrace, and loss of caste to a whole family, would have been the necessary attendants on a faithful disclosure of all the circumstances connected with the outrage committed on Mussummaut Gungee; and that, to avert such consequences, she had been no doubt instructed and induced to conceal the truth and to prefer a charge of a different nature against those who had so savagely assaulted her” (NAR 1830, vol. 3).

In contrast to these cases, in which the judiciary was sympathetic to the causes that inhibited Indian women from instituting rape complaints, in many instances, British judges did just the opposite. It was not uncommon for British judges to vacate a charge of rape and to replace it with an adultery charge, highlighting the status of women as the property of their husbands rather than individuals to whom hurt could be done. This was consistent with nineteenth-century Bengali notions about women's individual rights, or lack thereof. As Tanika Sarkar observes, “[n]ineteenth-century colonial Bengal was not a time when individual rights as an inalienable, public, and explicit claim could be asserted by a woman as such; a woman was not seen, as yet, to be in possession of an individuated identity of self-separable from the family-kin-community nexus-to which rights could adhere” (Sarkar Reference Sarkar2000, 602).

In Mussummaut Jooee v. Bungsee Baooree, Mussummaut Jooee, a married woman, claimed that she had gone “to answer the calls of nature” when she was seized by Bungsee Baooree and forcibly raped. Eyewitnesses saw Jooee resisting as Bungsee Baooree pulled at her clothes “in the very act of having carnal knowledge of the woman.” Bungsee Baooree “quitted the woman” when he saw the eyewitnesses and begged them “to keep the matter secret.” Jooee “walked away evidently abashed, and apparently crying, though they did not hear her voice.” At the thana, Bungsee Baooree claimed that he had consensual sexual intercourse with Jooee, confessing to an adulterous encounter but not to rape. Although the Nizamut Adalat law officers recommended convicting Bungsee Baooree of rape, the judges changed the charge to adultery and acquitted the defendant of rape (NAR 1824, vol. 2). In Deendyal v. Bhyrub Chunder Tellee, a fifteen-year-old married girl complained that Bhyrub Chunder Tellee broke into her house “and finding her alone seized hold of her.” When she screamed out, he stuffed a piece of cloth into her mouth, dragged her to a hut, threw her to the ground and raped her, threatening to kill her if she made any sound. Several male witnesses who heard the girl's cries rushed to the hut and witnessed the defendant in the act of rape. Denying the law officers' recommendation to convict, the Nizamut Adalat judges found that they did not “consider the evidence conclusive as to the fact” and suggested instead that “it may be admitted to substantiate that of adultery” (NAR 1831, vol. 4).

In 1839, Nizamut Adalat judge R. H. Rattray condemned the legal reasoning that made adultery a “lesser form” of rape. In Government v. Sirdar Shookl, and Duhoree, Nuckched, Bhola and Jogha, the Court found that a woman who screamed and attracted eyewitnesses as she was thrown down and raped by a group of men had not produced enough evidence to support a charge of rape. Judge Dick suggested that the charge be changed to adultery: “Had the woman earnestly resisted, the assistance of the boys would not have been effectual; moreover an instant complaint would have been made at the thana or before the Magistrate.” Judge Rattray issued a sharp retort to this proposal:

The prisoners were acquitted (NAR 1839, vol. 5).

In early colonial India, as elsewhere in the British Empire, the institutional treatment of rape was contradictory: in theory, it was harshly punished by law, but in practice, assumptions about female mendacity prompted a rigorous interrogation of their claims in court (Block Reference Block2006). The Nizamut Adalat judges generally emphasized the importance of protecting defendants against false charges and almost invariably expressed doubts about the credibility of female complainants. To substantiate a victim's claim, they sought direct or corroborative evidence no matter the age of the alleged victim.

Proof of physical violence is one form of evidence that could have an effect on verdicts. In Cashee v. Poorye Lode, a midwife was brought in to examine the “lacerated state” of a seven-year-old girl who was raped and left to die in a ditch in a pool of her own blood. Citing the physical evidence, the Court convicted the defendant and sentenced him to ten years in prison (NAR 1823, vol. 2). In Kureem Noorbaf v. Meeun Noorbaf, the decision to convict a ten-year-old boy accused of raping a three-year-old girl turned on the medical testimony of the civil surgeon (NAR 1827, vol. 3).

In the early colonial period, however, medical evidence did not trump all other forms of evidence as it would in late nineteenth-century England and India (Edwards Reference Edwards1981; Kolsky Reference Kolsky2010). In fact, if there was no other evidence to corroborate proof of physical violence, the Court tended to acquit. In Mussummaut Buman v. Sheikh Meerun, ten-year-old Kulmee claimed she was raped by Sheikh Meerun in front of her friend Luchmunia. During the alleged attack, Luchmunia ran to her village to summon Kulmee's brother. He and others found Kulmee “in a state which unequivocally demonstrated the treatment she had received.” Although the Court made note of the physical evidence on the “body of the ravished girl,” the defendant was acquitted because there was “no circumstantial evidence corroborative of the charge” (NAR 1823, vol. 2). In Sheo Lal against Rai Singh, a twelve-year-old girl who was both deaf and mute alleged that she was raped. The girl was physically examined by her mother and “other witnesses considered to be skillful in those matters” who testified that it was “clear that violation had been perpetrated from the appearance of the parts.” Despite the convincing physical evidence, the Court acquitted Rai Singh because the girl's testimony was not taken under oath (NAR 1827, vol. 2).

Rape on Trial in the Nizamut Adalat, 1851–57

The Nizamut Adalat reviewed sixty-nine rape cases from 1851 to 1857 (see table 2). Given the distinctly different nature of the data—the published records from 1805 to 1850 represent selected cases reviewed by the Court, whereas the published records from 1851 to 1857 represent all cases reviewed by the Court—it makes little sense to make statistical comparisons. More importantly, the numbers only tell part of the story. What is not reflected in a tabular account of the case law is the significant shift in the character and nature of trials after 1850, when new evidentiary requirements took on increasing importance to the determination of guilt and innocence. The growing insistence on alternative forms of evidence to verify a woman's charge accompanied the rationalization and modernization of law, raising important questions about the gendered consequences of colonial modernity.

Table 2.

Rape cases in the Nizamut Adalat, 1851–57.

In cases after 1850, the Nizamut Adalat increasingly focused on the caste, tribe, strength, attractiveness, and supposed intelligence and respectability of female victims to determine the probability of a rape having occurred. Because of the fundamental suspicion of women's claims, women were positioned by the courts in a dual role as complainants (charging rape) and defendants (dispelling the presumption of consent) (Estrich Reference Estrich1987). Susan Brownmiller argues that the pressure on rape victims to prove nonconsent is unique to sex crimes:

Brownmiller's insights offer a useful lens through which to view the Nizamut Adalat case law and the supposition of consent that informed legal decision making in mid-nineteenth century India. In trial after trial, the judges focused on the looks, size, and social status of the victim as factors relevant to determining the likelihood of whether she could have been raped by the defendant(s).

From the Court's perspective, the likelihood of a woman having been raped often began with a consideration of her “comeliness.” In Government and Mussummaut Monee v. Jeenaram, the examining physician described the victim as “comely and extremely simple in her demeanor. She is unmarried” (NAR 1853, vol. 3). In Meessonkyoung and Government v. Gnayen, the thirty-year-old married victim was described as “not of prepossessing appearance” (NAR 1855, vol. 5). In Government v. Kaloo Chung, Sham Chung, Buddun Shah, and Haroo Chung, the victim was depicted as “a widow, of rather pleasing appearance but not young” (NAR 1853, vol. 3). In Dokuree Kulloo v. Rajoo Chung, the victim was described as an “interesting looking girl” of “good character”; the prisoner, “quite a youth, of a low caste, with a large head” (NAR 1851, vol. 1). In the statutory law, a female's physical appearance, marital status, and demeanor had no legal relevance or standing. The emphasis placed on these issues in court effectively shifted the focus from what had actually happened in a particular case to a more abstract consideration of whether the complainant was either a likely victim of an attack or a credible witness.

The strength and stature of complainants and defendants were also considered by the Court in determining the abstract likelihood of a defendant being able to overwhelm his victim by force. Again, rather than determining whether a crime had actually occurred based on the evidence presented, the trial was oriented toward ascertaining whether it could have occurred based on supposedly objective physical indicators. In Bholat, Mussummaut Bheknee and Government v. Bhowkee, Mussummaut Bheknee alleged that she was eating lunch with her younger sister when the defendant came up behind her, carried her off to a ditch, and raped her. Bheknee struggled and screamed, and a number of witnesses came to the scene. The Bhaugulpore Sessions Court judge described Bheknee as “a very slight, and rather comely girl, about sixteen years of age, of the Koonrin caste (Mahomedan) some time married, but not then living with her husband.” Despite testimony from five eyewitnesses, the Court deliberated about the abstract feasibility of a rape having occurred, describing the defendant as “a stout truculent looking man of about forty, well able to carry off Bheknee in his arms, notwithstanding any struggling on her part.” Partly because the Court was convinced that Bhowkee's physical strength made rape theoretically possible—“a stout truculent looking man” could presumably overwhelm “a very slight, and rather comely girl”—Bhowkee was convicted (NAR 1852, vol. 2).

In Zummenah Mussulmanee v. Sheikh Nujjeeboolah, a thirteen-year-old girl claimed she was sleeping alone at home when a man tied her up, gagged her, carried her off to a ditch, and raped her. Pulling the gag from her mouth, the girl yelled out to the gardener who saw both the defendant running off and the girl lying naked in the ditch. Two days later, the civil surgeon examined the girl and concluded that although her body displayed no marks of violence, she had recently had intercourse for the first time. The Nizamut Adalat decided that the evidence of rape was clear: “The prisoner is very tall, but he is not stout in proportion to his height. He is however much stronger than the generality of Bengalees and could easily carry the prosecutrix in his arms; and I find him guilty of the crime with which he is charged.” The defendant was convicted (NAR 1852, vol. 2).

Conversely, in Mussummaut Bhugeea v. Bhageenuth, although there were three eyewitnesses who saw the “parties in a position which led to the belief that criminal connection had taken place,” the Sarun Sessions Court judge disagreed with the law officer's recommendation to convict. Focusing on the presumed strength of the victim and the absence of physical marks of violence to corroborate her claim, the judge decided that the woman's charge was false:

The Nizamut Adalat concurred, and Bhageenuth was acquitted (NAR 1851, vol. 1).

In Mussummaut Guyah v. Devah Jowrah, Mussummaut Guyah claimed she was raped in her home by Devah Jowrah. Jowrah denied the charge and insisted that if he had used force to have intercourse with Guyah, she would have called out for assistance and marks of violence would have been found on her body. The law officers in the Sessions Court moved to convict, but the judge disagreed, reasoning that it was impossible for a healthy twenty-year-old woman to be raped by a drunk man: “The evidence throughout shows the prisoner to have been intoxicated at the time, and the prosecutrix is a woman of twenty years of age, full of health and strength, and with free liberty of limbs at the time, in my opinion, the crime alleged could not have been committed against the prosecutrix's will and consent.” The Nizamut Adalat concurred, and the prisoner was acquitted (NAR 1851, vol. 1).

The determinations made by the British judges about the possibility of a rape having occurred were often based on colonial knowledge about Indian communities, indicating the legal implications of colonial discourse. In Mussummaut Chundeea v. Jhotee Roy, the victim, a member of a hill tribe, was walking home from the market with a friend when the defendant, a Rajpoot, came up behind her, threw her to ground, gagged her, and raped her. The Sessions Court jury acquitted the defendant on account because there was only one eyewitness and no corroborating testimony. However, the Sessions Court judge found one eyewitness sufficient to convict and referred the case to the Nizamut Adalat. The Nizamut Adalat judges cited a number of factors in their decision to convict. These included the victim's prompt lodging of a complaint; the observation that the woman was “young looking, for her age (sixteen), small, but well made, comely for her class, intelligent and very collected, and distinct in her testimony … The husband, a smart young hill man of twenty or twenty-two, gives his wife an excellent general character. They have been married, it seems, a year, and have always lived together on good terms, have no family as yet, but said the girl, if it ‘pleases God, I shall have a child some day.’”; and the notion that “hill people generally speak the truth.” The defendant was convicted and sentenced to seven years in prison with labor and irons (NAR 1852, vol. 2).

Questions about character and “respectability” were also extremely important to proving a female's credibility as a victim and as a witness. The weight placed on respectability pertained mostly to cases involving nonvirginal or “unchaste” women, as they constituted the most suspect class of victims. This emphasis on character and conduct placed a woman's behavior prior to, during, and after an alleged rape on trial. Even in court, her conduct was deemed pertinent to the truth or falsity of her charge. In Government and another v. Ramdoolall Deo and Guneshsham Surmah, the Sessions Court judge explicitly stated that “[t]he demeanor of a female giving evidence in a case of this nature is a matter of some importance in estimating the degree of confidence to which her statements are entitled” (NAR 1857, vol. 3). When the case reached the Nizamut Adalat, Judge D. I. Money (directly paraphrasing Hale) remarked,

That a woman's behavior in court was taken as an indicator of her virtuousness and integrity (and therefore the possibility that she was raped) reveals the performative nature of the colonial courtroom. How a complainant literally acted during a trial had a tangible impact on verdicts. In Government and Srimuthee Jumal Bibi v. Heeramun Borrooah, an eight-year-old girl's “air and manner of innocence” convinced the Sessions Court judge to accept the testimony of the girl even though it was not given under oath (NAR 1856, vol. 6). In Government and Nobin Gowallah v. Kullian Baoree, the victim was empathetically described as “a very intelligent child, [who] suffered from much shame, and seemed to be filled with great indignation against the prisoner” (NAR 1853, vol. 3). In Mussummaut Arjoo v. Amiruddee, a young widow's allegation of rape was accepted because “[t]he prosecutrix, a modest and diffident woman, alluded to what had occurred with evident pain and shame, and in my opinion strove to render the amount of injury she had sustained much less than it really was… . The prosecutrix has the character, and to all appearances justly, of being a virtuous woman” (NAR 1852, vol. 2).

A compelling court performance by the least credible of all victims—married women—could even sway a suspicious bench. In Government and Another v. Nilmoni Doss, Mohun Doss, Mohun Doss Ramgutti Doss, and Joogul Doss, the married prosecutrix claimed that she was home alone when a group of men broke in, abducted her, and violently gang raped her. The Jessore Sessions Court judge observed that the “honest and unoffending woman” delivered her testimony “with calmness, and with that degree of modesty, which a respectable woman, on whose character there has never been any imputation of levity, might be expected to display” (NAR 1852, vol. 2). In Government and Mussumut Adree v. Sheoperson Roy and Bhunjun Roy, the Court found rape “fully proved,” in part, because the victim was “overpowered with affliction throughout the proceedings and her manner and deportment strongly attested the truth of her statement” (NAR 1854, vol. 4).

Caste and class were also important avenues of judicial inquiry, although British jurists were inconsistent in their assumptions about the relationship between social status, sexual licentiousness, and criminality. In Puttoo v. Dhonie Sirdar, the Sessions Court judge commented negatively on what he generally referred to as “the character of the women of the lower orders in this country.” In his decision, the judge reasoned, “the probability to me is that the prisoner, a good-looking young man, was detected in adultery with the prosecutrix, and that it has been converted by his enemies, with consent of the prosecutrix's relations, into a case of rape.” One of the Nizamut Adalat judges disagreed with the acquittal, observing that: “the prisoner is represented to be a disreputable violent character, and the prosecutrix is, on the contrary, a respectable woman: the Sessions Court Judge does not question the fact, but adverting to the character of the lower class of women in Bengal, he thinks, that as the prisoner is a good-looking man, it is more probable the act took place with the woman's consent.” Still, the prisoner was acquitted (NAR 1852, vol. 2).

Conversely, in Government and Radhakisno Jullia v. Afthar Alli and Mohezuddeen, the Tipperah Sessions Court judge explicitly expressed his sympathy for the victim because of her low caste status. The case involved “a young and rather well-looking woman of twenty years of age,” a fisherwoman about whom the judge observed, “The class to which the pair belongs is regarded superciliously in this part of the country, and the women are frequently the subject of impertinence which would not be ventured on in instances of females of a better caste. It is, I fancy, with reference to this fact that the Committing Officer has observed in his abstract of the grounds of commitment that ‘the idea of the rape of a fisherwoman is a less heinous offence than the rape of any other case is erroneous.’” The judge continued to remark on the “humble position” of the woman and her increased susceptibility to social and sexual abuse:

In addition to the emphasis on physical size, strength, and character, great attention was paid by the Nizamut Adalat to evidence of fresh complaint. Hale reasoned that without the prompt lodging of a charge, “it carries a presumption that her suit is but malicious and feigned” (Reference Hale1736, sec. 633). In Government and Gorobinee Chassin v. Bykunt Gope, the Nizamut Adalat observed that “one of the most essential points in a case of this kind” is “prompt and early complaint” (NAR 1853, vol. 3). Two years later, they reiterated this point: “Promptitude in complaining is so obviously important in supporting a charge of this nature.”Footnote ⁵ The emphasis on fresh complaint was based on the presumption that the victim's testimony was suspect and required material corroboration. Any delay in the reporting of a rape cast a cloud of suspicion over the complainant's credibility. These assumptions, unfounded everywhere, were particularly out of place in colonial India, where the social and cultural pressures on women not to lodge rape complaint were so high. In Government and Lallchand v. Lulit Rae, the Nizamut Adalat cited the victim's prompt and immediate complaint as giving them “no reason to doubt the truth of the charge” (NAR 1855, vol. 5). On the other hand, in Mussumaut Lugnee and Government v. Sumput Pandy, failure to complain promptly outweighed all other evidence (the victim filed the charge five days after she was raped) (NAR 1854, vol. 4). In Oolasee Mahotanez v. Bodhun Ragwar and Nuffer Ragwar, the victim alleged that she was gang raped. The one eyewitness to the crime testified that he advised her to “conceal the matter and avoid disgrace.” However, the woman promptly lodged a complaint, and the Court convicted the defendant, noting that “[t]he prosecutrix appears to be a well-conducted woman [whose] complaint was made immediately after the fact” (NAR 1851, vol. 1).

Probably the most significant new feature of rape cases after 1850 was the growing importance placed on medical evidence. Not only was medical evidence introduced in court more frequently, it also became increasingly consequential to trial outcomes. Like fresh complaint, the presence and absence of medical evidence both had discernable effects on legal decisions. Proof of physical violence to the victim's body offered evidence of nonconsent and corroborated the veracity of a charge, whereas the absence of physical violence shored up the assumption of a false charge.

In the 1850s, the Nizamut Adalat judges repeatedly cited the decisive role played by medical evidence. In Government v. Azeez-oo-Rahaman, the victim's family alleged that they attended defendant Azeez-oo-Rahaman's house for dinner. During the course of the evening, the mother of the girl found her crying on a bed in the inner verandah of the house. When they returned home, the girl claimed that Azeez-oo-Rahaman had raped her. Finding blood on her child, the girl's mother immediately filed a charge with the police. The following day, the girl was taken for examination to the subassistant surgeon, who confirmed that the girl had recently been violated. The Nizamut Adalat convicted the defendant and commented on the “utmost importance” of the medical evidence: “The Court have much gratification in recording their high approbation of the zeal and alertness displayed by the darogah in immediately sending the child to be examined by the surgeon, and of the very careful manner which Mr. A. Thomas, the sub-assistant surgeon, performed his duty, which enabled him to give evidence of the utmost importance, and render abortive attempts to tamper with the child” (NAR 1851, vol. 1).

Medical evidence was so critical that on several occasions, the Court chastised the local authorities for not arranging prompt medical examinations, even though it was not a formal requirement of law to do so. In Mussummaut Kheriah and Government v. Choone Lall, the judges drew attention to “a remarkable and unaccountable omission, on the part of the deputy magistrate, in not having the unfortunate girl immediately examined by midwives, or the native surgeon, to ascertain the fact of her having been injured as she and her aunt testified” (NAR 1854, vol. 4). In Government and Ramkishen Deo v. Kumuldyal Singh, the Sessions Court judge commented on the failure of the police to gather some proof of physical injury on the alleged victim: “It would have been perhaps better had the magistrate ordered a sooruthal (police investigation into a heinous crime), as some marks might have been found on the woman's person showing she had struggled with the prisoner” (NAR 1854, vol. 4).

Medical evidence relieved the Court of the more complicated task of sifting through oral evidence, which had long been perceived by colonial authorities to be unreliable and untrustworthy (Kolsky Reference Kolsky2009). Physical proof on the “body evidencing the crime” conclusively established whether a rape had occurred and practically allowed the Court to disregard women's testimony (Kolsky Reference Kolsky2010). In Government v. Bhoonreah Doss, the Court observed that the victim's statement was “borne out by the blood on her thighs” (NAR 1854, vol. 4). In Munohur Khan v. Sheikh Panchoo, a fourteen-year-old boy was accused of raping an eight-year-old girl. After the assault, the girl was examined by the assistant surgeon, who testified that she had been violated. The judges specifically cited the medical evidence as the decisive piece of proof: “The violation of her person is proved by the evidence of the assistant surgeon” (NAR 1851, vol. 1). In Mussummaut Puburnee v. Ramkishoon, the judges commented that the medical testimony “speaks clearly as to the actual commission of the crime.” That the girl herself spoke clearly about the commission of the crime was not noted (NAR 1852, vol. 2). In Government and Zuhoorun Mooselmanee v. Amanut Amnoo Khan, the judges held that “[t]he evidence of the civil surgeon and of others leaves no doubt of a brutal rape having been committed” (NAR 1857, vol. 7).

Where there was no medical evidence, there was effectively no case. In Government v. Azim Kaneegur, Moniroodin Sheikh, and Doogoo Sheikh, a fourteen-year-old girl alleged she was gang raped by the defendants. In their acquittal, the Nizamut Adalat judges observed that the only direct evidence presented by the prosecution was the girl's testimony, which was “presumptive,” and that “no examination of her person to test the truth of this was made” (NAR 1852, vol. 2). In Phelanee Bewah v. Fuqueerah Nusha, a seven-year-old girl claimed that her neighbor had raped her. The girl's mother, as the Court observed, did not “examine the child's pudendum, as to whether it had been lacerated or not, or whether the clothes had been blood-stained, &c.” When a medical officer examined the girl eleven days later, he found no marks of violence, no rupture of her hymen, and no swelling. Citing the absence of medical corroboration and the late report lodged with the police, the Nizamut Adalat acquitted the defendant: “Indeed no reliance can safely be placed on the evidence, with reference to the delay which took place in bringing forward the complaint at the thana and to the facts established by the medical officer's deposition” (NAR 1852, vol. 2).

In Jamil Johan v. Sheikh Fareed, a young girl under the age of ten claimed that she was raped by the defendant. Bystanders who heard the girl crying witnessed the man in the act of rape, causing him to flee. According to the eyewitness, the girl was “lying insensible and bleeding much.” During the trial, the defendant introduced into evidence the fact that the girl had been examined by a doctor, who found that she had not been violated. The judge acquitted the man based on the presumption of the girl's “innocent consent”: “There is no direct evidence, excepting that of the girl herself, as to the degree of force used, and there is no proof of external injury from which great violence could be inferred. On the contrary, it seems probable that the girl may have given an innocent consent. The prisoner is a tall and powerful young man, 17 or 18 years of age, the girl, whose age is perhaps between 8 and 9 years, it being variously stated from 7 to 10 years, is diminutive for the least age assigned, so that any trial of strength was unlikely; the girl would yield where she could not resist.” Because of her age, consent was immaterial and the prisoner was convicted. Nonetheless, the case provides a striking example of the importance placed on physical injury as evidence of nonconsent (NAR 1851, vol. 1).