Hindu Norms and Personal Laws

I will briefly discuss the normative universe of caste Hindus to track how far colonial laws approximated or challenged them. Scriptural sources mandated nonconsensual, sacramental, endogamous, indissoluble, infant marriage for women: with unqualified female monogamy on the one hand, and unlimited male polygamy on the other. Burning herself to death on the husband's pyre was long considered a sign of extraordinary virtue for a widow, a sure route to millions of years in Heaven, until the ritual was banned in 1829. Because the living widow was supposedly the “half-body” of her husband who, apparently, lived on in her, she could never remarry. Instead, she practiced severe sexual, dietary, and sartorial self-mortification: even if she was an infant whose marriage had never been consummated. Manu, the great ancient eponymous lawgiver, prescribed women's subordination to father, husband, and son at different stages of life: never, he said, should she be independent.

Meant for upper castes, the injunctions had travelled among all ambitious fractions of “low” Shudra and untouchable castes. At the end of the nineteenth century, infant marriage, for example, was almost universal in Bengal, creating a pool of trans-caste gender practices that unified a deeply stratified Hindu caste society. Only tribal societies were immune to it. Most Hindu girls were married before they were 15 years old, and many were married between birth and 10 years of age, according to census figures and the Ethnographic Glosaary of 1891.Footnote ¹⁰

Hindu marriage involved the gift of a virgin—kanyadaan—who was transferred from one lineage to another. If she was younger than 8 years of age, then marriage became Gauridaan—gift of a goddess—which bestowed great merit on her parents. If, however, puberty set in before she could be married, then the natal lineage faced eternal Hell. The husband, on the other hand, could be of any age, and could have as many wives as he liked. Male polygamy was rampant, particularly among Bengali Brahmans.

Modern commentators put a moral gloss on ritual injunctions. Until puberty, they said, the girl is clean in body and mind. But sexual desire begins, and apparently becomes an avalanche, the moment she starts menstruating: which, according to most authorities, occurs punctually when she is 10 years old.Footnote ¹¹ If she is still without a husband, she will, inevitably, turn toward other men, becoming adulterous in thought, if not in deed.Footnote ¹²

An essential life cycle rite nested within child marriage. Within 16 days of her first menstrual flow, a girl had to perform garbhadhan: compulsory conjugal intercourse. Otherwise, her womb would be polluted, and her future sons would be unfit for making ritual offerings of food to ancestors. Such offering was the primary purpose of marriage and it perpetually renewed the bond among generations of the living and the dead. Transgression moreover, was a heinous sin, tantamount to feticide and drinking of menstrual blood. Although there were scriptural restrictions on enjoying a prepubertal wife, most sacred texts insisted on prepubertal marriage: because the exact moment of puberty for individual girls could not be known beforehand, marriages should occur within a large safety margin so that they do not attain puberty before they have married. That explains why it proved impossible to disentangle age of consent completely from child marriage.

Parasara, a major ancient lawgiver, had strongly endorsed the obligation of garbhadhan, and so had Raghunandan, a sixteenth century legal authority. When the Age of Consent Bill was discussed at the Legislative Council, Mr. Mitter, Member of Council, said that Bengali Hindus were, above all, guided by Raghunandan's Ashtabingshati Tattwa and Sanscar Tattwa, which commanded that immediately after her menarche, a wife must sleep with the husband.Footnote ¹³

Relevant sacred texts were dredged up and translated at the time of the controversies, generating accessible vernacular information and raising public awareness about the ritual. Newspaper after newspaper repeated them chapter and verse, almanacs warned of dire consequences if garbhadhan were violated, and tracts cited copiously from Sanskrit holy texts. They were used at court trials and during Legislative Council proceedings where the bill was debated.Footnote ¹⁴ Modern public sphere resources, therefore, considerably expanded their reach.

Modern rejuvenation of ancient prescriptions was also the outcome of colonial policies, which gave them—along with unwritten but entrenched collective customary practices—a definitive legal status, thereby redoubling their authority. From the beginning of colonial rule, English officials had believed that religion constituted the primary identity for all Indians, and that sacred texts had regulated social, domestic, and personal behavior in unchanging ways since time immemorial. Orientalist officials—so called because of their keenness to conserve Indian traditions—were convinced that it was politic, therefore, to leave natives to their own “prejudices.”

The Bengal government formulated “A Plan for the Administration of Justice in Bengal” in 1772, commonly known as the Judicial Plan of Warren Hastings, then Governor General. “In all suits regarding inheritance, marriage, caste and other religious usages or institutions, the laws of Koran with respect to Mohammedans and those of Shaster (sic) with regard to Gentoos shall be invariably adhered to.”Footnote ¹⁵ The plan laid down an abiding framework for Personal Laws for the rest of the colonial period, reinforced, subsequently, by a royal edict of 1797 and the Queen's Proclamation of 1858. Only when accredited religious authorities proved that present practice departed from authentic scripture or custom, would new laws be enacted: but only to restore ancient rules. Personal Laws, therefore, faithfully echoed Indian cultural norms.

A trifurcated body of laws began to operate: Hindu or Muslim law, derived from scripture, customary law, and statutory law made by state legislation, although under the guidance of Hindu or Muslim religious experts, and relying entirely on Indian sacred texts.Footnote ¹⁶ Because interpretations became immensely pluralized in the modern public sphere with its new reources of press, newspapers, and vernacular prose, deciding on the relative weight of each caused an enormous legal-judicial headache for the rest of the colonial period. The state played a refereeing role. Courts employed Brahman pandits and maulvis to help them adjudicate disputes until 1864. Afterwards, a solid body of case law and modern brahmanical legal opinion, well-versed in scripture, took their place.

In the domain of Personal Laws, then, Indian communities acquired something akin to sovereignty, and laws could not be made without reference to Indian scripture and custom. Nor could judicial disputes be resolved otherwise, unless scriptural or customary law failed to provide a clear sign post about a particular dispute. They created a practically noncolonized domain, which alien rulers disturbed at their peril. Indians remained subjects of their communities in these matters, rather than of the state.

Most often the state accepted orthodox brahmanical verdicts: on caste and untouchability, on marriage, divorce, succession, inheritance, and adoption patterns. Very occasionally would it accept somewhat liberal versions: but only if they were offered by Brahmans who enjoyed a legendary reputation for their mastery over Sanskrit texts.Footnote ¹⁷

Methods of Judging Rape and Death

I will move now to contemporary medicolegal and judicial practices for evaluating rape and murder so that we have a context for investigations into Phulmonee's death. The Indian Penal Code classified crime and punishment along Western lines in 1860, abandoning Islamic legal conventions, which had so far governed them. This was in stark contrast to the trajectory of Personal Laws.Footnote ¹⁸

England had borrowed much from continental criminal anthropology and forensic science. In 1876, Italian scientist Cesaire Lombroso had proposed a close reading of suspects’ bodies to discover the inscription of criminal traits therein: the body, in his opinion, being an externalization of the inner self. If properly compiled, he thought, a dossier of their physical characteristics would provide an anatomical inventory of the typical criminal body.Footnote ¹⁹ English scientists—Francis Galton and Havelock Ellis—added a gross racist twist to this. Criminal physical traits, they said marked specific races: Jews gypsies, and Asiatic and African people; that is, non-whites were genetically coded to be criminals.Footnote ²⁰

In sharp contrast, the French school, led by Alexandre Lacassagne, avoided racial stereotyping and the notion of born criminals. They focused, instead, on the sociological environment in which the criminal is made, and they developed techniques for an intensive examination of the crime scene, the suspect, and the victim.Footnote ²¹ A. Bertillon indexed catalogues of body part measurements which he borrowed from police records on criminals and habitual offenders. He also put minute physical evidence to new forensic tests, which were enabled by late nineteenth century refinements to the microscope.Footnote ²² Lacassagne closely examined hair, dust, blood and sperm, footprints, teeth, and cloth, collected from bodies of suspects, to establish rape and murder.Footnote ²³ The British absorbed these forensic skills, which eventually seeped into India. Clinical evidence in the Phulmonee case owed a lot to them.

There were shifts, too, in the assessment of valid evidence. English trial procedure went through important changes in the nineteenth century, as direct testimony lost some ground to circumstantial evidence, and a mixed bag of evidential sources prevailed. The role of lawyers also expanded, and so did their social status as respectable members of the bourgeoisie.Footnote ²⁴ By the late nineteenth century, notable Indian lawyers, especially from the Parsi community, enjoyed great wealth and professional respect.Footnote ²⁵

The Bengal Regulation Act of 1817 had outlined a preliminary police procedure for murder enquiries. The Code of Criminal Procedure of 1861, and the Indian Evidence Act of 1872, formalized criminal investigations. The first prescribed rules for medicolegal work, and the second defined expert evidence and medical testimony. The Coroners’ Act of 1871 established a regular machinery to investigate suspicious deaths.

From the 1830s on, English criminal law tended to insist that it was impossible to rape an unwilling woman: there had to be substantial injuries on her thighs and breasts to prove rape, along with internal damage. The late nineteenth century saw a bourgeois panic wave when a spate of working class women brought rape charges against employers. The Student's Handbook of Forensic Medicine and Medical Police of 1883 warned that their vaginas could have been artificially dilated or ruptured with hard objects by mothers to substantiate false claims of employer rape. Contemporary psychiatry, moreover, believed that the rapist belonged to an altogether different species of human. All this made it exceptionally difficult to prove rape charges against employers.Footnote ²⁶ Class, therefore, became a major determinant for English rape trials.

A draft Indian Penal Code had been formulated in 1837, but its terms were reopened for fresh deliberations in 1846. Interesting debates now began on rape and killing, about culpable homicide and voluntary murder. Some said there should be no distinction between action that intends harm, and action in which harm is unintended but the perpetrator knows that it may happen. Law commissioners also discussed Clause 305 in the draft code. If a rapist involuntarily causes the victim's death, would he commit culpable but not voluntary homicide? Because he did not intend to kill her, although he failed to show “a due regard for human life”? Should he, then, also be punished for causing death involuntarily? Mr. Huddleston thought that it should rather be classified as murder.

Should the rape of a child constitute a special category when it leads to her death? Mr. Pyne said that in some circumstances, “the ravishment of a delicate woman” can lead to fatal results, as in a recent gang rape case in which a 6-year-old had died. He argued that it should be seen as “voluntary culpable homicide” because the offender must have been aware of the consequences. It could even be called murder.

Mr. Thomas objected to the exception instituted by the draft code: that “sexual intercourse by a man with his own wife is in no case rape.” He continued, “The early age at which children are married and are in the eyes of law wives, make it necessary that protection should be given to them by the law till they are of age to reside with their husbands. I remember a case of forcible violation and great injury to a child, where the offender was the husband.” It was common for young Hindu and Muslim brides to remain with their families until they arrived at an “age fit for the consummation of the marriage.” In some cases it was nonetheless thought necessary for the law to more forcibly prevent husbands from taking advantage of younger brides.Footnote ²⁷

These discussions carried the first intimation of a legal age of consent for wives. But there were sharp limits. Even though commissioners were instructed to align the draft code more closely with English criminal laws, Indian cultural factors such as child marriage were clearly left inviolate. At the same time, they did try to stretch out child brides' immunities as far as possible, especially for the vulnerable child. One might see it as a ruse to pull the potential female subject into the net of imperial governance, or one might see it as a rather minimal attempt to preserve the child's life and health, which any state should consider its primary duty.

Nine was then considered as an appropriate minimum age, whereas it was 10 in England. There were other differences. “By present law in England, punishment for such crime as well as for rape is life transportation. For India, it is death for both,” said Cameron and Dr. Elliott, referring to earlier, pre-draft Code penal laws. They advised that this should be changed to imprisonment not exceeding 14 years, with a fine to be decided by the court.Footnote ²⁸ Eventually, the Penal Code fixed 10 years as the minimum age of consent. A firm line was drawn between culpable homicide amounting to murder, and culpable homicide not amounting to murder, if there was no intention or awareness that death could happen from a particular action.Footnote ²⁹

Although the Indian Penal Code Anglicized criminal law, Martin Weiner points out an important difference: it was “less severe on acts of violence.” Whereas English suspects charged with homicide were assumed to be murderers until it was proven otherwise, in India the burden of proof lay far more on the prosecution.Footnote ³⁰ For rape, the code provided for a prison sentence extending between 7 and 10 years, with or without a fine. Marital rape applied only if the wife was younger than 12 years, and, in that case, the husband was given a 2 year jail sentence. The code, thus, gave the husband a higher exemption margin for rape: or, it reduced the severity of the same charge in his case. So, if class partially protected the rapist under English law, cultural norms protected the Indian husband. Both were also covered by a high patriarchal tolerance threshold for male sexual offenses. Susan Brownmiller interpreted rape as a patriarchal strategy for control. I do not entirely agree, because rape also threatens male property rights in daughters and wives; however, when it happens, there is often a broad area of legal-judicial connivance, making it very hard to prove rape.Footnote ³¹

Elizabeth Kolsky argues that Indian medical jurisprudence diverged from the English model in order to underline cultural differences between the two.Footnote ³² But it was a peculiar difference when it came to brahmanical cultural norms. Courts liked to tread as gently as possible, and textbooks on Indian medicolegal procedure attended closely to Indian social mores. Norman Chevers, for example, cited the Edicts of Manu as an authority for colonial medical jurisprudence.Footnote ³³

Medical examination of corpses and crime scenes became a regular feature of the civil surgeon's duties, although it was neither well paid, nor conducive to efficiency. Indian Medical Gazette issues complained about the primitive mud huts reserved for autopsies, which were equipped solely with a single table. Bodies were, sometimes, sent to stations as far as a 160 kilometers away for postmortem.Footnote ³⁴ Phulmonee, however, died in Calcutta, which ensured that her autopsy was quicker and more efficient.

Nor was there always a sharp or clear disjuncture between English and Hindu legal-moral assumptions. Alarmed, no doubt, by militant feminists at home, Victorian bureucrats tried to shore up conservative norms at home and in the colonies. When the Dacca Commissioner advised the repeal of penal provisions for adultery in India, Reynolds, Magistrate, Mymensingh district, demurred: “I have always observed with great aversion the practice of the English law in giving damages in cases of adultery and seduction, and wanted to retain it as criminal offence.”Footnote ³⁵ Sometimes imperial administrators learned from Indians. James Fitzjames Stephen, once law member in India, drew upon his colonial military—bureaucratic experience to challenge J. S. Mill's argument on behalf of gender complementarity and companionate marriage.Footnote ³⁶ H. H. Risley, senior colonial bureaucrat, approved of infant marriage as the only form that suited the Oriental temperament. His assumption of a distinctly different Oriental mind contained both a sense of Western superiority and a genuine approval for Indian marriages.Footnote ³⁷

In 1886, Norman Chevers—an army doctor and an authority on medical jurisprudence—wrote that many diseases among Bengali women could be attributed to cultural factors such as early marriage and birthing practices. But he also blamed morbidity on the climate. Dr. Allen Webb found Bengali mothers of 8 and 9 years of age, but he also found them in Europe, although not among wives.Footnote ³⁸ Cultural difference was important to their discourse. But they could also look beyond that. Chevers observed that Indian girls started menstruating very early but that true physical maturity came much later. He therefore bifurcated the singular notion of puberty, splitting menarche from actual physical development. Some Hindu pandits also made a similar distinction between adya ritu or the first appearance of the menses, and the regular flow which indicates puberty, whereas others said that the former indicated full puberty and maturity.Footnote ³⁹

A limited jury system was introduced in Bengal between the 1860s and the 1880s, which strengthened the influence of Hindu opinion in judicial decisions. An official recommendation curtailed its power from 1890 in many kinds of trials. but left the adjudication of marriage related disputes to the jury.Footnote ⁴⁰ In these medicolegal and penal deliberations, there were all the elements that went into the verdict in the Phulmonee case.

The Rape, the Death, and the Trial

Phulmonee was a little deaf girl, just over 10 years of age.Footnote ⁴¹ Her husband, Hari Churn Maity, was a man of 35 years (some said 29) who had been married before, and had served a jail sentence.Footnote ⁴² Her family was clearly solvent, and their Shudra subcaste fraction was upwardly mobile, proud of its superior custom.Footnote ⁴³ Her grandmother deposed in court that their caste did not practice early cohabitation. Coming upon the rape scene, she had told Hari Maity that he was no “gentleman.” Her grandfather had registered Phulmonee's birth, an unusual practice because registrations of birth and death had just begun. Hers, then, was a modern, urban family, which is why the case came to court. Her mother, grandmother, and aunt were the chief witnesses, being the only people at home when the rape occurred. The case was driven by powerful women.

Phulmonee lived with her mother's family. Her husband had visited her a few times and some doctors thought that they found evidence of earlier intercourse. Some others attributed it to artificial dilation of the vagina which—as even Indian doctors testified—was familiar practice among elderly women who wanted to prepare the daughter-in-law for early childbearing. Because this was also practiced by working-class English women, the judge at Hari Maitee's trial knew of its evidential value. Several Indian doctors attested to Phulmonee's “forced puberty” through mechanical devices: probably when she visited Hari's home.Footnote ⁴⁴ Shocked by the effects of early marriage on little girls, many Indian doctors were campaigning for a minimum age at marriage of 16 for women, defying all scriptural injunctions. On the whole, Indian Hindu doctors were far more audacious in their suggestions for reform: perhaps because they themselves were fathers and brothers. One insisted that the personal safety of the girl should be paramount. He poignantly referred to “the disinclination to go back to her husband at this tender age may I think in many cases be due to the dread of what might be called compulsory consent.” He enumerated other forms of death: child-mothers died during parturition, or suffered from lingering post puerperal illness that eventually killed them.Footnote ⁴⁵

Indian medical opinion freely condemned premature cohabitation as well as child marriage: focusing, not just on eugenic factors, but also on “personal safety” and mental compatibility or genuine consent. British medical opinion underlined the medical problems, but it was noncommittal and nonjudgemental about child marriage and early cohabitation. Simmons provided a detailed account Phulmonee's savage rape and her physical immaturity.Footnote ⁴⁶ But then he warned that the ritual was embedded in “the silent but coercive force of traditions, the sanctions of immemorial customs, and the misunderstood injunctions of religious systems closely intertwined with the daily usages.” He, and the Council of Health, therefore, fully approved of the government's “distinct tenderness” toward them. The government, he said, must never put reform above Indian opinion. After granting that rape had led to Phulmonee's death, he concluded: “The Council do not attach any undue influence to the case itself.”Footnote ⁴⁷

Let us look at the evidence submitted at court. After the rape, Phulmonee was heard groaning piteously and her mother found her on Hari's bed, “weltering” in blood: the man stood near her, also soaked in blood. She died in excruciating agony 13 hours later. The family had sent for the doctor immediately, and a full-scale forensic investigation was launched.Footnote ⁴⁸

Four important issues were at stake: first, the girls age and the state of her physical development; second, if rape had taken place and if it had killed her; third, if it had, whether Hari was guilty of murder or culpable homicide; and fourth, had there been earlier intercourse—a moot point, because, in that case, Hari could not have anticipated that this intercourse could kill her.

Phulmonee's women relatives insisted that she was just over 10 years of age and that she had not yet menstruated. They, of course, would know this best. But some doctors thought that she was 11 or even 12 years old. Police Surgeon Cobb, who conducted a postmortem, found no sign of puberty. Intercourse with a full-grown man, he said, caused the hemorrhage that resulted in a blood clot choking the girl's entire vagina and causing internal lacerations. Even normal intercourse, he thought, could kill her, because her vaginal walls were very thin, and the vagina itself was extremely short. Dr. McLeod concurred: “she was not fit for sexual intercourse.”Footnote ⁴⁹ Here was irrefutable proof that intercourse with a girl who could have been 11 or even 12 years of age—as a few doctors suggested for Phulmonee—could kill her.

The autopsy conclusively established that Phulmonee did die of a very brutal rape. Aunondo Prosad Bose, the Bengali doctor who had first examined her when she was still alive, confirmed that there was blood on her thighs and horrible wounds to the vagina: the standard signs of rape.

Hari admitted rape to Bose, but he retracted this in court, most likely on his lawyer's advice. He said that Phulmonee came into his room when her relatives were downstairs, asking him to go to bed with her. He also said that they had sex whenever he visited her. Her women relatives, however, maintained that they always ensured that the couple slept apart when he visited.

In his charge to the jury, Justice Wilson chose to ignore the women’s statements. Facing debates about the girl's age, he concluded that age was not important. He bypassed medical opinion that testified that she was prepubertal, just over 10 years of age and not yet 11, and that the signs of earlier intercourse could also have been caused by artificial dilation of the vagina, even though he also admitted that this could have been the case. He also admitted that some doctors attributed the vaginal rupture to a possible internal disease. Without clarifying why he rejected these alternative explanations, he simply concluded that there had been earlier intercourse. Therefore, Hari could not have had “foreknowledge” that intercourse could cause death.

He did not even try to explain how and why a girl, if used to intercourse, suddenly developed hideous injuries on one occasion and died from them. He did not refer to Mr. Pyne's assertion of 1846 that an adult man would surely have known that rape of a young girl could lead to her death. There is, therefore, a split between medical-legal evidence and a judicial verdict that showed a remarkable tunnel vision.Footnote ⁵⁰

Wilson gave Hari the fullest possible benefit of the doubt. But he had to accept that Phulmonee did not invite sex, as Hari claimed. She was raped. The courtroom thus gave a voice to the murdered girl. Her wounds spoke eloquently, even if she could not. Forensic science interpreted the injuries and disclosed their implications.

Justice Wilson ruled out voluntary as well as culpable homicide on that basis. Could Hari be charged with rape? No, although rape was admitted by forensic evidence as the cause of the girl's death. But because Phulmonee was above the statutory age of 10 years, conjugal rape was not legally admissible “…in cases to which the law of rape is not applicable, neither Judges nor Juries have any right to do for themselves what the law has not done.” Hari was thus exempted from both rape and murder charges. He was sentenced for causing death “inadvertently” through a “rash and negligent act.”Footnote ⁵¹

Neither the racial explanation nor the sociological model of crime was applied by the court. In fact, it was the nationalist press that sociologized violence, claiming that Hari's grossness came from his low Shudra caste.Footnote ⁵² The court briefly interrogated the culture of Hindu marriage only to give it an honorable discharge. Despite the fact that a child had been allowed to die of rape through both Hindu marriage norms and the colonial Penal Code, Justice Wilson pronounced: “under no legal system, either Hindu, Muslim or in Britain, has it ever been the law that the husband has the absolute right to enjoy the person of his wife without regard to the question of safety for her to the point of causing her death.” He exempted child-marriage from legal restrictions. “The law…is extremely jealous of any interference with matters marital.”Footnote ⁵³

This, then, was a curious case of a crime without a criminal, an act without an actor. The effects of crimes were all too evident in the mangled body of Phulmonee. But the crime itself—either of killing or of rape—was missing.Footnote ⁵⁴

Toward a New Law

However, discomfort persisted, because a small girl had died most horribly. The government had to be seen to be doing something, especially because Parsi reformer Behramji Malabari was already campaigning hard in England to abolish child marriage. Viceroy Lansdowne told his contacts in England that, as a Parsi, Malabari could not suggest reforms in Hindu Personal Laws. Malabari was the first nineteenth-century reformer who did not know Hindu sacred texts, or even Sanskrit, in stark contrast to Rammohun Roy and Iswarchandra Vidyasagar who had campaigned for the abolition of widow-burning and for legalization of widow-marriage respectively. He actually represented a budding new generation of secular reformism. He could not have any standing, therefore, in colonial eyes, although he did find some support from a few upper-caste Hindu reformers such as Mahadev Ranade.Footnote ⁵⁵

Phulmonee's death, however, put the viceroy in a quandary. An Indian reformer had asked for a change in marriage laws, which the colonial government resisted, and this had led to a horrible death. It put a strong question mark against Empire's civilizing claims.

Law Member Andrew Scoble, along with other officials, pushed hard to discuss a legal remedy against rapes of child-wives: “My own opinion is that the death of this poor child wife will afford an excellent opportunity for carrying out a most desirable amendment of the law.” Scoble also said that he failed to see how Hari's action was merely a rash and negligent act.Footnote ⁵⁶ Lansdowne agreed that the death was, indeed, horrible: “The age question is now revived by death of “the poor child … and I should not be at all sorry to have my hands on this.”Footnote ⁵⁷ But he wanted to defer action until the Penal Code could be revised.

Lansdowne would not abolish child marriage, or criticize it, because it was firmly anchored in scripture. Instead, he sought to ascertain just how serious the problem of infantile cohabitation within marriages was, and whether it merited legal measures. Justices Telang and Nulkar offered him a useful compromise solution. They split the marriage ritual into two and called the first sacramental rite an engagement, after which the wife remains with her parents until she attains puberty. Then dwiragaman, or the real marriage, occurs, when the wife goes to her matrimonial home, this time for good. If instead of child marriage, prepubertal cohabitation was banned—a number of reformers suggested that 12 years of age was a safe age limit—then the law would simply replicate the authentic ritual form.Footnote ⁵⁸

Lansdowne then solicited opinion from European and Indian officials and doctors, and from Indian dignitaries about the abolition of premature cohabitation. With a few exceptions, Muslim respondents supported the bill. One said that under Quranic law, the girl's presumed consent does not matter if there is a criminal attack against her person, and if she is underage. Most flaunted the fact that unlike Hindus, Muslims were not bound to infantile cohabitation by ritual considerations.Footnote ⁵⁹ Hindu opinion was divided, although an overwhelming majority opposed the bill, raising the spectere of garbhadhan now facing extinction. A few dug up endorsements from strange sources. The Raja of Dhingra cited approximately 100 Hindi literary treatises that described the delights of enjoying little girls, according to the genre of nayikabhed. It was very prevalent among Rajput aristocrats, he said.Footnote ⁶⁰

In a more serious vein, Raja Peary Mohan Mukerji from Uttarparah presented two separate arguments: “It is the unanimous and unequivocal opinion of all experts in the Hindu shastras … that inasmuch as a larger proportion of, if not most, girls of Bengal attain puberty before the age of 12, the proposed measure would do serious violence to the religious rites and usages of Hindus …” He also reminded that “Brutal conduct on the part of husbands towards wives is possible in case of girls of all ages…” Obhoy Chandra Sircar asked if Phulmonee's death would have been less tragic if she has been 16 years of age and not 10.Footnote ⁶¹

Conservatives underlined a genuine legal dilemma. Age is a conveniently precise signpost for distributing legal immunities. But, in the same measure, it decriminalizes and legitimates the same act above the age ceiling.Therefore, the act remains constant but its implication changes according to age. Just as it accorded immunity from rape to girls younger than 12 years of age, the law made it equally clear that girls 12 and older would lack state protection.

The government diligently consulted pandits of renown, and among them was Iswarchandra Vidyasagar, reformer par excellence, who had advised the legalization of widow-marriage and had campaigned against child-marriage since 1850.Footnote ⁶² He confirmed that garbhadhan was fundamental, and that the law would kill it. He cited Parashara: the same sacred authority whose verse he had once interpreted as an endorsement for widow-remarriage and whom he had elevated as the most authoritative ancient lawgiver for the present Kali age. He was caught in his own trap. The colonial legal framework made it obligatory to find scriptural approval for each proposed reform, and each reformer had to convince the state that the text that he cited carried more weight than all others. Having once used Parashara to propagate remarriage, Vidyasagar could not deny his sanctity.

Therefore, “I am not able to give unqualified support to the Bill.” Interestingly, he phrased his opposition as lack of “unqualified support.” He tried to put it in reformist language: “I cannot approve of a measure which tends to license the torturing of wives, after they had attained the age of 12.” His logic, unfortunately, was weak. The bill would not make older girls more helpless; they were already so. It would try to protect younger ones. He finally stated his chief objection that, “If you now insist on the new bill,” the act “should not at all be classified as rape but a new class of offence should be created for it and it should be punished in a more reasonable way.”

At the other pole were men such as Raja Durga Churn Law who found the law “very wholesome and very necessary.” Law said that garbhadhan was not universally observed. He himself came from a “lower” caste and had a finer sense of varied custom. Brajendra Nath Seal, another intellectual from a Shudra caste, agreed with him. Dwaraka Nath Ganguly, who had campaigned for widow remarriage and had also investigated European atrocities against Indian coolies in tea gardens, “hailed the bill with delight. That the delivering up of the weak and the innocent to the strong and the cruel, and the forcing of wifehood and motherhood on little girls of 10 is a pernicious custom nobody has yet ventured to deny.” He advised raising the age to 14 as that would protect many who attain puberty after the age of 12 years.Footnote ⁶³

At the same time, even liberals balked at the specific mention of rape within marriage. They would devise protective measures for infant wives, even at the cost of violating religious injunctions. But they would not name that from which wives needed protection. Footnote ⁶⁴

Hindu Dissent

Vernacular newspapers waged a powerful campaign against the bill, claiming that it violated the Queen's Proclamation, as well as Hindu marriage, Hindu family, Hindu morality, and Hindu faith itself.

Hindu orthodoxy, which had so far defended widow-burnings and opposed widow-marriage in the name of religious injunctions, now morphed into strident cultural nationalism. Incensed by repeated famines, by discriminatory laws against freedom of expression, by frequent European lynching of subaltern Indians in public altercations, and by tyrannical indigo and tea planters, anti-colonial nationalism was germinating in newspapers and public associations. It suddenly vaulted across the familiar expressive modes and took dissent to new heights. These nationalists, however, ignored the material and racist aspects of colonial destructiveness, homing in only on the cultural changes that the state so feebly suggested. “The day has at last arrived when dogs and jackals, hares and goats will have it all their way. India is going to be converted into a most unholy hell, swarming with hell worms and hell insects…the Hindu family is ruined.”Footnote ⁶⁵ Or, “No, no, a hundred battles like that of Plassey, assay, Multan could not in terribleness … compare with the step Lord Lansdowne had taken.”Footnote ⁶⁶ Or, “The Englishman now stands before us in all his grim and naked hideousness … the demons of the cremation ground are laughing a wild, weird laugh … Brahmarakshash [demons], Terror of the universe, Englishmen … do you gnash your teeth, frown with your red eyes, laugh and yell … and we, the twenty crores of Indians shall lose our fears and open our forty crores of eyes.”Footnote ⁶⁷ Cultural nationalism imparted most compelling words to traditional orthodoxy.

Hindu Agitations

Outside official circles and the courtroom, an informal tribunal was in the making: street-level demonstrations, literally the first in India's political history. Surendranath Banerjee, leader of the Indian Association, referred to the protests when he opposed the bill. “It is impossible to talk about the bill without reference to the great and unusual agitation which it has given rise to in Bengal.”Footnote ⁶⁸

For the first time, agitation became a political form. It also became a reference- point for lawmaking. The reformist newspaper, The Bengalee, had supported the bill until January 1891. After the unprecedented phenomenon of a mass demonstration at the Calcutta Race Course on February 21, new problems in the law suddenly arose. The protests had drawn in thousands of people. They chanted slogans: “WE DO Not Want, We DO NOT Want, WE DO NOT WANT THE BILL.” In March, after covering yet another, even more heady “monster demonstration,” The Bengalee swerved into full-throated support. “It is no longer the language of appeal which opponents of the Bill address to the rulers of the land…. However we may differ, we cannot but respect such sentiments.”Footnote ⁶⁹ Nationalism now finally transited from its timid, polite moderate phase into extremism: a politics of great linguistic violence and radical criticism.

English officials closely tracked this “great and unusual” agitation in their districts.Footnote ⁷⁰ Most agreed that though it looked innocuous at first, it was rapidly assuming alarming proportions.

Earlier moderate nationalists had also criticized colonial misrule, discrimination, and economic devastation, in however respectful language. They analyzed the drain of wealth, de-industrialization, and growing Indian impoverishment as cardinal aspects of England's work in India.Footnote ⁷¹ Cultural nationalists spoke, instead, of the superiority of Hindu marriage norms, and they promised to save them at all costs. A mammoth petition from “The Hindu Inhabitants of Calcutta and Its Suburbs” was sent to the Viceroy in 1891.Footnote ⁷² It claimed that not only would the act wound Hindu sensibilities and families, it would also destroy the most successful and loving system of conjgality the world has ever known. “Hindu husbands (old and young) are proverbially solicitous for their wives’ welfare …. Hindu marriage being religious, is framed by rigid injunctions which should not be violated. Early consummation among Hindus is uninfluenced by carnal considerations.”Footnote ⁷³

Signatures covered more than 500 pages and were arranged in several columns on each page. Signatories were pandits, artisans, clerks, jewelers, lawyers, teachers, landlords, doctors, moneylenders, tenureholders, and priests and came from all castes and from most segments of the upper and middle classes. Protests threw up new genres of political activists as volunteer brigades were formed. Although they approached nearby jute mill workers for signatures, they seemed to have been unsuccessful. Still, the middle–class sortie into factory areas was unprecedented.Footnote ⁷⁴

Before Phulmonee's death, a radical idea was slowly gaining ground: a woman should consent to the conditions that governed her. The Sati had to publicly assent to burning, and no burning could happen without it. The widow-marriage law of 1856 allowed the adult widow to marry again; even if her guardians objected, her own consent would suffice.Footnote ⁷⁵ Now, consent contracted into mere physical capacity to sustain intercourse without grave damage. It was scrubbed bare of any association with mental compatibility, will, or desire.

Discourses on Child Marriage

The Hindu nation, as imagined by cultural-nationalism, began to change. Earlier, the orthodoxy used to describe Hindu marriage as love, pleasure, and beauty. Child marriage, especially, was a time of delight and playfulness.Footnote ⁷⁶ Pandit Pran Nath Saraswati rejected the notion of female consent as altogether repulsive: “The conception of the approved form of marriage in Hindu law being of the nature of a gift and not a contract, the idea of a wife's consent to marital sexual intercourse is still more foreign to Hindus.” If she was a gift in exchange between two families, she herself could not decide on any aspect of the transaction, including its time. Rajendralal Mitra laughed the idea out of court. The girl is given away, he reminded his audience, even as cattle is. Marriage is kanyadaan, the gift of a virgin from one lineage to another. The gift does not decide the time of its exchange.Footnote ⁷⁷

Pain and discipline became the new foundations of the reimagined nation. Nationalists did not deny the reports of cruelties, they gloried in them: “This discipline is the pride and joy of chaste women and it prevails only in the Hindu society.”Footnote ⁷⁸ There was, almost, an invitation to human sacrifice.

“Fasting on Ekadasi is a cruel custom and many weak-bodied widows very nearly die of observing it . . . Is it to be banned, too, for this reason, the guardian of the widow arraigned in front of the High Court and pronounced guilty by the Baboo jurors?”Footnote ⁷⁹ As with widow burnings, her death was once again flaunted as a proud privilege of the Hindu woman who embraces pain to preserve the cultural heritage of Hindus. Indeed, it was the supreme sign of female heroism. In order to be a culture-bearing person, she must give up the slender right to her life and body that earlier laws had tentatively opened up.

The Law

What did the state do? Lansdowne had seized eagerly on the age of consent bill, which seemed to be a reasonable halfway point between changing marriage laws and being completely inactive. Changing cohabitation norms within marriage, he thought, would retrieve the colonial self-image as civilizer, yet, as it did not interfere with marriage laws, it would not provoke Hindus overmuch, or so he hoped.

When the bill was introduced in the Legislative Council on January 9, 1891, Law Member Andrew Scoble imagined that he had covered all possible grounds of Hindu objections. First, he argued that it made no new departure because the earlier Penal Code provision had already prohibited cohabitation with wives under 10 years of age. The present law merely extended its scope to a small extent. He thus wanted to make the law acceptable by making it appear innocuous and insubstantial. He then tried to detach it from the controversial conjugal domain by pointing out that it also applied to prostitutes. He went on to say that it was not a law just for Indians, but also for Europeans, thereby, invoking racial equality. He promised that it would be enforced with the greatest leniency, thus almost guaranteeing its ineffectuality in advance. He cited scripture that forbade cohabitation with prepubertal wives as sinful: suggesting an exact synchrony between law and faith. He thus shifted the onus of initiative and responsibility onto Hindu opinion.

He failed to convince the Indian legal expert in the Council, Sir Romesh Mitter. Child wives do not need legal protection from their Hindu husbands, Mitter retorted angrily. In any case, rape cannot occur within a conjugal situation because rape, by definition, is loss of chastity. How can a wife lose it through intercourse with her husband?Footnote ⁸⁰ This, incidentally, is exactly what the current government of independent India is saying at this moment about criminalizing marital rape.Footnote ⁸¹

Interestingly, a new Factory Act was being discussed alongside this bill, which shortened working hours of women workers. In almost identical vein, it, too, was hotly contested by their “natural guradians”: the capitalists.Footnote ⁸²

The Afterlife of the Law

Shortly after Phulmonee's death, another little girl was raped and wounded very badly by her elderly husband. Barely alive, she told the court: “I cannot say how old I am. I have not reached puberty … my husband violated me against my will … I was insensible owing to his outrage on me … When I cried out, he kicked me in the abdomen … I cannot live with him.” The husband was discharged by the British magistrate and his wife was restored to him.Footnote ⁸³

Far from colonizing Indian cultural pasts, colonial state conservatism had tried to meet Hindu conservatism on equal terms. Despite mutual hostility, the state and its Hindu critics shared similar assumptions about the wife. The state thought that her puberty, presumed to occur at 12 years of age sharp, presumably made her ready for safe intercourse. And that presumably confirmed her consent to sex, even if she spoke otherwise. If her body was ready for puberty or childbearing, her mind had to assent. The wife did not express her agency, her body articulated it mechanically when it reached a certain age and achieved some physical strength. Hindu nationalists, on their part, insisted that the commands of scripture automatically made the girl a consenting subject.

The colonial state had imagined that community and nationalism were unchanging and frozen, and that Indians were, and would always remain, conservative. The issue of child marriage and cohabitation, however, had an interesting afterlife in the 1920s when emergent women's associations forced nationalism to reinvent itself on more liberal lines. Scripture no longer featured as prominently as it had earlier.

There is a rich debate about the scope of feminism within Islam.Footnote ⁸⁴ Indian feminists, however, have, by and large, accepted that faith can be appropriated for feminist purposes without any great difficulties. It is a hopeful argument, because the fundamental logic of colonial Personal Laws survives in today's Family Laws, which are different for different religious communities. In colonial times, too, there were instances when some gender reforms were, indeed, pushed through with scriptual arguments and reinterpretations.

The age of consent debates, however, constituted a limit case. They showed that faith need not be infinitely malleable and elastic. It does set up resistances against appropriations that subvert its fundamental purpose.