¹ As opposed to traditional provisions within Muslim personal law, as well as various Hindu caste rules.

² The notion of ‘potentially polygamous’ marriage, invalid under British law, was a description that applied even when parties were in fact monogamous. The concept remained operative in Britain as late as 1995, until by the Private International Law (Miscellaneous Provisions) Act 1995 (1995 c 42) s. 5, marriages of persons domiciled in England and Wales performed abroad under laws that permitted polygamy, became valid, provided that polygamy was not actually committed. Halsbury's notes on the law referred to Muslim marriages, performed under Muslim personal law abroad, and the case of Hussein versus Hussein (1983) Fam. 26 in particular. Halsbury's Statutes of England and Wales, (4^th edn, London: Butterworths, 2006), Vol. 27, pp. 640–641. The consequences of this legal doctrine were very different for Christians in Britain and in India, as this paper will show.

³ British Indian courts had Muslim and Hindu law specialists attached to them, in consultative capacity, until such offices were abolished by the Act XI of 1864. However consultation of ‘expert witnesses’, especially where Muslim law was concerned, continued into the early twentieth century. Jain, M.P., Outlines of Indian Legal History (4th edn, Bombay: N.M. Tripathi, 1981), p. 467Google Scholar.

⁴ Zaburdust Khan versus his wife, N.W. Provinces High Court Reports, Vol. II (Allahabad: N.W. P. Government Press, 1870), pp. 370–379.

⁵ Unlike all other Indian males, except Parsis, after the passing of the Parsi Marriage and Divorce Act, XV of 1865.

⁶ Viswanathan, Gauri, Outside the Fold: Conversion, Modernity and Belief (Princeton: Princeton University Press, 1998), pp. 75–117Google Scholar. Mallampalli, Chandra, Christians and Public Life in Colonial South India 1863–1937: Contending with Marginality (London: Routledge, 2004), pp. 21–80Google Scholar, especially with regard to inheritance laws, pp. 38–58.

⁷ David Washbrook encapsulated the dynamic tension produced by this division by referring to the ‘Janus-faced’ nature of the colonial legal system, which, by embedding ascribed status in personal/private law, hobbled the possibility of an homogenous rule of law even in the public realm, particularly with regard to property rights. Washbrook's analysis of Indian personal law is much more historically situated than that of most legal scholars, including Derrett, whose work he relied upon. Washbrook, David, ‘Law, State and Agrarian Society in Colonial India’ in Modern Asian Studies, Vol. 15, No. 3 (1981), pp. 649–721CrossRefGoogle Scholar; Derrett, J. D. M., Religion, Law and the State in India (2nd edn, New Delhi: Oxford University Press, 1999)Google Scholar. The present paper highlights issues that Washbrook did not contend with, firstly, the ubiquity of status in public law, not simply as a spillover from the personal law, but inherently, through the implication of racial difference. Elizabeth Kolsky has pointed to the claim made by white supremacists that they were entitled to a distinct criminal procedure as a ‘personal law’. Kolsky, Elizabeth, ‘Codification and the Rule of Colonial Difference: Criminal Procedure in British India’ in Law and History Review, Vol. 23, No. 3 (September 2005), pp. 631–683CrossRefGoogle Scholar. This paper attempts to connect the realms of public and private law, and the apparently distinct legal claims to racial and religious status by narrating the history of such persons who simultaneously invoked all these categories: the Indian Christians. Secondly, due to the nature of the questions asked, Washbrook's analysis had little time for tracing the ideological differences among British legislators and judges regarding the legal approach to religious difference. This is the subject of the present paper, which also draws on recent discussions of the theme in Benton, Lauren, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (Cambridge: Cambridge University Press, 2002)Google Scholar; and Travers, Robert, Ideology and Empire in Eighteenth-Century India: the British in Bengal (Cambridge: Cambridge University Press, 2007)CrossRefGoogle Scholar.

⁸ Benedict Anderson's notion of the modern community appears eminently applicable not only to those collectives which emerged as nation-states, but also to religious collectives with similar territorial vision which did not in all cases coincide with a national reality. Anderson, Benedict, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London: Verso, 1983)Google Scholar.

⁹ In the contemporary sense of a child of a British father and an Indian mother, rather than British expatriates in India, although these two social categories were not nearly as distinct as the latter desired them to be. See Elizabeth Buettner's discussion of how the ‘return’ of British children for education to Britain, was essential for securing their ‘white’ identity. ‘“Not Quite Pukka”: Schooling in India and the Acquisition of Racial Status’, in Buettner, Elizabeth, Empire Families: Britons and Late Imperial India (Oxford: Oxford University Press, 2004), pp. 72–109Google Scholar.

¹⁰ In 1990, a Christian woman called Mary Sonia Zachariah could not get divorced on the basis of physical cruelty, since the Indian Divorce Act 1869, which applied to Christians, required adultery of the spouse in all cases, but coupled with an aggravating cause, such as cruelty, for the wife. The Kerala High Court found this unconstitutional gender discrimination, and recommended legislative action, failing which, it declared the law unconstitutional in 1995. A similar judgement was received in the Bombay High Court in 1997. Agnes, Flavia, Law and Gender Inequality: the Politics of Women's Rights in India (New Delhi: Oxford University Press, 1999), pp. 154–156Google Scholar.

¹¹ See Religion and Society, Special issue on the Uniform Civil Code, 43: 3 (September 1996), which brought together the opinions of the most committed Christian advocates of reform, including Jyotsna Chatterji, as well as more critical views. The Indian Divorce (Amendment) Act 2001 modified the Special Marriage Act 1954, Hindu Marriage Act 1955, the Parsi Marriage and Divorce Act 1936 and the Indian Divorce Act 1869, the last being relevant to Christians. ‘Marriage law reforms’, Government of India, Press Information Bureau. Visit http://pib.nic.in/feature/feyr2001/fnov2001/f221120011.html, last accessed 15 December 2009. Many Christian activists perceived the legislation to be skewed, and imposed with undue haste by a BJP-led government. See Dayal, John, A Matter of Equity: Freedom of Faith in Secular India (New Delhi: Anamika, 2007), pp. 222–230Google Scholar.

¹² The standard periodization posits a period of intense Evangelical Christian (combined with secular Utilitarian) influence on British imperial policy in the first half of the nineteenth century, followed by the ‘Mutiny’ of 1857, which was interpreted widely as a religious reaction from Indians, and which apparently led to a settled policy henceforth of non-interference in religion. Stokes, Eric, The English Utilitarians and India (Oxford: Clarendon, 1959)Google Scholar; Metcalf, Thomas, Aftermath of Revolt: India 1857–70 (Princeton: Princeton University Press, 1964)Google Scholar.

¹³ Viswanathan, Gauri, Masks of Conquest: Literary Studies and Colonial Rule in India (New York: Columbia University Press, 1989)Google Scholar; Studdert-Kennedy, Gerald, Providence and the Raj: Imperial Mission and Missionary Imperialism (New Delhi, London: Sage, 1998)Google Scholar.

¹⁴ Bhargava, Rajeev (ed.), Secularism and its Critics (New Delhi: Oxford University Press, 1998)Google Scholar.

¹⁵ Geoffrey Bindman, ‘From Race to Religion: the Next Deterrent Law?’ http://www.opendemocracy.net/faith-europe_islam/article_2049.jsp, last accessed 15 December 2009. Bindman was legal adviser to the Commission for Racial Equality, involved in a case in 1982–1983 about a Sikh boy Gurinder Singh Mandla, who was refused permission to attend his private school if he wore his turban. Mandla's case for discrimination failed in the county court and the Court of Appeal, where it was stated that only racial discrimination was actionable, not religious discrimination. The House of Lords reversed these decisions in favour of Mandla, deciding that Sikhs were a ‘race’ rather than purely a ‘religion’.

¹⁶ The last applying to Zoroastrians of Persian origin, known in India as ‘Parsis’.

¹⁷ Rankin, G.C., ‘The Personal Law in British India’ in Journal of the Royal Society of Arts, Vol. 89 (May, 1941), pp. 426–442Google Scholar.

¹⁸ With the Hindus, the label includes those that are heterodox in their beliefs, support non-Hindu religious groups or are socially and ritually ostracized from a Hindu caste/sect/group. As Marc Galanter explains, the definition of ‘religious identity’ is in reality a description of civil status, not of religious belief or social behaviour. Galanter, Marc, ‘Hinduism, Secularism and the Judiciary’, in Galanter, Marc, Law and Society in Modern India (New Delhi: Oxford University Press, 1997), pp. 237–258Google Scholar, at p. 241. Similarly, a person is assumed to be Muslim if his or her father is Muslim, unless he or she explicitly renounces the faith. Fyzee, Asaf A.A., Outlines of Muhammadan Law (4th edn, New Delhi: Oxford University Press, 1999), pp. 60–64Google Scholar.

¹⁹ See Sangari, Kumkum, ‘Gender Lines: Personal Laws, Uniform Laws, Conversion’, Social Scientist, Vol. 27, Nos 5/6 (May–June, 1999), pp. 17–61CrossRefGoogle Scholar.

²⁰ For the argument that state-centred legal pluralism was distinctly modern, and that it did not consist of ‘stacked’ laws with clearly distinguished spheres, see Lauren Benton, Law and Colonial Cultures, pp. 1–30.

²¹ The Indian (Christian) Marriage Act 1872, Indian Divorce Act 1869 (amended 2001), Indian Succession Act 1865, and Guardians and Wards Act 1892.

²² In the sense that the British then possessed an unsubstantial political role.

²³ Larby, C. J. B., ‘The Centenary of the High Courts of Calcutta, Bombay and Madras’ in The International and Comparative Law Quarterly, Vol. 12, No. 3 (July, 1963), pp. 1044–1048CrossRefGoogle Scholar.

²⁴ The sale deed executed between the Mughal provincial government and the Company during the transfer of the zamindari of Calcutta in 1694 did not explicitly mention judicial powers, except perhaps with reference to the Company being accorded talluqdar status. Hasan, Farhat, ‘Indigenous Cooperation and the Birth of a Colonial City: Calcutta, c. 1698–1750’ in Modern Asian Studies, Vol. 26, No. 1, (February 1992), pp. 65–82, at p. 69CrossRefGoogle Scholar. This revealed a certain Mughal approach to legal authority: the police and judicial powers which all Mughal zamindars exercised, were implicitly acknowledged rather than formally delegated to these ‘little kings’. On zamindars under Mughal rule, and their legal powers, see Singha, Radhika, A Despotism of Law: Crime and Justice in Early Colonial India (New Delhi: Oxford University Press, 1998), pp. 1–6Google Scholar. At the same time, such informal legal delegation proved to be a potent source of jurisdictional conflict.

²⁵ Register of Proceedings of the Mayor's Court, Bombay January–September 1830, p. 120, P/416/103, Asia, Pacific and Africa Collections, British Library, London (henceforth, APAC).

²⁶ Bombay Public Proceedings, 26 June 1730, P/341/7, pp. 75–80, APAC.

²⁷ For a discussion of natural law theory, especially as developed by Pufendorf's disciples in the late seventeenth and early eighteenth centuries in Europe, see Hochstrasser, T. J., Natural Law Theories in the Early Enlightenment (Cambridge: Cambridge University Press, 2000)CrossRefGoogle Scholar.

²⁸ Register of Proceedings of the Mayor's Court, Bombay 1 July 1830, pp. 140–144.

²⁹ Bombay Public Proceedings, 10 July 1730, pp. 89–95.

³⁰ Court Book, April 1730 to March 1732, B/61, pp. 483, 509–510, APAC.

³¹ Their efforts make sense in the context of David Lieberman's discussion of the efforts of late-eighteenth-century British jurists to override the rules of evidence in English common law, whereby an infidel who could not swear a Christian oath, had no locus standi in court. Lieberman discusses how natural law was used to argue for an universal rule of evidence beyond (religious) prescriptions that obviously deterred the course of justice; the Mayors’ Courts efforts in India seemed not so much to override religious law, as to expand it beyond Christianity, a radical innovation which has received little attention from historians. Lieberman, David, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge: Cambridge University Press, 1989), pp. 88–98CrossRefGoogle Scholar.

³² Fawcett, Charles, The First Century of British Justice in India (Oxford: Clarendon, 1934), pp. 222–224Google Scholar.

³³ Ilbert, Courtenay, ‘Application of European Law to the Natives of India’ in Journal of the Society of Comparative Legislation, Vol. 1 (1896–1897), pp. 212–226, at p. 213Google Scholar.

³⁴ Derrett suggested that the attraction of British courts derived from their being less arbitrative, and hence able to provide a more conclusive victory than a traditional forum which attempted to restore social harmony rather than rigidly separate right from wrong. Derrett, J. D. M., ‘The Administration of Hindu Law by the British’, Comparative Studies in Society and History, Vol. 4, No. 1 (1961), pp. 10–52CrossRefGoogle Scholar.

³⁵ Indian corruption of ‘Frank’, i.e. European, but used by Holwell in the sense of a mixed-race person of partial European ancestry.

³⁶ Firminger, W. K., ‘Some Records Illustrative of the Mayor's Court–II’, Bengal: Past & Present, Vol. 10 (January–June 1915), pp. 123–145, at pp. 124–125Google Scholar.

³⁷ A term that the compiler (Firminger) glossed as a corruption of mestiço, or ‘mixed’ in Portuguese.

³⁸ Ibid., pp. 128–31.

³⁹ Ibid., pp. 131–33.

⁴⁰ Letter from the Mayor's Court to President and Governor in Council, Fort William, in ibid., pp. 133–135.

⁴¹ Holwell to Council, 16 June 1755, ibid., pp. 135–143.

⁴² Ibid., p. 136.

⁴³ Ibid., p. 142.

⁴⁴ Charles Fawcett, The First Century, pp. 208–209.

⁴⁵ For a discussion of these events, see Marshall, P. J., Bengal: the British Bridgehead (Cambridge: Cambridge University Press, 1987), pp. 70–92Google Scholar.

⁴⁶ An old scholarly piece on the role of natural law in shaping common law is O'Sullivan, Richard, ‘Natural Law and Common Law’ in Transactions of the Grotius Society, Vol. 31 (1945), pp. 117–138Google Scholar.

⁴⁷ See Robert Travers, Ideology and Empire, pp. 191–200.

⁴⁸ See Derrett's comments on the ‘peculiar’ provisions of Hastings’ plan, the limited set of topics on which shastra was supposed to provide sources of law, and his speculations on why this particular set of topics was chosen over others. J. D. M. Derrett, Religion, Law and the State in India, pp. 233–234.

⁴⁹ Peter J. Marshall, Bengal: the British Bridgehead, p. 93.

⁵⁰ On Reza Khan's career, see Khan, Abdul Majed, The Transition in Bengal 1756–1775: a Study of Muhammad Reza Khan (Cambridge: Cambridge University Press, 1969)CrossRefGoogle Scholar.

⁵¹ Moon, Penderel, Warren Hastings and British India (London: Hodder & Stoughton, 1947), pp. 70–85Google Scholar.

⁵² Nizamat (involving military rule as well as criminal jurisdiction) was in theory not the province of the Company as diwan, but of the Nawab, whose capital remained at Murshidabad. Very soon however, the Company did take over complete political power, as well as control over the nizamat adalats, such that Muslim law officers were relegated to advisory capacity in 1791. See M. P. Jain, Outlines of Indian Legal History, pp. 58–66, 118–144. For change in the substance of criminal law, see Radhika Singha, A Despotism of Law, pp. 1–32.

⁵³ Fort William Letter of 13 April 1772, quoted in Abdul Majed Khan, The Transition in Bengal, pp. 270–271.

⁵⁴ Reza Khan's statement, 4 May 1772, quoted in ibid., p. 271. Unfortunately, information is inadequate regarding the experience of non-Muslims in the pre-colonial Mughal courts. If Mughal practice was at all similar to that of the Ottomans, Mughal qazis would have applied Islamic law to all who chose to submit their matrimonial and inheritance disputes to their courts, otherwise they did not interfere in the intra-community resolution of disputes. al-Qattan, Najwa, ‘Dhimmīs in the Muslim Court: Legal Autonomy and Religious Discrimination’ in International Journal of Middle East Studies, Vol. 31, No. 3 (August, 1999), pp. 429–444CrossRefGoogle Scholar.

⁵⁵ Chris Bayly has argued that the Mughal administrative elite attempted, in the early days of British colonial rule in India, not only to transfer their skills to the new rulers, but also ‘to instruct the British in good government’, referring in particular to Muhammad Reza Khan, and his protégé, Ali Ibrahim Khan, who later became the chief judge of Benares. Bayly, C.A., Empire and Information: Intelligence Gathering and Social Communication in India, 1780–1870 (Cambridge: Cambridge University Press, 1999), pp. 80–83Google Scholar.

⁵⁶ Robert Travers, Ideology and Empire, pp. 118–123.

⁵⁷ The above is an argument regarding the nature of the personal laws which is distinct from, but based on the numerous studies that have shown how colonial codification projects aimed at providing substantive Hindu and Muslim laws in effect displaced traditional Indian legal practice and its traditional specialists. For prominent examples of such works of scholarship, see J. D. M. Derrett, Religion, Law and the State in India, pp. 225–320; Anderson, Michael R., ‘Islamic Law and the Colonial Encounter’ in Robb, Peter and Arnold, David (eds), Institutions and Ideologies: a SOAS South Asia Reader (Richmond: Curzon, 1993), pp. 165–185Google Scholar.

⁵⁸ Robert Travers, Ideology and Empire, pp. 181–206. The case discussed was one of a Muslim widow who claimed entire possession of her husband's estate on the basis of a will, as opposed to the claims of the husband's nephew as the principal male successor. Defeated in the provincial diwani adalat when the qazi and mufti, the Muslim law officers, decreed against her and even evicted her, she proceeded to Calcutta to file her case in the Supreme Court in 1778, which found in her favour in 1779 and indicted the provincial administration for illegitimately delegating their judicial duties to the Muslim law officers, and for victimizing a helpless Asiatic woman.

⁵⁹ One of these imperatives was more summary methods for dealing with ‘law and order’ problems, such as ‘Thagi’, which led to framing homicide as murder rather than as a negotiable civil cause, as in Islamic law. See Radhika Singha, A Despotism of Law, pp. 1–32.

⁶⁰ In fact, the English law of marriage was canon law, as modified by certain statutes, such as Lord Hardwicke's Act of 1753. Helmholz, R. H., Marriage Litigation in Medieval England (London, 1974), p. 3Google Scholar; Baker, J. H., An introduction to English legal history (3rd edn, London, 1990), pp. 567–568Google Scholar; Stone, Lawrence, Road to divorce: England 1530–1987 (Oxford, 1990), pp. 353–390CrossRefGoogle Scholar. On the changing jurisdiction over inheritance causes, Bonfield, Lloyd, ‘Testamentary Causes in the Prerogative Court of Canterbury, 1660–96’ in Brooks, Christopher and Lobban, Michel (eds), Communities and Courts in Britain, 1150–1900 (London: Hambledon Press, 1997), pp. 133–154Google Scholar.

⁶¹ This was true of India, as well as in the Straits Settlements.

⁶² ‘Letters Patent establishing the Supreme Court at Fort William, 1774’, in Banerjee, Anil Chandra, Indian Constitutional Documents 1757–1947 (4th edn, 4 vols., Calcutta: A. Mukherjee & Co., 1974), pp. 36–43Google Scholar. Similar courts were set up in Madras in 1800 and Bombay in 1823.

⁶³ Zoroastrians who migrated from Iran to India in the seventh century, and settled in rural Gujarat, later moving into Bombay as commercial entrepreneurs.

⁶⁴ On the grounds that, at sixteen, when most Parsis were married, he should be considered an adult. ‘Conversion of two Parsis, and prosecution of the Rev. John Wilson, D.D., on a writ of habeas corpus, before the Supreme Court of Judicature at Bombay. Crown side’, Oriental Christian Spectator (June, 1939), pp. 209–291.

⁶⁵ Veena Das has used the judgement in this case to underline the political construction of paternity, which was presented as a natural state. Zanocky's case warrants reconsidering the conflation of parental right with paternity in British legal thought. Das, Veena, ‘Secularism and the Argument from Nature’, in Scott, David and Hirschkind, Charles (eds), Powers of the Secular Modern: Talal Asad and His Interlocutors (Stanford: Stanford University Press, 2006), pp. 93–112Google Scholar.

⁶⁶ The Bezonji, Queen v. Shapurji and Edalji, Bezanji, 28 February 1843, Indian Decisions (Old Series) (Madras: T.A. Venkasawmy Row, 1912), Vol. 4, pp. 84–94Google Scholar.

⁶⁷ On the creation of the Parsi panchayat as a ‘traditional’ judicial body under British patronage, see Maneck, Susan Stiles, The Death of Ahriman: Culture, Identity and Theological Change among the Parsis of India (Bombay: K.R. Cama Oriental Institute, 1997), pp. 160–181Google Scholar. The panchayat was opposed to bigamy, but a nouveau-riche faction within the community, represented by young men such as Ardasir, were defiant of this rule because they wished to establish a more companionate second marriage for themselves, being dissatisfied with their uneducated first wives, usually married in childhood. On the Ardasir case, Ibid., pp. 173–175.

⁶⁸ Ardaseer Cursetjee v. Perozeboye, (1856) Moore's Indian Appeals, 348–392.

⁶⁹ For a comprehensive documentation of this project, see Bengalee, Sorabjee Shapoorjee, The Parsi Marriage and Divorce Act 1865 (Bombay: Duftur Ashkara Press, 1868)Google Scholar. I am grateful to Mitra Sharafi for this reference, and for alerting me to the dynamic legal history of Parsis in India.

⁷⁰ The draft prepared by the Parsi Law Association, consisting of modern, legally active Parsi leaders, demanded dissolution of marriage following out-conversion, but this was vetoed by the Select Committee of the Governor-General's Council, presided over by Henry Maine. See papers connected with an Act to define and amend the law relating to marriage and divorce among the Parsees, XV of 1865, Government of India, Bills and Acts, L/PJ/5/7, APAC. In the amended Parsi Marriage and Divorce Act, III of 1936, religious change was re-inserted as a ground for seeking divorce, although not for automatic dissolution, since Parsi activists were also concerned with preventing the avoidance of marital duties (including monogamy) by conversion to Hinduism or Islam. Balsara, Pestanji Phirozshah (ed.), The Parsi Marriage and Divorce Act, (Bombay: Jehangir B. Karani's Sons, 1936)Google Scholar. As for inheritance, Parsi activists appear to have concentrated their energies on barring access to Parsi charitable trust funds (rather than on private estates) for those who did not in their opinion qualify as Parsi. For a path-breaking study of Parsi self-definition in and through the Anglo-Indian legal system, and the rise of race in the early twentieth-century, see Mitra June Sharafi, ‘Bella's case: Parsi identity and the law in colonial Rangoon, Bombay and London, 1887–1925’ (unpublished Ph.D. thesis, University of Princeton, 2006).

⁷¹ M. P. Jain, Outlines of Indian Legal History, pp. 405–414. There still needs to be written a sufficiently nuanced and comprehensive ideological and institutional history of the Law Commissions. For a useful discussion focussed on criminal law, see Elizabeth Kolsky, ‘Codification and the Rule of Colonial Difference’.

⁷² Anglo-Indians.

⁷³ Copies of the Special Reports of the Indian Law Commissioners, Parliamentary Papers, House of Commons (henceforth PP) 1842, (585) XXX, pp. 227–866, V ‘Power of a master over his slave’.

⁷⁴ ‘On the petitions of the East Indians and Armenians, B VIII, ibid., p. 671.

⁷⁵ The Vice-President in Council to the Court of Directors, Letter 393, 3 January 1832, in C. H. Philips (ed.), The Correspondence of Lord William Cavendish Bentinck, II: 748–751.

⁷⁶ ‘Regulations passed by Governments of Bengal, Fort-St.-George and Bombay, 1832’, PP, 1833 (755) XXV, pp. 352–353.

⁷⁷ Letter from Bishop of Bombay to Governor of Bombay, 28 March 1849, India Legislative Consultations, 11 April 1850, no. 57 (unpaginated), P/207/59, APAC.

⁷⁸ Minutes of members of Council, Ibid., no. 59.

⁷⁹ Highest civil ‘Company’ court in a province.

⁸⁰ Ibid., Nos 61–64.

⁸¹ The Memorial of the Hindoo Inhabitants of Bengal, Behar and Orissa to the Governor-General of India in Council against the Proposed Act for altering the Hindoo Law of Inheritance (Calcutta: Englishman Press, 1850), printed pamphlet, Ibid., no. 80.

⁸² Banerjea, K. M., Remarks on the Speech of the Earl of Ellenborough in the House of Lords, on the Bengal Petition against Act XXI of 1850 of the Government of India (Calcutta: R.C. Lepage & Co., 1853), pp. 3–6Google Scholar. Banerjea summarized Ellenborough's speech before making his comments.

⁸³ Ghosha, Ramachandra, A Biographical Sketch of the Rev. K.M. Banerjea: Missionary, Scholar, Patriot (2nd edn, Calcutta, 1980), pp. 14–22Google Scholar.

⁸⁴ K. M. Banerjea, Remarks on the Speech of the Earl of Ellenborough, p. 14.

⁸⁵ A Reply to K.M. Banerjea's Remarks on the Speech of the Earl of Ellenborough in the House of Lords delivered on the 26^th of May 1853 against the Act XXI of 1850 of the Government of India. By a Member of the Committee appointed by the Hindu inhabitants of Bengal, Behar and Orissa, for Petitioning Parliament against the aforesaid Act. (Calcutta, P.S. D'Rozario and Co., 1853).

⁸⁶ India Legislative Consultations, 9 April 1850, No. 86.

⁸⁷ Thomas Metcalf, Aftermath of Revolt, pp. 27–28.

⁸⁸ Even if these statuses were themselves the product of evolving political and social relations, as Washbrook argued in his ‘Law, State and Agrarian Society’.

⁸⁹ Chandra Mallampalli, Christians and Public Life, pp. 21–37.

⁹⁰ After much petitioning, and several reversals, rather than through a simple assumption of racial similarity. The Vice-President in Council to the Court of Directors, Letter 393, 3 January 1832, in C. H. Philips (ed.), The Correspondence of Lord William Cavendish Bentinck, pp. 748–751; Memorial of the Undersigned Christian Inhabitants of the Presidencies of Bengal and Agra, Chiefly Descended from British-born Subjects of the Crown on the Father's Side and on the Mother's from Natives of India; also of the Christian Foreigners, and their Descendants, Settled in the British Possessions in India, now Governed by the East India Company (Calcutta, 1850).

⁹¹ Abraham v. Abraham, Moore's India Appeals, Vol. 9 (1863), pp.195–255.

⁹² Chandra Mallampalli, Christians and Public Life, pp. 38–58.

⁹³ Gauri Viswanathan, Outside the Fold, pp. 111–117.

⁹⁴ Report of the Indian Law Commission, 1879 (Calcutta, 1880), pp. 9–18.

⁹⁵ Act X of 1865 Indian Succession Act, and connected papers, in India Bills, Objects and Reasons, Part 3, 1865, L/PJ/5/7, APAC.

⁹⁶ I do not agree with Mallampalli that the application of this law to Indian Christians revealed the misguided British belief that those who shared their religion would be apt recipients of British law. The process worked in the reverse: the Indian Succession Act aimed to be a universal law, applied to those for whom specific exemptions had not been made.

⁹⁷ Government of India Legislative Proceedings, 22 August 1865, No. 41, pp. 924–926, P/208/11; Government of India Legislative Proceedings, 8 February 1866, No. 8, pp. 49–50, 19 April 1866, No. 6, pp. 118–143, P/436/53, APAC.

⁹⁸ Griffith, William, The Indian Succession Act: Hindu Wills Act, Parsi Succession Act, Mahometan Succession and Probate and Administration Act, with the other Acts and rules regulating the disposition and devolution of property of death and with commentaries thereon and forms used in practice (Madras: Higginbotham & Co., 1898)Google Scholar.

⁹⁹ Government of India Legislative Proceedings, 19 April 1866, No. 6, pp. 126–128, P/436/53, APAC.

¹⁰⁰ By Section 105 of the Indian Succession Act: ‘No man having a nephew or niece or any nearer relative shall have power to bequeath any property to religious or charitable uses, except by a will executed not less than twelve months before his death, and deposited within six months from its execution in some place provided by law for the safe custody of the wills of living persons.’ William Griffith, The Indian Succession Act, pp. 67–68. For a record of the efforts of the Government of India to extend a homogenous law of wills to all Indians, and a predictable disintegration of the effort through the preservation of special privileges for and constraints upon Hindu and Muslim testators, see Government of India Legislative Proceedings, August 1870, Nos 56–111, pp. 79–131, P/436/58, APAC.

¹⁰¹ Many Christians continued to claim access to Hindu inheritance law, as in Tellis versus Saldanha, Indian Law Reports, (1886) 10 Mad. 69–73, where it was denied, and in Francis Ghosal versus Gabri Ghosal, Indian Law Reports (1907) 31 Bombay 25–31, where it was accepted. But it remained applicable for Indian Christians who could not secure express exemption, on the basis of customary practices, such as, among others, the Christians of Coorg, and Punjab. Agnes, Flavia, Law and Gender Inequality: the Politics of Women's Rights in India (New Dehi, 1999), pp. 148–14Google Scholar; Ghose, A.C., The Indian Succession Act (Act XXXIX of 1925), (Calcutta: M.C. Sarkar & Sons, 1926), pp. 11–12Google Scholar.

¹⁰² Mukerji, S. C., ‘Law regarding Indian Christians’ in The Report of the Third Session of the All India Conference of Indian Christians, held in Madras, December 1916, (Madras, 1917), pp. 40–47Google Scholar, United Theological College Archives, Bangalore.

¹⁰³ This caused certain problems for Jews and Quakers, whose religious tenets did not include priests. Henriques, H.S. Q. ‘Jewish Marriages and the English Law’ in The Jewish Quarterly Review, Vol. 20, No. 3 (April, 1908), pp. 391–449CrossRefGoogle Scholar.

¹⁰⁴ An Act for the better prevention of clandestine marriage, 26 Geo. II c. 23 of 1753.

¹⁰⁵ The Clauses providing the exceptions were 6, 17 and 18.

¹⁰⁶ An Act to remove doubts as to the validity of certain marriages had and solemnized within the British territories in India, 1818, 58 Geo. III c. 84.

¹⁰⁷ In the sense of a privileged legal relationship between a particular church and the state, such as the Anglican church in England, and at the time, in Wales and Ireland as well.

¹⁰⁸ Lord Bishop of Calcutta to the Governor-General, 21 August 1833, in Royal Commission to inquire into State and Operation of Law of Marriages, PP 1850 (1203) XX, pp. 363–430, at pp. 391–395.

¹⁰⁹ Legislative Council, Calcutta, to the Court of Directors, 3 December 1838, forwarding the petition of the Dissenting Ministers, Nos 6–7, in ibid., pp. 400–401.

¹¹⁰ Letter from the Bishop of Calcutta to the President in Council, 30 January 1839, No. 15, in ibid., pp. 405–40.

¹¹¹ For his support of missions to India, in particular to the Church Missionary Society, and his personal enthusiasm for the conversion of Indians, see Bateman, Josiah, The Life of the Rt. Rev. Daniel Wilson (2 vols., London, 1860)Google Scholar.

¹¹² Marriage Act 1836, 6 & 7 Will. IV c. 85. For some indication of Nonconformist politics and Anglican clerical opposition preceding this legislation, see Anderson, Olive, ‘The Incidence of Civil Marriage in Victorian England and Wales’ in Past and Present, 69 (November 1975), pp. 50–87CrossRefGoogle Scholar.

¹¹³ Report of the Royal Commission to inquire into State and Operation of Law of Marriages, pp. 367–370.

¹¹⁴ An Act for Marriages in India, 14 & 15 Vic. Cap. XL of 1851.

¹¹⁵ Judicial Letters from India, 1852, pp. 171–173, L/PJ/3/291, APAC.

¹¹⁶ Read: ‘by exclusion Christian’.

¹¹⁷ Act XXV of 1864 and related papers have so far proved untraceable in the India Office Records; it appears that they were lent to the Colonial Office for reference. The present account is based on the papers relating to Act V of 1865, which described the failings of the previous law.

¹¹⁸ Government of Fort St George to Government of India, 17 January 1865, in Indian Marriage Act V of 1865 and connected papers, Government of India, Bills and Acts, 1865, Part 3, L/PJ/5/7, APAC.

¹¹⁹ Although subsequent discussion over divorce would reveal that their exemption was of unsure implication.

¹²⁰ ‘Indian Marriage Act, 1872 and related papers’ in Government of India, Bills and Acts, 1872 Part III, L/PJ/5/16, APAC.

¹²¹ These debates spilled over into a number of widely divergent ideological concerns, in which, as scholars have shown, the real experiences of women were treated as no more than the turf for male contests. See Sarkar, Tanika, ‘Conjugality and Hindu Nationalism: Resisting Colonial Reason and the Death of a Child-Wife’ in Sarkar, Tanika, Hindu Wife, Hindu Nation: Community, Religion and Cultural Nationalism (London: Hurst & Co., 2001), pp. 191–225Google Scholar; Sinha, Mrinalini, Colonial Masculinity: the ‘Manly’ Englishman and the ‘Effeminate’ Bengali in the Late Nineteenth Century (Manchester: Manchester University Press, 1995)Google Scholar; Chandra, Sudhir, Enslaved Daughters: Colonialism, Law and Women's Rights (Delhi: Oxford University Press, 1998)Google Scholar.

¹²² Minutes of Evidence given by David Hill, of the Judicial Department of the East India Company, in Report of the Royal Commission to inquire into State and Operation of Law of Marriages, pp. 379–381.

¹²³ But not divorced, since there was no divorce law applicable to Christians in India before 1866.

¹²⁴ Except Parsis after 1865.

¹²⁵ Among the earliest petitioners was the Scottish Missionary, John Wilson, who worked in Bombay, and who referred to his experience with Parsi pupils who had converted to Christianity. Report of the Select Committee on the Bill to legalize, under certain circumstances, the re-marriage of native converts to Christianity, and associated papers, pp. 18–42, Government of India, Bills and Acts, 1866, L/PJ/5/8, APAC.

¹²⁶ Section 18 of the Act as it was passed in 1866 required establishing facts regarding consummation, which determined subsequent procedure.

¹²⁷ Government of India Legislative Proceedings, 18 August 1865, No. 39–40, pp. 918–923, P/208/11, APAC. As the case of re Millard showed, the Catholic Church did insist on going its own way, with occasional adverse results for its members. A Catholic priest was convicted for abetting bigamy when he performed the marriage of a paraiyan (dalit or formerly untouchable caste) woman who had converted to Christianity in childhood, had married a non-Christian paraiyan man, and was subsequently abandoned by him. Indian Law Reports, re Millard, (1868) 10 Madras, 218–222. The case underlined forcefully the modern state's refusal to recognize alternative laws and tribunals with jurisdiction over marriage and its dissolution.

¹²⁸ From the Lord Bishop of Calcutta to the Viceroy of India, forwarding Krishna Mohan Banerjea's printed pamphlet, as well as letters from Tara Chand and Reverend R. Winter of the S. P. G. mission to Delhi, in, Report of the Select Committee on the Bill to legalize, under certain circumstances, the re-marriage of native converts to Christianity, and associated papers, pp. 18–42.

¹²⁹ Ibid., pp. 43–45.

¹³⁰ Ibid., pp. 51–54. On Satthianadhan and the history of this illustrious Tamil Christian family, see Jackson, E.M., ‘Glimpses of a Prominent Indian Christian Family of Tirunelveli and Madras, 1863–1906: Perspectives on Caste, Culture, and Conversion’ in Frykenberg, R. E. (ed.), Christians and Missionaries in India: Cross-cultural Communication since 1500 (Michigan: W.B. Ferdmans, 2003), pp. 315–335Google Scholar.

¹³¹ ‘Petition of the Mahomedan inhabitants of the town and suburbs of Calcutta’, in Ibid., pp. 137–141.

¹³² This was pointed out by a judge from Dhaka, referring to a case where the deserting wife of a Christian convert had, subsequent to leading a ‘dissolute’ life, disappeared without trace. Under-Secretary to Government of India to Officiating Secretary Government of Bengal, 9^th September 1868, acknowledging receipt of the letter with enclosure, Government of India Legislative Proceedings 1868, 12 September, No. 6, p. 274, P/436/55, APAC.

¹³³ On the British divorce law, see Baker, J.H., An Introduction to English Legal History (3rd edn, London: Butterworths, 1990), pp. 567–568Google Scholar; Stone, Lawrence, Road to Divorce: England 1530–1987 (Oxford: Clarendon, 1990), pp. 353–390CrossRefGoogle Scholar; Anderson, Olive, ‘Hansard's Hazards: an Illustration from Recent Interpretations of Married Women's Property Law and the 1857 Divorce Act’ in The English Historical Review, Vol. 112, No. 449 (November 1997), pp. 1202–1215CrossRefGoogle Scholar.

¹³⁴ Rattigan, Henry, The Law of Divorce Applicable to Christians in India (the Indian Divorce Act) (2nd edn, Lahore: Unniversal Book Agency, 1936), p. 105Google Scholar. This provision was specific to Indian law, with no counterpart in British law, since under British law a second marriage was necessarily a criminal offence.

¹³⁵ Zaburdust Khan versus his wife (1870) 2 N.W. 370.

¹³⁶ Aiyar, M. P. Duraisamy, Memories of Sir T. Muthusami Ayyar: First Indian Judge of the High Court of Madras (Tanjore, n.d. [1912])Google Scholar.

¹³⁷ Thapitha Peter versus Thapitha Lakshmi, Indian Law Reports (1894), 17 Madras, pp. 235–246.

¹³⁸ Henry Rattigan, The Law of Divorce, pp. 34–35.

¹³⁹ Athavale, B. N., ‘The present law regarding Indian Christians—is legislation necessary?’, The Report of the First Session of the All India Conference of Indian Christians, held in Calcutta, December 1914 (Madras, 1915)Google Scholar, Appendix I, United Theological College Archives, Bangalore. Athavale was not aware of the recent Calcutta judgement: it was pointed out in subsequent meetings of the A.I.C.I.C.

¹⁴⁰ Such as the requirement to register any bequest to a religious institution a year in advance, or the loss of custody by a Hindu following conversion.