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Withholding Consent to Conjugal Relations within Child Marriages in Colonial India: Rukhmabai's Fight

Published online by Cambridge University Press:  02 April 2020

Kanika Sharma Open the ORCID record for Kanika Sharma [Opens in a new window]
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Abstract

Married at the age of eleven, Rukhmabai refused to go and live with her husband who had filed a suit for restitution of conjugal rights against her in 1884. This paper analyses the transplantation of the notion of restitution of conjugal rights into Hindu personal law in India at a time when child marriage was rife and there was no minimum age of marriage. Within this context Rukhmabai's case symbolises an important interjection in its attempt to posit lack of consent to an infant marriage as a defence against suits for restitution of conjugal rights. This marked a shift from female consent being understood as a question of physical maturity alone, to a claim of intelligent consent and the capacity to withhold such consent within an unconsummated marriage arranged in the girl's infancy. While analysing these notions of consent within colonial law the paper also closely scrutinises Rukhmabai's public writings to recover one of the earliest published Indian female views on the need for marital consent.

Type
Forum: Regulating Age of Consent in the British Empire
Information
Law and History Review , Volume 38 , Issue 1 , February 2020 , pp. 151 - 175
Copyright
Copyright © the American Society for Legal History, Inc. 2020

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Footnotes

I thank Tanika Sarkar and Eleanor Newbigin for their advice, critical comments, and helpful suggestions for this article. I am grateful to Ramya Swayamprakash for facilitating access to many of the primary sources on which this article relies. I also thank my co-organiser Laura Lammasniemi and the participants at the “Comparative Perspectives on Regulating Age of Consent and Child Marriage in the British Empire, 1880 to 1930” conference for providing valuable food for thought. Generous funding from The Society of Legal Scholars and the Economic History Society allowed us to host the conference at SOAS in 2018.

References

1. For example, see Chatterjee, Partha, “Colonialism, Nationalism, and the Colonialized Women: The Contest in India,” American Ethnologist 16 (1989): 622CrossRefGoogle Scholar. For an analysis of nationalism in the context of age of consent, see Sarkar, Tanika, Hindu Wife, Hindu Nation: Community, Religion and Cultural Nationalism (Ranikhet: Permanent Black, 6th impression, 2017)Google Scholar.

2. For example, see Nair, Janaki, Women and Law in Colonial India (New Delhi: Kali for Women, 1996)Google Scholar.

3. For a detailed analysis of this relation, see Burton, Antoinette, Burdens of History: British Feminists, Indian Women, and Imperial Culture, 1865–1915 (Chapel Hill and London: University of North Carolina Press, 1994)Google Scholar.

4. For remarkable exceptions and a discussion on the emergence of feminism in India, especially in the Bombay Province, see Anagol, Padma, The Emergence of Feminism in India 1850–1920 (Oxford: Routledge, 2016)Google Scholar.

5. Sarkar, Hindu Wife, Hindu Nation, 244.

6. I use the term “intelligent consent” here as it was used in the draft penal code of India to denote consent given when a person is able to “understand the nature and consequences” of that to which she gives consent. A Penal Code prepared by the Indian Law Commissioners (Calcutta: The Governor General of India in Council, 1837), 6.

7. The other case was that of Phulmonee Dasi, discussed by Tanika Sarkar in this issue of Law and History Review.

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11. The most prominent of such organizations was the Rakhmabai Defence Committee (Rakhmabai Surakshana Samiti) founded by Rukhmabai's Indian and European supporters.

12. With the exception of Masselos and Anagol, both of whom concentrate on Bombay.

13. Dadaji Bhikaji v. Rukhmabai, ILR 9 Bom 529 (1885).

14. Rukhmabai, “A Jubilee for the Women of India,” The Times, April 9, 1887, 8.

15. A v. B (1868) LR 1 P&D 559, 562.

16. Corbet's Case (1599) 7 Co Rep 44a, quoted in Jackson, Joseph, “Consent of the Parties to Their Marriage,” The Modern Law Review 14 (1951): 1–26Google Scholar, at 23.

17. Anagol, The Emergence of Feminism in India 1850–1920, 185.

18. Ardaseer Cursetjee v. Perozeboye, 6 MIA 348 (PC) (1856).

19. Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, 9 MIA 551 (PC) (1867).

20. In this regard, colonial law regarded Hindu marriages as being closer to the irrevocable Christian marriages.

21. Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, 610.

22. Bai Prem Kuvar v. Bhika Kallianji, 5 Bom HCR 259 (1868).

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27. Sarkar and Sarakar, “Introduction,” 3.

28. Kateeram Dokanee v. Mussamut Gendhenee, 23 WR 178 (1875).

29. Gatha Ram Mistree v. Moohita Kochin Atteah Domoonee, 14 BLR 298 (1875).

30. Chotun Bebee v. Ameer Chand, 6 WR 105 (1866).

31. As noted, later the CCP 1882 included a separate section for decrees of restitution of conjugal rights – s260.

32. Broughton, L.P. Delves, The Code of Civil Procedure Being Act VIII of 1859, 4th ed. (Calcutta: Thacker, Spink and Co., 1871)Google Scholar.

33. Gatha Ram Mistree v. Moohita Kochin Atteah Domoonee, 304.

34. Yamunabai v. Narayan Moreshivar Pendse, 1 ILR Bom 164 (1876), 174.

35. “Suit for the Restitution of Conjugal Rights: Dadajee Bhikajee vs Rukhmibai,” The Times of India (hereafter TOI), September 25, 1885, 5.

36. Sharafi, Mitra, “The Semi-Autonomous Judge in Colonial India: Chivalric Imperialism Meets Anglo-Islamic Dower and Divorce Law,” The Indian Economic and Social History Review 46 (2009): 57–81CrossRefGoogle Scholar, at 60.

37. At the turn of the century, Justices Ameer Ali and Brett come to the same conclusion in their examination of existing case law presented as part of their judgment in Surjyamoni Dasi v. Kali Kanta Das ILR 28 Cal 37 (1901).

38. Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, 610.

39. Jumoona Dassya Chowdhrani v. Bamasoonderai Dassya Chowdhrani, 3 IA 72 (1876), 78.

40. Sarkar, Hindu Wife, Hindu Nation, 201.

41. Arumugam v Tulukanam, ILR 7 Mad 187 (1883).

42. Lalla Gobind Pershad v. Dowlut Butee, 14 WR 451 (1870).

43. Sharafi, “The Semi-Autonomous Judge in Colonial India.”

44. Following Sharafi, who in turn borrows from Hendrik Hartog, I must highlight that even when judges found in favor of the wives, they were not necessarily doing so in order to follow a “feminist agenda.”

45. Brindaban Chandra Kurmokar v. Chandra Kurmokar, ILR 12 Cal 140 (1885).

46. For example, see Hope v. Hope, 164 ER 644 (1858).

47. For example, see Marshall v. Marshall, 5PD 19 (1879).

48. Weldon v. Weldon, 9 PD 52 (1883).

49. Padma Anagol, “Feminist Inheritances and Foremothers: The Beginnings of Feminism in Modern India,” Women's History Review 19 (2010): 523–46, at 537.

50. In fact, Rukhmabai's counsel's attempt to discredit such suits for restitution of conjugal rights within Hindu marriages was discouraged by some on the grounds that it would restrict the rights of abandoned wives in the future.

51. Bhikaji, Dadaji, An Exposition of Some of the Facts of the Case of Dadaji v Rakhmabai (Bombay: Advocate of India Steam Press, 1887), 2Google Scholar.

52. Dadaji Bhikaji v. Rukhmabai (1885), 531.

53. Ibid.

54. Ibid., 534.

55. Ibid., 535.

56. Dadaji Bhikaji v. Rukmabai (1886) ILR 10 Bom 301, 307.

57. Native Opinion, September 27, 1885, quoted in Chandra, “Whose Laws?” 206.

58. Dadaji Bhikaji v. Rukmabai (1886), 303.

59. Ibid., 307.

60. “Suit by a Hindoo for the Restitution of Conjugal Rights: Dadajee Bikajee vs Rukmibai,” TOI, March 19, 1886, 6.

61. Letter by K.T. Telang dated April 24, 1887, published as “The Rakhmabai Defence Fund Committee,” TOI, May 26, 1887, 5.

62. Dadaji Bhikaji v. Rukmabai (1886), 307.

63. “Suit by a Brahmin for the Restitution of Conjugal Rights: Dadajee Bikajee vs Rukmibai,” TOI, March 13, 1886, 3.

64. “Suit by a Hindoo,” March 19, 1886.

65. Ibid.

66. Ibid.

67. Dadaji Bhikaji v. Rukmabai (1886), 311.

68. “The case of Ruckmibai,” TOI, March 4, 1887, 3.

69. Ibid.

70. “The Hindu Lady,” The Queen reprinted in TOI, April 11, 1887, 5.

71. Chandra, “Whose Laws?” 189.

72. “The Last of the Rukhmabai Case,” TOI, July 7, 1888, 3.

73. “Suit by a Hindoo,” March 19, 1886.

74. Heimsath, Indian Nationalism and Hindu Social Reform, 151.

75. Malabari, Behramji, Infant Marriage and Forced Widowhood in India: Being a Collection of Opinions, for and against, Received by Mr Behramji M Malabari, from Representative Hindu Gentlemen and Official and Other Authorities (Bombay: Voice of India, 1887)Google Scholar.

76. Heimsath, Indian Nationalism and Hindu Social Reform, 152.

77. Malabari, Behramji, An Appeal from the Daughters of India (London: Farmer and Sons, 1890)Google Scholar.

78. For a further discussion on these positions, see Kosambi, “Girl-Brides and Socio-Legal Change.”

79. Malabari, “Infant Marriage and Forced Widowhood in India,” 1.

80. “Editorial Article 1,” TOI, June 26, 1885, 4.

81. For a close examination of how Rukhmabai's writings were received in India and the United Kingdom, see Burton, “From Child Bride to ‘Hindoo Lady,’” especially 1137–42.

82. “Suit by a Hindoo,” March 19, 1886.

83. Rukhmabai writing as “A Hindu Lady,” “Infant Marriage and Enforced Widowhood,” TOI, June 26, 1885, 4.

84. Rukhmabai, “Rukhmabai's reply to Dadajee's ‘Exposition,’” TOI, June 29, 1887, 5. For an examination of other contemporary women's writings on age of consent in the vernacular press in Bombay, see Anagol, The Emergence of Feminism in India 1850–1920, ch. 6.

85. Rukhmabai, “Infant Marriage and Enforced Widowhood.”

86. Rukhmabai writing as “A Hindu Lady,” “Enforced Widowhood,” TOI, September 19, 1885, 4.

87. Anagol, “Feminist Inheritances and Foremothers,” 525.

88. Ghosh, Durba, Sex and the Family in Colonial India: The Making of Empire (Cambridge: Cambridge University Press, 2006), 16CrossRefGoogle Scholar.

89. Rukhmabai, “A Jubilee for the Women of India.”

90. “Rukhmabai's reply to Dadajee's ‘Exposition.’”

91 Recently the issue of the validity of suits for restitution of conjugal rights within Hindu marriages has returned to the Indian Supreme Court in the form of a public interest litigation, with the first full hearing scheduled for February 2020. Relying heavily on Pinhey's judgment the petitioners have argued that the recognition and implementation of such suits violates women's rights to equality and personal liberty, and right against discrimination under the Indian Constitution. Ojaswa Pathak and another v. Union of India, W.P.(C) No. 250/2019.

92. Heimsath, Indian Nationalism and Hindu Social Reform, 158.

93. Abstract of the Proceedings of the Council of the Governor General of India Assembled for the Purpose of Making Laws and Regulations 1891, vol. 30 (Calcutta: Government Printing, 1892) 12.