Law, Colonial State and Gender /

Law, Colonial State and Gender /

Law, Colonial State and Gender I A crucial area that requires analysis is the relationship between the colonial state, law, family, caste panchayats and gender in the nineteenth century. Unfortunately, there has so far been no work that has focused on this. Our exploration of these themes therefore cannot answer questions so much as raise them. To begin with we need to ask: in what way did the new laws of the colonial state affect women and how was this similar or different for men? Did the colonial state regard women as its direct subjects or as mediated through the family? How far did women remain under the authority of the family and the caste? What was the relationship between the caste panchayat and the larger legal culture of the second half of the nineteenth century? What was the relationship between 'Hindu' law,! customary law, and statutory law? How did these affect women? And finally was the new legal culture enabling for women or was it more repressive than textual or customary law?

Many of the questions that need asking will remain only partially raised in my preliminary analysis of three legal issues of gender in nineteenth century Maharashtra: the law on widow remarriage, on conjugality, and on the age of consent, but the questions around them will, I hope, be pursued by others in the full-length study they deserve.

The Hindu Widows Remarriage Act of 1856 was the second intervention by the colonial state in a matter pertaining to 'custom' with the sanction of religion. Unlike the act on sati which banned a practice, the Widows Remarriage Act was meant to remove a ban and enable widows to remarry where they were not permitted to do so. Lucy Carroll? has provided an exhaustive and illuminating

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account of the consequences of this act; here we will concentrate on drawing attention to certain issues which emerged from its interpretation.

First, it is important to note that the act, possibly unintentionally, effectively reversed the principle of distinctiveness and discreteness of customs of different castes. Since the prevalence or otherwise of certain customs such as enforced widowhood had been in many ways the basis of the hierarchy of castes, as argued earlier, the new act was bound to have certain repercussions on gender and on culture. However, as Carroll points out, the British appear to have believed that they were legislating in a situation of tabula rasa, creating a practice where none had existed.? This innocence may be attributable to the fact that, by and large, only the high castes were visible to the British and to the middle-class reformers; thus, when legislation was introduced it tended to extend the biases and the ideology of textual Hindu law to apply to those who had been either outside or on the margins of such customs earlier. (This process of incorporating more and more people from the margins was not new; it can be traced as far back as Manu who, while conceding the need to respect custom and usage of families and particular communities, also stated that the people should learn their several usages from 'a Brahmana born in that country'. Thus, customary rules were altered constantly in spirit, and sometimes in tenor, greatly through Brahmanical expositors.)4

The ambiguities and contradictions inherent in attempting to mesh textual Hindu law and statutory law, the issue of its applicability, especially in the matter of widow remarriage, led to virtually three-quarters of a century of 'dramatic judicial controversy'... The controversy focused on the penalty clauses included in the Act whereby the widow forfeited her claim to the property of the dead husband when she remarried, whereas in many castes which had permitted widow remarriage it was not necessary to do so. The new law regarded her as if she had died for purposes of claiming an interest in her deceased husband's property. An early judgement had laid down that remarriage was equivalent to the 'civil death of the widow'.® Thus, as the new law was interpreted in the High Courts of Calcutta, Madras and Bombay, the customary law on the relationship between widowhood and property among certain castes was displaced and in its stead

Brahmanical values which held widow remarriage in disrepute came

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to impose the penalty of forfeiture for violating the norm of the 'chaste, ascetic, prayerful widow'.

In the decades during which the British Indian courts attempted to resolve the issue of a widow's remarriage and her relationship to the property of her first husband within 'Hindu' law, as defined in the new statutes, both British and Indian judges treated Hindu law as complete and fixed, whereas it was extremely fluid even at the time when its fixation was sought. This was largely because what comprised Hindu law was debatable and was variously understood as Brahmanical textual law, or customary law, or a mixture of both.

Further, the relationship between the two was itself unclear.

Changing notions of what constituted Hindu law, particularly when it applied to gender codes, were best captured by the contradictory interpretations of the Widows Remarriage Act. Since the Act had inscribed forfeiture into the clauses, judges had a trying time explaining its merits and its consistency with the conceptions of 'Hindu' law. This led to a spate of opinions and differing judgements.

First, it became necessary to define the nature of wifehood in Hindu law and thereafter to define the nature of the widow's relationship to her dead husband as well as his property, and further to locate the purpose for which she was given the right to enjoy it.

The difficulties of ascertaining many of the tricky questions the Hindu law on remarriage entailed were recognised by Justice

Wilson who pointed out that second marriage was a 'thing' the textual authorities had not contemplated. Nevertheless, the position was taken that the widow enjoyed her dead husband's property based on Brihaspati's text which stated, 'Of him whose wife is not deceased half the body survives. How then should another take his property while half his person is alive? Thus in her capacity as half the body of her deceased husband the widow is capable of conferring spiritual benefit upon him by her positive acts; she inherits as she continues to be his patni.' But precisely because she is half the body of her deceased husband, and enjoys his property in that capacity, she could not also be half the body of another person following remarriage; she must cease to be half the body of one before she could become half the body of another. Forfeiture of the property of the first husband was clearly necessary and it was in accordance with the principles of Hindu law because the 'fiction' upon which the right of the widow had been based now ceased

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with her remarriage.® The fact that the judges could argue that forfeiture was in accordance with Hindu law when the remarriage itself for the uppermost castes had not been in accordance with it, was an anomaly which appears as a running thread in the contradictory positions taken by the judges, as we shall see, but for the moment the judges chose to bypass it as they had enough contradictions on their hands in the 'half the body' metaphor.

The other major problem confronting the judges was the nature of wifehood among the lower castes or Shudras where customary law had permitted remarriage and further where, among many castes, the remarrying widow did not forfeit her interest in the deceased husband's property. Justice Mukherji perceived a basic difference in the nature of wifehood among the lower castes: in his perception they clearly did not believe in the doctrine that the wife is one-half of the body of the husband and that, on his death, his widow survives as one-half of his body;? thus, wifehood was qualitatively different among the lower castes than among the high castes. The privilege of Shastric law was intended by the law-givers to be applicable only to the Brahmanas, Kshatriyas and Vaishyas and not to the Shudras. Since the Shudras practised non-sacred marriage it was considered perfectly consonant with their customs that the widow need not forfeit property on remarriage. Indeed it would be 'inappropriate to apply reasoning based on the general principles of Hindu law, intended only for the upper castes, to decree forfeiture for the low-caste widow', according to the judge.

Forfeiture should be applicable only in the castes which regarded wifehood as sacred and widowhood as a spiritual state. Implicit in this interpretation was the argument that the statutory law of 1856 on widow remarriage was neither wholly drawn from Hindu textual law nor from customary law. It is evident from the judgements that judges of the Bombay and Calcutta High Courts were attempting to collapse the difference between the two, whereas judges of the Allahabad High Court were implicitly arguing for a continuance of a caste-differentiated law.'° Clearly there were major contradictions in any attempt to legislate for all 'Hindu' women.

An allied problem of the difference between Hindu law and customary law, between wifehood among the upper and lower castes, was the question of who exactly the Shudras were and whether a particular caste was Shudra or not. This in turn would determine the applicability of the Hindu law. This was particularly

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difficult in a situation where many low castes were sanskritising and adopting customs of the higher castes.

The courts took contradictory positions on whether Hindu law applied to the lower castes, sometimes dismissing and at other times accepting claims of the parties appealing to the court. The 'inability' of many of the lower castes to testify about law and custom in their families, or to distinguish between one system and the other, was mocked at, whereas the different judgements reveal that the judges were themselves divided and confused about which customs were traditional and applicable in a given situation. This led them to hold different positions at different times for the Rajbansis, a 'low' caste in the Bengal region. In the process the judges often applied not only the law of the parties concerned but of a different people.!!

It has been suggested that the courts found it easier to decide the caste status of the twice-born because they had a list of diagnostic customs regarding ideal conduct for them based on the Shastric texts. The customs of the Shudras, or defining who the Shudras were, remained a problem because there was no such ready reference for them. However, once the courts took a decision about a caste they became a source of authoritative decisions!? in caste-ranking, in regulating the ceremonial privileges of a caste, or the customs that were valid for a caste, including those that would apply to women.

Through the various twists and turns taken by the British Indian courts the theme of the inherent conflict between Hindu law and statutory law is evident as also the serious inconsistencies created by regarding the statutory law as reconcilable with traditional

Hindu law. Justice Mukherji of the Allahabad High Court conceded that the orthodox would not recognise the marriage (of a widow) as valid in castes where the strict rules of Hindu law applied even though the British Indian courts may do sow Even more offensive to many persons, including the judges, was the view taken by the Privy Council that an 'unchaste' widow did not forfeit the right to her husband's property after she had succeeded to the estate.!4 Justice Mukherji as a 'Hindu' judge refused to accept this view. He was emphatic that such a decision could never be regarded as Hindu law as the Hindu law could not be interpreted apart from the dictates of conscience and reason. Hindu law could never reconcile within its conception a situation in which the widow forfeited the property of her deceased husband in case she lived

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'with a single man' but could enjoy it while indulging in the 'grossest immorality'!? of an adulterous relationship outside of marriage. Arguing that such an interpretation, based on the case law, would cause shock to 'one's moral conscience', Justice

The varying interpretations of the British Indian courts were clearly throwing up grave contradictions. It is evident that while the colonial state, either on its own, or in conjunction with a section of the reformist middle class elite, was initiating legislation affecting women, neither it nor the reformist elite was willing to transform the entire set of relationships relating to the remarriage of widows, family structures, conjugality, and property. The state was therefore not consistent in its handling of these questions. The position taken by the Justices of the Allahabad High Court is an example of this ambivalence and different perspectives were adopted by the courts in different regions according to certain interests of the colonial state in handling customary law. In Punjab and Haryana the question of the widow forfeiting her deceased husband's property was not the central issue — rather it was the insistence that the widow's remarriage must be restricted within the custom of the karewa, which was remarriage to the deceased husband's brother, thereby ensuring that the property remained within the affinal male kin control circle. This was upheld by the British administration since the colonial economy and its military recruitment hinged upon upholding 'peasant' customs where a woman's productive and reproductive capacities were fully utilised by the affinal kinsmen but were also exclusively under their control. !7

The reaction of the courts to the interpretation of statutory laws regarding gender codes may also be related to the nature of class formation in different regions. The appearance of a professional middle class, as in the presidency areas of Calcutta, Bombay, and Madras, and an educated elite, could act as a push towards homogenisation and a greater reliance towards 'reformed' Hindu law, which is what the statutory law was attempting to provide.

The interpretation of the law on widow remarriage and forfeiture

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in western India, especially in Maharashtra where Brahmanic influences were significant but caste contestations and upward mobility moves were also frequent, appears to have been shaped by some of these forces. The push towards universalising came partly from the cultural nationalism of the upper castes and partly from British preference for textual law, which they had made the basis of building up case law in various presidency areas and which overrode their preference for customary law in the Punjab. The 'universal' applicability of the law, a position taken by a combination of British and Indian judges, was a decisive move in the direction of a uniform 'Hindu' law which did not recognise differences according to caste. Consequently, the judges took the view that there was no question of a contradiction between Hindu law and customary law for purposes of applying the new statutory law to Hindus. It was the judiciary's balancing act, or rather its act of masking what it was doing in applying one set of laws but having to pass them off as 'Hindu law'; this led Nelson to write that the British might bind the people by new laws but they were required to pretend carefully that ney were maintaining the existing laws and customs of the country.!® However, not everyone was taken in by this careful pretence and at least one person who called himself a 'Hindu lawyer' warned others about the need to keep a watchful eye on the courts, especially the High Courts which were in his view invidiously tampering with Hindu law.!?

From the point of view of this work, it is significant that the Bombay High Court had initially taken the position, which the Allahabad High Court sustained, that where caste usage permitted the widow to retain property inherited from her deceased husband the forfeiture clause of the 1856 Act would not bé applicable.

Accordingly in Parekh Ranochor v. Bai Vakhat (1886) the widow retained the property.7° But in 1896, at the turn of the century, a full bench of the Bombay High Court overruled the earlier decision which had denied the validity of the forfeiture clause for widows belonging to those castes where remarriage was conventionally permitted.) Justices Farran, Parsons, and Ranade took their stand neither on customary law nor on Hindu law but on the statutory law, taking a very literal view of the wording of Act XV of 1856.

Homogenising all castes and the differences between them, Farran held that the Act applied to a// Hindu widows. Arguing that the law must be read as having universal applicability, he found nothing

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in its clauses that suggested that it was intended to apply the rule of forfeiture only to those widows who were for the first time permitted to contract valid civil marriages under the act. Thus,

Farran was emphatic about the universal applicability of the clauses to 'all Hindus alike, whatever their caste or the interpretation of Hindu law authorised by their caste may be'.?* He argued further that the position taken by the Allahabad High Court undermined the express provisions of the Act based on 'an assumption'.

His own assumption instead was that the legislature 'intended' to 'assimilate'

Hindu law in particular to apply to all castes and to thereby make the law, as administered, 'accord with the true principles of Hindu law' (emphasis added)."? Thus, the true principles of Hindu law on widowhood, violated by customary law according to Farran, were to penalise the widow for failing to observe sacred widowhood; all castes were now to conform to the ideals of 'Hindu' womanhood and the courts were a means of ensuring this position.

Justice Ranade took a slightly different view from the Chief Justice's while concurring with him on the decision of forfeiture.

Elaborating on the intent and provisions of Act XV of 1856, Ranade held that some of the assumptions of the act, particularly that the ban on the remarriage of widows was almost universal with only some exceptions, had been mistaken. Ranade was a Chitpavan

Brahmana and an active historian and social reformer. He would, thus, have been conscious of the ban on widow remarriage being a 'privilege' held on to by the Brahmanas and the highest castes against the attempts by upwardly mobile low castes seeking to adopt it in order to claim high status for themselves throughout the eighteenth and nineteenth centuries. The practice of enforced widowhood was thus the exception, confined only to about 20 per cent of the population, whereas the statutory law had presumed that it was lifting the ban for the bulk of the population. Further,

Ranade had also recognised that the statutes had presumed the need for prescribing remarriage rituals to conform to the rituals of the first marriage whereas in the castes where widows remarried, the rituals for a remarriage, called pat, were distinct from the first marriage called lagna.

However, Ranade considered these assumptions to be immaterial to the intent and correctness of the statutory law of forfeiture which he regarded as conforming to the 'original' practice even among the castes that conventionally permitted the remarriage of widows: the

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statutes had only declared what was universal practice.4 He thus believed that the legislature had validly adopted the principles of universal applicability on the basis of Arthur Steele's Law and Custom, ignoring, as Lucy Carroll notes, the fact that Steele's study had been confined to the Brahmana-dominated Poona region where

Brahmanising influences were at work long before the British takeover. He also chose to ignore the evidence before the subordinate judge that in the particular case under appeal the practices of the caste of the widow did not entail forfeiture on remarriage."° Ranade's position amounted to the Shastric position that a man's property was to be enjoyed only by the 'chaste' widow who lived up to the sacramental notion of 'Hindu marriage'. The disparate practices among various castes had been recognised as the customary laws of various communities and the Brahmanical lawgivers had tried to provide acceptance for them in the texts.

Though disparate, the customary laws had a coherence and were explicable within the larger ideology of textual Hindu law, which not only provided for distinctive laws for different castes but privileged them as these were the basis of the hierarchical ordering of castes. In Ranade's view, however, the relationship between customary law and textual law was not as contradictory as the Allahabad High Court was making it out to be by emphasising different norms for the upper castes and for the Shudras respectively. Justice Mukherji of the Allahabad High Court had attempted to reconcile Manu's norms for the twice-born with the new statute law by continuing the distinction between the customs of the lower castes and the uppermost castes.2° He resisted homogenisation which would erase the distinctions between castes implicit in the new statutory law. Forfeiture should, according to him, apply only to the high-caste widows who had traditionally been 'privileged' by having exclusive access to sacred marriage.

Similarly, Justice King argued that strict "Hindu law could not be applied to castes which had always permitted remarriage'."' In contrast Ranade, as a 'nationalist' Hindu, was arguing the point of view that it was not only possible to reconcile customary law and textual law within 'Hindu' law as in the past but also desirable to do so in the present and in the future where all Hindus should have the same Jaw. This the statutory law had now achieved in the case of widows, remarriage, and their relationship to property by

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insisting that all widows, whatever previous custom, must forfeit property on remarriage.

It is significant that the framers of the clauses of the statute and Ranade took the position that they were outlining the 'true' situation as it had obtained in the ancient past. The preamble to the statute on the Hindu Widows Remarriage Act stated that the legal incapacity of Hindu widows to contract a valid marriage was not a 'true' interpretation in consonance with the precepts of their own religion." Ranade argued, however, that the forfeiture by the widow was the 'universal' practice even among the lower castes that had, according to custom, permitted widow remarriage."" This was the 'true' position which was consistent with the position of the widow reform movement — to permit remarriage but along with the corollary of forfeiture. This was a necessity for the upper-caste propertied classes in order that the male affinal kin retain the control of property through cutting off links with the widow once she remarried. If the property of the deceased had been a means to maintain the widow and ensure that she performed the necessary acts for his spiritual merit, she was now to be maintained by her second husband, for whom, and with whom, she was now to perform ritual acts. The position of the reformers, Ranade included, was to make the child virgin widow a real wife, to relieve her of her 'unnatural' state, but not to give her control, even limited in nature, over two sets of property. The forfeiture clause was thus imperative in countering the possible opposition of the upper castes, who strongly resisted the remarriage of upper-caste widows.

From the above discussion it is evident that despite the different positions taken and arguments offered by various courts in interpreting the Widows Remarriage Act a certain thread is discernible whereby changes regarding gender codes appear to be moving in the direction of conformity with the tenets of textual

Brahmanic Hinduism. In this process the British and the high-caste Hindus, who were sometimes the judges and often the lawyers in the cases, acted in conjunction. Further, judges of both races had little or no sympathy for the practices common among the lower orders, who in any case were regarded as 'ignorant' and 'unfamiliar' with the laws. The preference for textual law, and thence for statutory law, was evident in the desire for one set of laws from the point of view of ease and convenience.*° In sum, one can also discern an essentially conservative agenda (despite the humanist

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rhetoric) of the British administrators and sections of the upper-caste Indians who took the position that it was best to give women some rights but also to limit them. Most importantly, even though the lifting of the ban on the remarriage of widows for women of the upper castes implied the adoption of a lower-caste practice, the incorporation of such practices was to be minimal. The adoption of the full range of practices prevalent among the lower castes, such as non-sacramental marriage (where the wife was not regarded as half the body of her husband), which had enabled her to hold the property of her deceased husband even after remarriage, was unacceptable. Thus, even as the castes were homogenised into a larger Hindu legal structure, and even as there was an apparent de-sanskritising move in lifting the ban on widow remarriage,

British administrators and their Indian counterparts ensured the maintenance of Brahmanic ideology and Brahmanised patriarchy and at the same time made these the basis of the norms for everybody else. In effect, this meant that the lower-caste woman was required to conform to the norms for the upper-caste woman.

Although there was some approval for these changes there was a degree of resistance from the upper-caste middle class, especially from those who could see what the implications of these changes were. The reactions of one such 'eyewitness' to the changes are typical not only of the somewhat contradictory nature of the processes but also of the contradictory nature of the reactions of men of this class, as will be evident from the passage below:

...1 think what requires reconsideration and revision the most is that part of Hindu law, or rather Hindu law as interpreted by our judges, which bears upon women's rights — I mean her concrete not her abstract rights.

I hate for instance the new ruling that a wife refusing conjugal society to her husband can be sent to prison for her refusal. I hate all the customs which are not sanctioned even by the fourth abridgement of Manu which we now have but which are nevertheless enforced by the courts, although they are opposed to the spirit of all our institutions.... Our institutes lay down that an unchaste widow be deprived of her inheritance from her husband but our High Courts say she should not be, because (and there lies the sting of the ruling) by adopting the old rule 'not only will a fruitful cause of domestic discord be largely extended but a motive will be afforded, to say the least of it, for publishing and bringing into the court the most deplorable scandals'. How complimentary to us. A decision based mainly on this reason is not supposed to shock native opinion but a

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decision that a remarried widow by her remarriage is not to lose her inheritance is supposed to be one that would 'certainly be a shock to native opinion'. In other words we prefer unchastity to remarriage and that is what is called administering the Hindu law.... Our loving High Courts have [also] chosen to extend the rule [of mutual fidelity which has become so one-sided that a husband can default during his wife's lifetime but she may not even on his death] to even those among whom the caste would dissolve marriages for valid reasons, for the fiat has gone through that even a Sudra wife, allowed by her caste to remarry must prove a divorce by her husband or go to jail for bigamy and adultery. On the one hand we have customs enforced among the highest castes which are utterly repugnant to their 'best traditions' and on the other we have customs thrust upon the lower castes which are utterly unsuited to their constitution and to their institutions, and in either case it is a woman who suffers most.... My dear friends, the very foundations of Hindu law have been corrupted, and I say to all practical Hindus to take up the reform of Hindu law. First of all, keep a sharp eye on the High Courts...??

From this long and impassioned account, only one thing is clear — there were all manner of changes occurring with respect to the laws affecting women. For the rest the "Hindu lawyer' (as he called himself) was deeply uncomfortable with the British administration of Hindu law which enforced repugnant customs upon the high castes and ignored the need for a different set of laws for the low castes, thereby erasing the distinctions between the 'constitutions' of the two. The 'Hindu' lawyer was a contrast to Ranade, just as the British administration of Hindu law in the High Court of Allahabad on the forfeiture clause for the remarrying widow was a contrast to the High Courts of Bombay and Calcutta. The entangled relationship between law, custom, caste, property, and gender was not so easy to disentangle on the question of widow remarriage as we have seen but also with respect to conjugality as we shall see in the next section.

In the second half of the nineteenth century women were being gradually drawn into the ambit of a new legal structure administered by the British Indian courts. As the quantum of legislation increased and the authority of caste panchayats became dysfunctional, or redundant in certain cases, women became subject to dual authority structures. Their everyday lives and many of their

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so-called 'lapses' continued to be governed by the social power of the community, exercised through the caste panchayats where customary law was applied, but at the same time the new statutory laws also began to govern their lives, especially on certain issues relating to property, thus making them subjects of the state in extraordinary situations.

Both upheld the authority of the patriarchal family and property structures even though the two systems were apparently dissimilar and at times in conflict with each other. The overlap between the systems and their relationship to that new entity, then being constituted, called "Hindu law' also remained problematic and unresolved throughout the second half of the nineteenth century.

The contradictions in the existence of and overlap between different sets of practices and their validity in law, especially with respect to gender, became evident gradually from the mid-nineteenth century onwards. The legislature had ensured the continuance of custom by Section 26 of the Bombay Regulation

IV of 1827. Judicial officers were instructed to give effect to the 'ancient customs and usages' of the people.** The panchayats were also empowered by the same laws to decide civil cases. In 1868 the Privy Council had further laid down that under the system of Hindu law, clear proof of usage would outweigh the written text.*?

This was merely an extension of the position of the Dharmashastra texts where the king was to settle the issues according to the 'peculiar' law of each caste and the recognition that custom was powerful and could even overrule the sacred law.>4 Hindu law was merely an aggregate of the different usages of castes.

The structure of institutions with overlapping jurisdictions and the application of law according to caste usages, however, did not function with any neat fit. Many cases were not conclusively resolved by the caste panchayat and went up to the courts for adjudication. A body of case law then built up on various issues.

These require an independent and in-depth analysis but among the significant problems that emerge in the cases cited here are the particular instances where caste autonomy was regarded as inviolable and, in contrast, where larger questions of morality may have been cited by the court to strike down the decision of the caste; characteristically many issues of 'morality' were actually issues of gender. For example, in a case where the plaintiff sought recognition by the court of his right to be head of the caste and

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the privileges and precedence accruing therefrom, the court held that the question at issue was a caste question and to hold otherwise would be to interfere with the 'autonomy of the caste'.*? A similar principle was followed in several other cases; in one the court held that, if a caste was regarded in any sense as a self-governing body, as contemplated by Regulation II Section 21 of 1827, it should be left to decide issues according to its customary mode of procedure.2° Even when a Brahmana who married a widow according to the Hindu Shastric rituals was obstructed' from entering the inner shrine of a temple to present an offering, the court held that the right claimed by the Brahmana to enter the temple was of a civil nature; it was not a question of legal status but of caste status and did not therefore interfere with 'custom'.?"

However, the authority of the caste to decide certain issues and maintain its autonomy in such cases was often struck down by the courts. The provision for this overruling came from the argument that the customs prevalent could be upheld by the courts only if they were not repugnant to public interest or abhorrent to public morality.°8 An anxiety about public morality led the courts to repeatedly overrule usages of caste when it came to women remarrying during the life of their husbands and in other matrimonial matters generally. For example, a woman of the Teli caste whose husband contracted leprosy remarried during his lifetime. She did so with the consent of the caste. She was charged with bigamy and the charge was upheld.*? In another case a husband claimed the restoration of his first wife who pleaded that according to the custom of the Aheer caste whenever a husband married a second wife, the first wife was at liberty to take a second husband. In this case the first husband had done so and was therefore not entitled to a decree for a restoration to him of his first wife. The court sought the opinion of the Hindu law officer who found no authority in the Shastras to support the wife's contention and the court declined to uphold the wife's argument.

What is notable is that the compiler of caste usages and the working of customary law in British India laid down that even if caste custom did permit such an arrangement as the one cited by the wife the court would have struck it down as being immoral.*

In a case that came up to the Bombay High Court in 1864 involving a custom prevalent among the Talapoda Koli caste of Surat which permitted a woman to leave her first husband and to

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contract a second marriage during his lifetime, and without his consent, the court did not recognise the wife's plea that her second marriage was valid. The court went on to lay down that even if such a caste custom existed it was invalid as being 'entirely opposed to the spirit of Hindu law', implying that a caste custom which did not conform to 'Hindu law' was not valid.*! In a similar case among Sompura Brahmanas the judge held that even if the husband had consented to his wife's remarriage during his lifetime, the marriage would have been held to be invalid.*? In a number of other cases too that dealt with the question of caste customs enabling a woman to leave her husband and marry another man of her free will, or with the consent of the caste, the court held that the customs were not valid. According to the court the practices were immoral and sought to 'legalise adultery'.43 Thus, while in general the court recognised that the panchayat or head of caste could determine marriage and grant divorce, in certain cases the courts declined to recognise the authority of the panchayat to grant divorce. For the section of the Hindu intelligentsia which wished to uphold the power of the panchayats this was a negative feature of the new judicial structures. A respondent exhorted the public to keep a watchful eye on the courts. In his opinion the people sometimes found their own solutions to cases and particular problems. The High Courts, instead of upholding these caste decrees, were interfering with the remedies on the grounds of morality, he alleged.

The general principle that the courts would accept the decisions of properly constituted panchayats did not preclude them from enquiring into the decisions and even reversing them. This depended on the understanding of the judges about whether certain customs actually were practised in certain castes; even when established, some were struck down as violative of morality. Bonds and agreements between marriage partners could also be struck down. This happened in a case where a married woman sought a divorce from her husband on the strength of a bond executed by him before marriage; in this he had agreed to consider the marriage void if he ever left the village in which his wife and her friends resided, or in case of cruelty, or in the event of his ever marrying another woman. The High Court held that such a contract was opposed to 'public policy' and therefore did not render the marriage void.* The relationship between caste custom, arbitration by caste

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panchayats, marriage practices of particular castes, and their acceptance by the British Indian judicial system was not quite resolved and was subject to interpretation and reinterpretation as can be seen in the cases cited above. For this reason whether an issue went to the caste panchayat at all would be contingent on the nature of the dispute, the issues it threw up and the perception of the parties about the ability of the caste panchayat to effectively

'settle' a dispute. Certain points of dispute may also have been unresolvable through simple recourse to caste customs as they could arise from new situations, part of the economic and social changes occurring in the nineteenth century.

II One of the most famous cases to throw up these and other issues was that of Dadaji vs. Rakhmabai.*© Revolving around the links between property, conjugality, law and the state in the context of the middle-class service gentry in an urban location, the case captured the attention of the press not just in Bombay and Poona, and in the other presidency towns Calcutta and Madras, but even in Banaras and Lahore. There were reverberations of the case in England with letters to the Times from concerned citizens. Apart from the issues that arose in the case itself as framed by the parties concerned, their lawyers and the judges, the newly constituted middle class across the country framed its own issues at a more popular level on women, marriage and the consequences of education for women.

Briefly, the outlines of the case were as follows.47 Rakhmabai was the daughter of Jayantibai and Janardhan Pandurang. Jayantibai was widowed at the age of 19 when her daughter was two. Since

Jayantibai's caste of Sutars (carpenters), a caste with multiple referents such as Somavanshi or Panchakalshi Kshatriya, customarily permitted widow remarriage, her father, Harish Chandra Jadoji, arranged a second marriage for her to Dr Sakharam

Arjun, a leading surgeon and social reformer of Bombay, four years after she was widowed. In 1875 when Rakhmabai was 11 or 13

(the parties at dispute gave different ages) she was married to Dadaji Bhikaji, a distant relative of the family, who was then 19 or 20.

According to Rakhmabai's family's version of the events, for some time Dadaji lived and underwent attempts at education in the

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household of his cousin/father-in-law. This arrangement broke down at some point and thereafter Dadaji went to stay with his mother's brother Narayan Dharamji.

During the period of Dadaji's stay in his father-in-law's household his marriage to Rakhmabai was not consummated, a fact which was not contested by him. In 1884 after trying unsuccessfully to get Rakhmabai to come and live with him in his uncle's household, Dadaji moved the courts against her, filing a suit for restitution of conjugal rights. Suits for restitution of conjugal rights were new, hardly ten years old, but significantly, in 1882, just two years before Dadaji tried to make Rakhmabai come to live with him at 'his residence', a denial of conjugal rights was made punishable by imprisonment. Dadaji was probably encouraged to file a suit following this new clause since few women would be able to stand up to the ultimate possibility of imprisonment. During the years following the introduction of suits for restitution of conjugal rights there had been a series of other cases between parties who were

Parsi, Muslim and even Hindu, but this one immediately took Bombay, and later India, by storm for reasons which will become partly evident in the discussion below. The case came up before Justice Pinhey who decided on 21 September 1885 in favour of Rakhmabai and awarded her costs for the trial. He did not call for the counsel for defence to present arguments, taking a decision on the written submission which clearly indicated Rakhmabai's unwillingness to go and live as Dadaji's wife.

An analytical summary of the arguments that came up on both sides as well as from the court is presented below:

Dadaji, who is described as a Hindu of the Sutar or carpenter caste in the court records, was careful about the details he provided of his marriage, residence and the processes adopted by him to get

Rakhmabai to come and live with him. His suit stated that he had married Rakhmabai 'according to an approved form'.*8 (There is a suggestion here that the rites may have been appropriate for the caste, not necessarily Vedic rites, but that they completed the marriage form.) Subsequently Rakhmabai continued to live with her stepfather Dr Sakharam Arjun. During the first year she occasionally visited Dadaji's house but not thereafter. Dadaji however was a 'constant visitor to the house of Sakharam Arjun'.

The suit recorded that the marriage had never been consummated although Rakhmabai 'had long since attained puberty' as Dr Arjun

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was 'averse to early consummation thereof.* It is significant that Dadaji drew the attention of the court to the fact that it was his residence which was meant to be the conjugal household to which Rakhmabai had come from time to time in the first year. At the same time he was also careful to state that he only visited the house of Sakharam Arjun but did not reside there on any long-term or permanent basis. Dadaji also highlighted the fact that the marriage was not consummated at the instance of Dr Sakharam, a decision from which he excluded himself.

; The plaint went on to state that when Dadaji wrote to Dr Arjun requesting that Rakhmabai be sent to Dadaji's house Dr Arjun's reply had acknowledged that Rakhmabai's continued stay in her natal house had been with the 'consent of relations on both sides' because of the 'unfortunate circumstances' of the plaintiff.

According to Dadaji when his uncle and brother went to fetch Rakhmabai she refused to go with them. Thereafter the solicitor's letter to her, with the undertaking that Dadaji would give her

'suitable maintenance and lodging according to his rank and position', also met with a written refusal from Rakhmabai to go and live with him. Dadaji then filed a suit in which he sought the intervention of the court for (a) the institution or restitution of conjugal rights from Rakhmabai, (b) suitable action so that the defendant Rakhmabai may be restrained by injunction from continuing to live in the house of Dr Arjun, and that Rakhmabai be 'ordered to take up her residence' with the plaintiff.°°

Rakhmabai's written submission admitted the marriage, but stated that she was only eleven at the time and had not arrived at the 'years of discretion'. She alleged that Dadaji used to visit her stepfather's house for medical treatment and that he filed the suit at the instigation of 'certain evil-minded persons' who had done so for their own interest.

Rakhmabai gave the following grounds for her refusal to live with Dadaji: "(1) The entire inability of the plaintiff to provide for the proper residence and maintenance of himself and the wife, the defendant (2) the state of the plaintiffs health, as he suffered frequently from asthma and other symptoms of consumption and (3) the character of the person under whose protection the plaintiff was living and to which he was calling the defendant to join him'.>!

It is evident from the above that Rakhmabai, did not challenge the point that the husband's house should necessarily be the residence

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of the wife but declined to go there because of the nature of the household where she was required to live. Dadaji's counsel's response to the allegations was to raise the additional issue of whether the allegations, if correct, amounted to sufficient justification under Hindu law for the defendant to refuse conjugal rights to the plaintiff.>* The defence for Rakhmabai's refusal to go to live with Dadaji hinged upon the question of her having given no personal consent to her marriage. The counsels for Dadaji then argued that marriage among Hindus was not a contract but a religious duty. Citing

Mayne's Hindu Law, they also argued that the absence of personal consent through infancy was immaterial. The suit was valid both with regard to institution and restitution of conjugal rights; with regard to consummation the suit was for institution of conjugal rights since this marriage, like most Hindu marriages, was solemnised before puberty. But on the other hand, the fact that Dadaji had consented to 'allow his wife' to stay with her stepfather after she had attained maturity made the suit simultaneously one for the restitution of conjugal rights. Dadaji's counsel further pointed out that his claim for the restitution of his conjugal rights had never been disputed until a month before the suit. Then, clinching his argument, Dadaji's counsel pointed out that from the moment of marriage a Hindu husband is a wife's legal guardian, even though she might be an infant, a statement that was meant to repudiate any suggestion that the natal kinsfolk of an infant wife could continue to be her legal guardians even if she stayed on at their residence. And further, because a Hindu husband is his wife's guardian, it was argued that he has an immediate right to require her to live with him in the same house as soon as she has attained puberty: her home must necessarily be her husband's house.

The problem with this set of arguments in the Rakhmabai case, however, was that she had stayed on at her stepfather's residence even after she attained puberty. To counter any suggestion that this could mean that conjugality had never been instituted, as Rakhmabai's counsel could and did argue, Dadaji's counsel advanced the view that in this specific case 'Dr Sakharam's, where

Dadaji frequently visited her (thus establishing conjugality) was constructively the husband's place of abode or, at least, it was a place appointed by him for the purposes of her residence' (emphasis added). Dadaji's counsel, again citing Mayne, also argued that suits

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for the restitution of conjugal rights did lie among Hindus (the argument that such a suit did not lie was being put forward by Rakhmabai's counsel) and that the 'poverty of the husband' cited as reason for Rakhmabai's refusal to go and live with Dadaji did not constitute a matrimonial offence, or operate as a legal bar to the husband's right to his 'wife's society and assistance'.

Justice Pinhey, who was hearing the case, dismissed the counsel's reliance on Mayne who had, according to him, too broadly expanded the decisions of the courts. He was therefore of the view that Dadaji must prove his case for the validity of the laws on the restitution of conjugal rights. Dadaji's counsels produced witnesses who testified on various issues including the material position of Dadaji, the 'respectability' of Dadaji's uncle's household where

Rakhmabai was called upon to live, and Dadaji's health. The property of Rakhmabai's father Janardhan Pandurang was also dwelt upon as well as the information provided that the marriage expenses on both sides had been defrayed by the executor of Janardhan Pandurang's will.*4 Pinhey did not call upon Rakhmabai's counsel to argue their defence any further or to produce witnesses. He had strong views on the case which he articulated forcefully. He was clearly exercised about the implications of the case which he stated 'had been on his mind all through the week' before he gave his verdict, during which time he had looked into the authorities. Drawing upon his long experience in the judiciary (he retired soon after the verdict in this case) he concluded that it was a 'misnomer' to call this a suit for the 'restitution' of conjugal rights. He conceded that according to the practice in England, when a married couple affer cohabitation separated and lived apart, either party could bring a suit against the other for restitution of conjugal rights. Later on the courts in India had also introduced this right into legal practice. But, he pointed out, the Rakhmabai case was not of that character as the parties had been through a religious ceremony eleven years earlier, when

Rakhmabai herself was only eleven. The parties had never cohabited. The issue now was that the court was required to use its judicial power to compel Rakhmabai to go to the plaintiffs house so that he might 'complete the contract with her by consummating the marriage'. Rakhmabai, however, now that she was of 'full age', objected to going to live with him, objected also to allowing him to consummate the marriage, and objected too, according to

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Pinhey, to ratifying and completing the contract entered into on her behalf by her guardians while she was of 'tender age'. Therefore, it seemed to him that it would be a barbarous, a cruel, a revolting thing to do to compel a young lady, under such circumstances, 'to go to a man whom she dislikes in order that he might cohabit with her against her will.'

Pinhey dismissed the suit on the ground that there was not 'one case either in England or in India' in which a court had compelled a woman who had gone through the religious ceremony of marriage to a man to allow that man to consummate the marriage against her will. In Pinhey's view the courts could not be a party to a forced consummation. He bemoaned the fact that such a possibility had arisen at all through a transplantation of a law which originated in England under 'peculiar circumstances', i.e., under circumstances peculiar to England, where marriage was concluded between 'consenting adults'. Pinhey was convinced that the practice of allowing such suits had no foundation in Hindu law. He recalled that for many years after he came to India such suits were not allowed. It was the 'amalgamation of the old supreme Sadar Courts in the High Court bringing English lawyers into the mofussil that had led to such suits being filed in the Indian courts'. (The right to restitution of conjugality was thus the work of English lawyers.)

Pinhey held that since, under Hindu law, the suit would not be cognisable under the civil courts he would not carry the practice any further than supported by English authorities especially since the relief demanded by Dadaji (which in Pinhey's view was not merely a shift of residence but a forced consummation of a marriage) was revolting not only to civilised persons but to all persons. The suits for restitution of conjugal rights were being discredited in England and should 'never have been introduced into India'. In so far as they had been introduced Pinhey would have followed the authorities. But since even in India there was no case like that of Rakhmabai (all of the earlier had been cases of restitution, and not institution, of conjugal rights) Pinhey was not going to create a precedent, or in any way extend the practice of the court. On a personal note, Pinhey also made a reference to the cultivated and enlightened atmosphere of the well-known citizen

Dr Sakharam Arjun's house in which Rakhmabai had been brought up. He was glad therefore that he was not obliged to grant the relief Dadaji asked for. But, significantly, Pinhey was also obliged

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to conclude with the observations that he did not endorse the contention that Dadaji was not entitled to claim the society of his wife because he was poor, since a poor man had as much right to claim his wife as a rich man had. He did not therefore concede the ground of incompatibility, or even wish to entertain it." It was forced cohabitation and his understanding of conjugal rights in English law and its inapplicability in Hindu law, especially in using force to institute such rights, that had led him to dismiss the suit.

Throughout his statements the issue never explicitly addressed, but implied in almost everything Pinhey said, was the question of rape within marriage. It was to emerge once more in the Age of Consent debate.

Dadaji was unwilling to give up and was advised by his supporters to appeal, which he did; the case now came up for admission before Justices Sargent and Bayley.°® (Pinhey had retired in the meanwhile to the delight of many outraged by his positive decision for Rakhmabai.) Dadaji's appeal was argued by Macpherson, Vicaji and Mankar. They reiterated the view that the defendants had admitted the marriage which was complete when the marriage ceremony was performed. Thereafter the wife became a member of her husband's family and ought to reside with him.

Consummation in their view was not necessary to effectuate the marriage, and the husband had a right to the 'society' of his wife, and the courts were bound to enforce that right. The law they quoted was Section 260 of the Civil Procedure Code (XIV of 1882) which recognised such a right and provided the means of enforcing it. They conceded that while the means of enforcing the right had been abolished in England it remained valid in India under the above-mentioned law. They also cited the courts having granted the right in a number of cases and argued, 'If the right and the incidents be the same among Christians, Mohammedans and Parsis, why should the remedy be denied to the Hindus?' In effect Dadaji's counsels at the appellate stage were using two sets of arguments.

The obligation of conjugality following the completion of the sacramental aspect of the marriage performed according to an 'approved form' was drawn from Hindu law; the enforcement of the conjugal obligation was however drawn from English law. The transfer of residence of the wife was the object of this instrumental use of law. Since both sets of laws were in operation Dadaji claimed relief under both.

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The argument of the defendant presented by Latham and Telang rested primarily on an extension of Pinhey's view that a suit for the restitution of conjugal rights did not lie in Hindu law and that in any case such a right had not yet been enjoyed and therefore could not be enforced. They considered consummation of material importance, pointing out that even the title of the English law showed that such rights lay only where the wife had already granted conjugal rights. Citing the provisions of Section 8 of Act XXI of 1886, they argued that it showed that the Indian legislature was strongly of the view that there was no English authority for enforcing the commencement of cohabitation. They also argued that even if the right of restitution of conjugality existed between Hindus such a position was as recent as 10 years; further, the lower courts in these cases had mistakenly based their position on two cases decided by the Privy Council but where the parties were Parsi in one case and Muslim in another. The courts had not considered carefully what the Hindu law was upon the subject.°°

Expanding on their argument, Latham and Telang outlined the origin of the restitution of conjugal rights from the ecclesiastical courts and not from English common law or English equity law; the ecclesiastical courts could only enforce by excommunication. In any case the Privy Council had declared in one of its judgements that ecclesiastical law had no application in India, and that (here) only the 'law and usages of the country mattered'. Clinching their argument, they declared that even if it was accepted that ecclesiastical law could be applied it would be necessary to prove that the marriage had been based on 'free consent', which the plaintiff must necessarily fail to do. Finally it was argued that suits for restitution of conjugal rights were repulsive to civilised nations and that they should not be extended to Hindus unless they could be shown to be known to Hindu law. In their view the courts had discretionary epee and were not bound to make a decree under an alien law.° The defence thus pivoted around the fact that the restitution of conjugal rights was not in accordance with Hindu law and that merely because it was upheld for Mohammedans it did not mean that it could apply to Hindus; this position stressed the uniqueness of Hindu law which was distinct from English law but also from Mohammedan law. The implications of this view were that each community was distinct and the laws of each community, especially

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on matters such as marriage, should conform to the usages of that community.

As the defence proceeded, C.J. Sargent asked Rakhmabai's counsel to indicate the circumstances which should influence the court in declining to give the relief demanded by Dadaji.

Rakhmabai's counsel outlined these as the occurrence of the marriage at a time when the wife was incapable of giving a reasonable consent and the poverty and 'poor social position' of the husband. Pinhey's decisiveness about the case was not shared by Sargent who noted that since the points raised by the defence about Dadaji's position were not investigated the court did not have evidence on these points.°* This was conceded by Rakhmabai's counsel but he also added that the court had a certain discretion which it could exercise while granting a decree as the trial court had done. Telang added further that while the Hindu law books prescribed the duties of a husband and wife they said little about how to enforce the performance of such duties. Since the duties were religious they were enforceable only by religious machinery; further, according to the Vyavahara Mayukha which mentioned the duties of a man and his wife the only mode of enforcing those duties was by the imposition of a fine by the king. Most pertinently the only case contemplated by the Hindu law was that of a husband abandoning his wife which resulted in a fine payable to the king.

He rounded off his argument by pointing out that there was no provision (in the texts) at all for the case of a wife separating from her husband, and, in the absence of such provision, the court could reasonably assume that the same remedy or punishment would be applied, i.e., by paying a fine.°? Implicit in this argument was the recognition that traditional Shastric law had never envisaged a situation where a wife might decline to go to her husband if he wanted her with him. What is evident from this argument is that there were now elements which made it possible for a woman of property, located in an urban situation, to decline a marriage obligation and pursue an alternative existence outside marriage. The new class situation provided a propertied and educated woman certain options which had not been available to women before.

Telang then brought in an issue which was not being addressed directly by the courts or the appellants — the existence of the caste authority and its crucial place in the working of the amorphous/flexible Hindu law.°4 He argued that the case could be

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brought before the caste authorities for their decision but not to the civil courts and he used an intricate argument to support his position:

No doubt [the] caste council might always have ordered the wife to go to her husband but the caste may do that still. The caste can enforce social duties. The civil courts may not. The civil courts now exercise the authority which belonged to the king when the Hindu law books were written; the functions of the civil court are to be ascertained by references to what are laid down as the duties of the king.®

In short Telang was arguing that while the British Indian courts had inherited the powers of the king they had not inherited the powers of the caste council which, presumably, the latter continued to hold intact even in the 1880s — or in Telang's view they ought to have done so. The position of the defence thus rested quite self-consciously and unambiguously on the inapplicability of such a case within Hindu law and, further, that the courts were bound to apply the particular law of the contracting parties upon them, which were the 'customs and usages of the caste'.

In response to Telang, Macpherson, the counsel for the appellant, now had to take Hindu law directly into his argument whereas originally the position had been based mainly on statutory law and case law of the British Indian courts. He had little difficulty in reconciling statutory law, English law, and Hindu law on the issue of the husband's right to his wife's conjugality. He admitted that while there may be no direct authority for the suit in Hindu law he denied that it was in any way inconsistent with Hindu law since there was nothing in that law which forbade it. In his view the principle laid down by the British Indian courts in Munshee

Buzloor Raheem vs. Shamsoom Begum was applicable to Hindus.* Macpherson was making a double move: while reconciling Hindu law with statutory law he was arguing for the principle of universal applicability and against the uniqueness of Hindu law. At the same time he was cautious about suggesting that statutory law could, or should, supersede Hindu law if they were inconsistent with each other.

In arriving at a decision the court took up the central issue of whether a suit for the institution or restitution of conjugal rights would lie in the present case. The judges Sargent and Bayley were of the view that there was a series of suits on the restitution of

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conjugal rights which had been entertained by the civil courts in the case of 'natives', both Hindu and Mohammedan. The examples the court cited included two cases where Hindu, wives had sought restitution of conjugal rights although the better known cases were those where the husbands were the plaintiffs. Sargent therefore took the view that since it was clear that there was such a jurisdiction

'as long as it was not taken away by legislation' the courts could not exercise the kind of discretion urged by Telang, nor could they go into the root of the jurisdiction: i.e., since there was already a body of case law the original validity could not be reopened. In response to Telang's argument that Hindu law did not recognise the compulsory discharge of marital duties, but only treated them as duties of imperfect obligation to be enforced by religious sanction, the court argued that although no text of Hindu law provided for a king ordering a husband or a wife to return, no text was cited which forbade compulsion. Further, since Telang had conceded that the duties between husbands and wives had always been the subject of caste discipline, with the establishment of a systematic administration of justice in Sargent's opinion the civil courts must necessarily assume jurisdiction over conjugal rights as determined by Hindu law and enforce them according to their own modes of procedure.® Sargent, in taking this view, even as he referred to caste discipline 'ignored' the structure of caste authority, or even of possible differences in caste customs in the context of marriage practices and treated them under the 'hold-all' term

'Hindu law'. The court was not going to look at the validity of the issues raised in the case according to the caste law of the Sutars, by which term the parties had earlier been described, but as Hindus to whom Hindu law would be applied by the new structure of the courts which had inherited the authority of both the caste council and the Hindu king.

The court also took note of the defendant's argument about the relationship between consummation and institution of conjugal rights but argued that such a position was a misapplication of the ecclesiastical law. Further, the court argued that since the defendant had not contended that consummation was necessary in Hindu law to make the marriage valid, the position of the defence was not tenable — it was irrelevant whether conjugal rights were being denied before or after consummation because it was the duty of married persons to live together. Most importantly, consummation

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was not necessary to effectuate a marriage any more in Hindu law than it was in English law. Consummation was not thus the essence of conjugality or of marriage. Therefore the judge held that there had been a violation of conjugal duty on the part of Rakhmabai which entitled Dadaji to the remedy he sought which was 'the society of his wife', at the husband's residence.

The problem of 'infant' marriage was also confronted by Sargent as it had featured implicitly in defining consent and the court applied its mind to custom. Conceding that it was customary for the 'infant wife' to return to her own house after the marriage celebration until she reached puberty, it could be argued that the court should not order the wife to join her husband until she was of mature age (implying thereby that the institution of conjugal rights could only take place at the time of puberty). However, since

Rakhmabai was long past the age of puberty"® such a reasoning also would not hold. The argument of the defence that since the defendant had had no voice in her marriage with the plaintiff, to join him against her will for the purpose of consummation would be more than 'ordinarily revolting to delicate feelings', as Pinhey had put it, was more difficult for the court to tackle. Also, the court had to confront the possibility that if the defendant continued to deny conjugal rights, imprisonment would have to be decreed since it remained enforceable in India whereas it had been dropped in England by ordering alimony for the 'deprived' husband instead.

On the question of the defendant having no voice in the choice of husband the court extricated itself by placing the responsibility of such a situation squarely upon Hindu law — if it accepted the defence it would be tantamount to upholding the view that all marriages in India among Hindus were invalid because the parties were children. The court argued that nowhere was it suggested that the 'marriages of Hindu children are not perfectly valid without the exercise of volition on their part'.'! This as we shall soon see was the crux of the bind the court was in; if they denied conjugal rights to the husband on the ground that the wife was not a consenting party to it, no Hindu marriage would stand. This the court just could not decree.

The position of the defence was regarded by the court as virtually being asked to 'disregard the precepts of Hindu law' which treated the marriage of daughters as a religious duty imposed on parents and guardians, and instead to view the matter purely from the

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English point of view which 'sees in marriage nothing but a contract to which the husband and wife must be consenting parties'.'" Turning Telang's argument of invalidity of restitution of conjugality in Hindu law completely around, the court pointed out the 'true' nature of Hindu law, which required the ratification of infant marriages by the parties and by the courts because of the religious obligation to marry off daughters by fathers according to prevailing norms. The courts thus could not exercise discretion in favour of Rakhmabai as urged by the defence.

; The court concluded its view on the validity of Dadaji's claim by rejecting the position that the court should draw fine distinctions between a woman 'who had never lived with her husband and is averse to joining him and one who had lived with him and perhaps acquired a moral loathing for him and therefore objected to returning to him'.'"? The court found its hands tied even though it recognised that it may have been advisable not to adopt stringent measures to compel the performance of conjugal duties. But because as long as the law remained, the civil courts were bound to uphold it on the ground of 'consistency and uniformity of practice','4 Sargent and Bayley admitted the appeal on 18 March 1886 and remanded the case for decision on merits to be judged by that new mixture of 'Hinduw' law, statutory law and case law on conjugality. The case came up for decision before Mr

Justice Farran. By this time Rakhmabai's counsel considered it necessary to tell the court that Rakhmabai had determined not to live with the plaintiff as his wife. This indicated that in the event of a decree against her she would rather face the consequences and court imprisonment than join him against her will. It is significant that Rakhmabai sought non-performance of marital obligations as defence both during the case and even later, rather than divorce or dissolution of the marriage, which may not have been available to her under "Hindu law' or British Indian law as applied to Hindus.

At no point was caste custom brought in, either over non-performance of marital obligation, or in seeking a dissolution of the marriage. The identity she sought for herself was that of a 'Hindu' lady, and subject to oppression: in that capacity, when she wrote to The Times of India (26 June and 19 September 1885) under a pseudonym during the trial. In the meanwhile there was a raging battle in the press over the Rakhmabai case with both parties finding support from contending factions of the middle classes in

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western India. Farran delivered his judgement on 3 March 1887, ordering Rakhmabai to 'return' to her husband's house (to which she had never been for any fengelr of time) within a month or face imprisonment for 6 months,'? the maximum penalty possible under the clauses operable in the restitution of conjugal rights.

All the parties tried to buy time rather than have Rakhmabai go to jail; obviously this was not exactly what Dadaji had intended.

Rakhmabai did not appeal against the judgement since her counsel did not advise taking the matter to the Privy Council.'6

Simultaneously, compromise moves were afoot and _ these materialised in July 1888 whereby Dadaji agreed to ae up his claim on Rakhmabai in return for a sum of Rs 2,000, reputedly to cover his legal costs but in any case a substantial figure in those days. The implications and reverberations of the case for Rakhmabai personally, for women in general (102 women had signed a petition against Rakhmabai's impending imprisonment) and the middle class in particular did not, however, end so neatly.

Among the reactions was an official one from the government on the advisability of dropping the clause of imprisonment from the statute on restitution of conjugal rights."°

Ill The Rakhmabai case encapsulates the interaction between caste mobility, class formation, fluid legal structures, appropriate gender codes and new notions of a 'community' within the larger framework of colonialism and nationalism.

The feeding of particular castes, some clearly attempting to move up in the social hierarchy, into the larger process of class formation and the creation of a new urban professional elite are best typified in Rakhmabai's social location and the 'moment' in which the case came up. The unresolved tensions inherent in such a cross-cutting moment are also discernible in the arguments and counter-arguments put forward in the court and in the larger court of public opinion captured fairly effectively by the press.

Rakhmabai was described in the suit instituted by Dadaji as a Sutar,"? traditionally a caste of carpenters classified broadly among the intermediate castes of Maharashtra. However, the Imperial

Gazetteer describes their origins as Panchakalshi, a caste regarded as related to the Pathare Prabhus, who were traditionally associated

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with clerkships.8° Although they had originally been a prosperous caste they became depressed to the level of Sutars by the loss of their lands to the Portuguese. Thereafter, they had also become clerks with the Company and later in private firms and had joined government schools and entered professions. With their rise in social status they adopted the name of Somavanshi Kshatriyas and began to carry out a number of reforms in their marriages and other ceremonies. This process had been noticed by Tukaram Tatya

Padval in his book Jatibhed Vivekasar published in 1861. The Sutars, like certain other castes, had also taken to wearing the sacred thread, according to Molesworth, on the ground that they were

Kshatriyas.8! In 1884 (the year Dadaji moved the court for restitution of conjugal rights) the community founded the 'Kshatriya' Union Club, for the promotion and education of their poor.

The internal stratification within the caste was of fundamental importance in the Rakhmabai case since it surfaced within the marital relationship and the arrangements of the household. Rakhmabai came from the educated prosperous part of the caste, Dadaji from its poorer labouring section. It is significant that the internal stratification within the caste was specifically linked to the Rakhmabai case by an editorial in the Mahratta. This pointed out that the origin of the case could be traced to the present transitional period wherein a father having risen to a position had to give his daughter in marriage to a member of his caste who was less advanced than himself.*?

These moves at organising as a caste, creating a particular identity for themselves and helping the less privileged members of their caste were not unique to the Sutars/Somavanshi Kshatriyas/Panchakalshis. Other castes in Bombay such as Sonars,

Pathare Prabhus, and even the Chandraseniya Kayastha Prabhus, along with many more, followed similar trajectories not only in the Bombay region but across many parts of India.83 The trends seem to have had a close bearing on the simultaneous process of the formation of a cross-caste elite group with the attendant creation of a larger identity. These multiple identities appear in the references to Rakhmabai even in the pages of the newspapers and judicial records where she is variously described as Sutar, Panchakalshi and Hindu. The multiple referents of Rakhmabai's caste suggest that upwardly mobile sections of a caste, sought to appropriate a range of statuses in a fluid economic and social

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situation. These may also have been methods of seeking to establish congruence between caste status and class position.

Rakhmabai's location within a newly-forming class which comprised various castes, is evident also in the specifics of her family history. A significant point about her circumstances was the connection with substantial property inherited from her father,

Janardhan Pandurang Save.** Her mother's remarriage, permitted by her caste of Sutar, was however unusual for the upper-class elite, which, at that time, rarely witnessed the remarriage of an 'adult' widow, particularly one who already had a child.

A significant aspect of the different referents to Rakhmabai's caste as Pathare and Panchakalshi, apart from Sutar, is the contradictions thrown up by them from the point of view of customs prevalent among them, especially in the context of occupation, divorce, pat connections and women's access to property following remarriage. According to Steele, Sutars practised widow remarriage as a widow was entitled to make a pat connection.®? Enthoven describes the Sutars of Bombay as allowing widow remarriage in some places and not in others. Only widows attended the remarriage of a widow. (Sutars ranked above the Marathas and below the Vanis. The men dressed like Deshastha

Brahmanas or the Maratha Kunbis, the women like those of Maratha Kunbi caste.) Traditionally they were carpenters who made and mended ploughs and other agricultural implements. The town carpenters built houses and shops and pieces of furniture.

They claimed descent from the divine architect Tvasta and in the nineteenth century there was a movement among them to claim rank as Brahmanas.*° The Panchakalshis, according to Enthoven, were also known as Somavanshi Kshatriya Pathare, or as Sutars or Vadvals. Vadvals were managers of orchards, while Sutars were carpenters. The Panchakalshis traced their descent from Bhim Raja, also the ancestor of the Pathare Prabhus of Bombay, and hence their claim to Kshatriya status. (One can see from the above that different referents of the caste were seeking different affiliations simultaneously: as Sutars to Brahmanas, as Panchakalshis to Kshatriyas.) [The caste believed that originally they were warriors, but later took to agriculture and day labour. Under the Portuguese they became skilled mechanics and carpenters, particularly houseand boat-builders. Most of the Panchakalshis in Bombay were

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clerks and mechanics and some were in the learned professions.] They permitted widow remarriage, but it was not as common among them as among the backward classes. In most cases where a widow had a child she did not 'care to remarry' but there were exceptions. She then gave up all connections with her dead husband's family and they in turn kept aloof from her and her second husband on all public occasions. The remarried widow is described as giving up all ornaments from the family of the deceased husband, and this would imply that she gave up all forms of property, especially immovable property. Custody of children followed no particular rule and could vary according to the circumstances of the case.87

Pathares are described by Enthoven as found chiefly in the island of Bombay; their name signifies a fallen status believed to be fallen from warriors to 'writers'. They claimed Kshatriya status. In their role as writers they played a conspicuous part in the early settlement and development of Bombay and came to occupy positions of trust and responsibility under the British government. [Their monopoly of clerkships was so general that their caste name became a synonym for 'English writer'. By the late nineteenth and early twentieth centuries they were becoming successful lawyers, doctors and engineers.°8] No specific details are mentioned about remarriage of widows, or their relationship to the property of the dead husband following remarriage.

The description of the social and professional location of the four major men around Rakhmabai captures the various occupations of the Sutars, Panchakalshis, and Pathares enumerated above.

Rakhmabai's maternal grandfather, Harish Chandra Jadav, was a karkoon, a clerk in the Bombay government. He was born in 1825 in Bassein and brought at the age of six by his father to Bombay where he began his education in Marathi. He later went on to the Elphinstone School where he studied English.

Rakhmabai's biography (written by her grand-niece) which stresses the Somavanshi Kshatriya and Pathare aspects of Rakhmabai's caste, also tells us that the Pathares were known for karkoonships. When he was educated sufficiently Harish Chandra was appointed a clerk in the Bombay Presidency. He was reputed to have had beautiful handwriting and was appreciated for his general skills by the English who appointed him a Justice of the Peace. He was also proclaimed a Rai Bahadur at the Delhi Durbar because of his

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knowledge of English. He had access to Englishmen and his house was a centre for the 'progressive' men of his time.8? Harish Chandra taught his daughter, Jayantibai, to read and write. She was married to a young enterprising boy, Janardhan Pandurang, who was a contractor engaged in house-building. Bombay's rapid expansion clearly provided many opportunities and Janardhan Pandurang was a wealthy man when he died at an early age, leaving his wife widowed at nineteen. Rakhmabai was then only an_ infant.

Jayantibai is described as feeling 'orphaned' by the loss of her husband and so returned to her father Harish Chandra's house. At Janardhan's death Jayantibai 'inherited' substantial assets including movable and immovable property comprising three houses, a garden, household furniture, ornaments and other articles."°

While it appears that Jayantibai received the property through a will it is not absolutely clear how she retained it and whether her possession of it was challenged by Janardhan's distant male kin following her remarriage, because there do not appear to have been any close male kin.?! The rules of the caste are explicitly cited, both in the information on caste customs collected by the Bombay

Government" and in Rakhmabai's biography, on the custom of widow remarriage. However on the question of retention of the property following remarriage either there is silence or a certain amount of implicit information, as in the case of the Panchakalshis, just cited above, about forfeiture.2?

Since the caste of Panchakalshis/Pathares were clearly upwardly mobile and the Bombay courts generally applied the rule of forfeiture to the remarrying widow, Jayantibai's possession of the property could have been contested successfully if there had been male kin who tried to do so. However, the Bombay Government had even in 1886 allowed a widow to retain property from her deceased husband because of the existence of previous caste custom. They finally upturned this judgement in 1896 when all widows, dless of caste custom, were required to forfeit.24 There is thus regardles ; q evidence for a somewhat fluid situation both with respect to custom and the decisions of the courts. Since the evidence is not conclusive in Jayantibai's case it is only possible to suggest that it was to avoid the contradictions in the fluid legal situation with respect to widowhood, remarriage and property from the deceased husband that Janardhan may have used new legal channels such as an outright gift or a legacy under a testament to enable Jayantibai to

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hold the property even after remarriage, either for herself, or for Rakhmabai until she could inherit in her own right. Dadaji however alleged that on her remarriage Jayantibai, who had been made sole heiress to the property on the death of her husband, was disinherited by her second marriage and thereafter 'his wife'

Rakhmabai had become the sole heiress.?" Rakhmabai's biography states that Harish Chandra Jadoji was made the executor of the will and this is corroborated by Dadaji in his 'exposition'. The biography contests the view that Jayantibai was disinherited on her remarriage and specifically states that later it was Jayantibai who, of her own volition, gave the property to Rakhmabai, suggesting that Jayantibai continued to be the legal inheritor even after she remarried.

Jayantibai's remarriage itself suggests a mix of caste custom and new norms for widow remarriage. Caste custom could permit pat unions for a man who had already been married before, as Sakharam Arjun had been. He was a widower with no children.

But the new union was not merely customary. Jayantibai was acquainted with Sakharam and had corresponded with him about her views on the widow remarriage movement, then beginning to make its impact on the educated elite. Her honesty and frankness are said to have impressed Sakharam who chose her to be his sahadharmini, a very different connotation from the pat unions sanctioned by the caste.?" Sakharam Arjun represents another of the multiple trajectories of the Panchakalshi/Pathare/Sutar group of castes. Born into a poor family in 1839, he was educated at home till the age of eleven. Education however was clearly the key to his fortunes opening up. He proceeded to Elphinstone School and thereafter to the Grant Medical College where he received the LMP degree. He became a Professor of Botany, a teacher of Surgery and an author of many books, some of which were prescribed as texts.

Rakhmabai's biography describes him as the first Indian to receive such honours in his field, making him a well-known figure in the public eye at the time the Rakhmabai case hit the headlines. He too was appointed a Justice of the Peace, as well as Chief Surgeon to the Viceroy. He took a keen interest in women's issues, both writing and speaking about them among other social issues addressed by him in his capacity as a sudharak or reformer.

Rakhmabai and her younger half-sister attended some of these lectures. Just as Jayantibai had shown initiative in corresponding

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with Sakharam, Sakharam is described as manifesting his social concerns by refusing to marry a young virgin when he was widowed. Among the books he authored was one describing the ideal wife in a work entitled Grihini Kantha Bhushan, meaning the ornament that is the housewife. Rakhmabai is also described as growing up in his care and under his guidance."®

From the above account it is evident that the initial handicap of Sakharam's poverty had been surmounted by education, initiative and the new opportunities opening up to the urban professional middle class. Rakhmabai was educated according to the norms of this burgeoning class and her education included English. But since

English education and middle-class location had to meld with 'Hindu' values (specifically named as such by Jayantibai) and the ever-present requirement of the class to broadly conform to caste custom, especially an endogamous marriage, an early marriage (at eleven) was arranged for Rakhmabai to Dadaji, a distant relation of the family." In pursuance of the self-image of this new class however the family wanted an educated partner for Rakhmabai. It is not easy to discern whether such partners were available within the endogamous marriage circle in a caste which was sharply stratified from within into a tiny, prosperous, and professional segment and a large labouring and humble segment. Rakhmabai's appeal to the British Government to legislate on the issue of child marriage published in The New Review in 1890 refers explicitly to the difficulties of finding suitable partners since the caste system strictly prohibited intermarriage. In this context, it is significant that Rakhmabai's biography specifically points out that Dadaji belonged to its shramjivi section."""

This is consistent with the social profile of the caste as we saw in the case of Sakharam Arjun.

(Sakharam had however succeeded in transcending his background through education, professional opportunity and 'talent'.) Given the difficulties it is possible that the family considered that a boy, though poor, could be 'groomed' to be a suitable partner and in order to facilitate such grooming appears to have tried a variation

" of an established custom of the ghar jawai (resident son-in-law).

This custom is specifically mentioned as one of the practices among the caste of Sutars by Steele.!°! Rakhmabai's family probably secured a verbal contract with the family of Dadaji whereby the latter would be provided for by his in-laws, reside with them, pursue an education, !°? and thereby be transformed into a fitting

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partner for Rakhmabai. The arrangement suggests that the wife's residence was intended to be the conjugal residence for the young couple as it was here that the grooming could most effectively be carried out. One of the basic issues in the case in the court had been that the wife becomes a member of her husband's family on marriage and ought to reside with him as the husband has a right to her society.

Events, however, did not unfold according to plan for Dadaji.

Both parties to the dispute conceded that Dadaji had lived in Rakhmabai's house. From the evidence it appears that Dadaji was not educated enough to find professional employment but whether this was due to lack of enthusiasm or incapacity is not clear.

Rakhmabai's family alleged that Dadaji was under the influence of an uncle who did not conduct himself with propriety, and that he kept unsavoury company and developed 'bad' habits when he returned to live with his relatives. The non-consummation of the marriage, even after Rakhmabai reached puberty, was also conceded by both sides and is one of the most significant aspects of the case.

The forcible consummation of the marriage, implicit in the demand for the restitution of conjugal rights, became the central issue even though there were numerous other aspects to the case.

During the years that Rakhmabai stayed on in her natal family she pursued a pattern of existence that became popular in her class.

As a daughter of a social reformer, Rakhmabai joined the Arya Mahila Sabha in the early 1880s and became its secretary. Founded by Pandita Ramabai, it included the women of families such as those of Ranade and Bhandarkar.!3 The formation of a cross-caste class circle for women was a major change in inter-caste relations, given the restricted nature of inter-caste interaction for most people, and particularly for women. That such interaction was unusual even at the turn of the century is evident from the memoirs of the Brahmana playwright G.C. Kolhatkar. The playwright makes a special mention of the 'egalitarian' nature of his own childhood interactions which included Guravs, Sutars, and Marathas among his companions.! Part of the clash between the two parties in the Rakhmabai case — of which there are many complex strands — may be located in the changing self-image of a class, including its distinctive but hazy gender codes, as yet not properly formulated but clearly in a state of tension with older gender codes.

Some of the features outlined above are discernible in the

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arguments used by Rakhmabai in the court as well as in the correspondence attributed to her. There were three grounds given for Rakhmabai's unwillingness to go to Dadaji's residence and cohabit with him (all of which were unconventional in traditional

'Hindu' marriage). The first suggests notions of a class status that Rakhmabai was used to and considered herself 'entitled' to. The second suggests that the husband was to be a 'fitting' partner (in a reversal of the requirement normally laid down by a new class of men for their wives but also naturalised in their case, because all men had a right to a suitable wife who could be 'groomed' into her role in her affinal household where her in-laws had the authority and sanction to execute this task). The third suggests that there were certain essential elements to what made up a 'respectable' family. Caste similarity was thus not enough any longer — class socialisation and education needed to be similar for compatibility and a 'true' marriage.!°° Such a position outraged most people among the very elite that Rakhmabai belonged to, as is evident from a public lecture on the Rakhmabai case which was given by a surgeon called Kirtikar and which was published in the Mahratta.

Kirtikar proclaimed himself a friend of the family and therefore in a position to provide inside information on Rakhmabai's personality and educational training. He was very sceptical of her education and strongly objected to her lawyers having described

Dadaji as lie, which suggested that Dadaji lived off manual labour whereas he was 'merely working honestly'. Kirtikar ended his lecture by advising Dadaji to dump Rakhmabai, who was anyway unattractive even if she was rich, so that she could be 'left to study philosophy while he got on with being a coolie'.! There would be much public sympathy for Dadaji following Kirtikar's

'public' lecture, both as a deserted husband and as a poor man whose only fault was that he had married a rich woman.

Nevertheless, at least one sympathetic letter in the press recognised that had Rakhmabai been more 'fortunately wedded (and in the proper maturity of years) she would have been, with her accomplishments and her talents, the centre of a prosperous and happy family' .!°7 As in the cases of widow remarriage, in the Rakhmabai case, too, there was evidence of an uneasy relation of Hindu law to statutory law. But while in the widow remarriage issue a conscious move had been made to legislate in order to enable the remarriage of widows

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of the upper castes, in the case of restitution of conjugal rights there was no such clear move on the part of the British Indian administration. Instead the right had grown through a body of cases and consequently contradictions between Hindu law and statutory law were much sharper. The question of what constituted Hindu law remained as problematic in the Rakhmabai case as in the widow remarriage issue. Unlike the widow remarriage cases where caste custom was a crucial question in arguing the issue of the widows' forfeiture, the argument of the specificities of caste custom never became a central issue in the Rakhmabai case. However, the authority of the caste council was invoked by the defence, making it an implicit issue. The question of caste authority then became another strand in the unresolved tangle of legal questions relating to gender in the Rakhmabai case.

In analysing the issues which surfaced in this particular case, one that compels attention is the question of why Dadaji went to court to get Rakhmabai to come to live with him as his wife, and why he used English law to pursue this objective. Why did he not bring up the matter of Rakhmabai's refusal to move to his residence to live with him as his wife before the caste council of the Panchakalshis/Sutars? Does his appeal to the court, based on principles of English law, indicate that he considered the caste council either ineffective or unsuitable? Does Dadaji's action imply that by the 1880s the panchayats had no ability £6

@recute their decisions, only retaining a power to excommun ? Although effective at one level, this would be ineffective in making people act in certain ways. Or did the action imply that if anyone was ready to take on the consequences of the excommunication, the highest act of coercion the caste council was capable of, then they could do as they desired? Were the caste panchayats functioning in an urban setting at all? Was the power of the caste, especially among the non-Brahmanas, to enforce caste 'norms' on its richer members declining? More pertinently, could the caste council be effective without the coercive backing of the state which it may have had during the. Peshwai but could no longer avail itself of? (This is suggested by Malabari and may have been the reason why Telang invoked the authority of the caste as the appropriate body to deal with Dadaji's complaint. He was aware that the caste could excommunicate, and even fine, but not 'punish'.) Further, how effective could the caste authorities be against established wealthy

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members? Would the upwardly mobile Sutars/Panchakalshis, keen on building up the position of the entire caste, be willing to take up a problem like Rakhmabai's and thereby divide the caste within itself? !08

All these factors, and others, are possible reasons why Dadaji preferred the British Indian courts rather than appealing to the caste council. Most pertinent however, is the possibility that Dadaji recognised that the caste panchayat would only 'dissolve' the marriage but not be able to force Rakhmabai to perform her duties under the law of conjugality. Dadaji's appeal to English law is most likely to be an indication that only under it would the new relationship between conjugality, residence, and property, which appears to have been crucial in the Rakhmabai case, enable Dadaji to make Rakhmabai shift residence gain 'independent' control of her own property, and thereby bring it under Dadaji's control.

In this context it is useful to explore the allegations Dadaji made against Rakhmabai's family. In a pamphlet published on 14 April

1887, when the contest over Rakhmabai's person was at its height, Dadaji stated that the root cause of the dispute between him and Rakhmabai was the refusal of his selfish in-laws, to part with property worth Rs 25,000 which had been left to Rakhmabai by her father and which 'ought' to have been his. The contest over her person and where she resided was as much about property rights

(especially because immovable property was involved) as about matrimonial rights, with the two being inextricably linked in this case. Dadaji, who otherwise earned Rs 30-40 a month when he found work, and lived with and was dependent on his uncle, staked himself as the legal owner of Rakhmabai's property. He had been careful however not to formulate this claim in the suit instituted by him, where the issues were framed as the right of a husband to his wife's 'society'. However, the 'exposition of the facts' in the pamphlet suggests that property was the central issue of the case.

Dadaji even went on to make clear that such a contest over property could happen in any family and had no connection with the family being Hindu or non-Hindu. (The public however saw this as a contest over the nature of Hindu marriage and the Hindu wife's obligations, not over property in a 'Hindu' family.) Rakhmabai's response to Dadaji's pamphlet also deals at length with the issue of property, its actual worth, and the nature of the arrangements by which she received income as she defended the charges against her

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mother's selfishness.

On her death almost sixty years later, Rakhmabai's will provided for a detailed distribution of her property among her natal kin and others with whom she had developed a close attachment during her years as a doctor.'

The crucial question that had been posed by the Rakhmabai case thus was: who is the 'custodian' or controller of a married woman's property when she inherits from her father? It appears that Dadaji regarded such a question as resolvable only within the framework of English law. Under English law, as applied in India, Dadaji's move to seek restitution of conjugal rights could have given him custody of his wife's person, and therefore of her property. Even if she failed to be 'restored' to him through her refusal, the changed law in England had introduced the payment of alimony rather than imprisonment.!!® If the courts had provided this remedy, which Dadaji may have hoped for rather than imprisonment, he would have gained access to some part of her income.

Given the entangled nature of the issues raised in the Rakhmabai case one of the anomalies of the proceedings thus came to be that those wanting the wife to perform her duties appealed to the British

Indian courts and argued also that the English law of restitution should be applied not just to Mohammedans and Parsis but also to Hindus,!!! whereas those holding the relatively 'liberal' position of Rakhmabai's right to refusal used the argument (even though somewhat ambiguously) of the inapplicability of the law on conjugal rights to Hindus. Of course we must bear in mind that what constituted 'Hindu' law or 'Hindu' custom remained open to interpretation. Was it textual law for the upper castes and customary law for the lower castes as suggested by the disputes over the widow remarriage cases? In this context, a notable feature of the Rakhmabai case is that the question of Hindu law as used by all the parties, lawyers, judges and those who used the press, appears as a homogenised entity rather than disparate, or unique according to caste. As we have seen, caste custom was the central feature of the cases relating to widow remarriage and forfeiture. Why was

Hindu law treated as a unified entity in the case of Rakhmabai but not so in the widow remarriage cases? Was the question of a wife's refusal of the husband's right to cohabitation a cross-caste, cross-class issue and therefore having the widest applicability?

But if we recall the history of caste contestations and the fierceness with which the Brahmanas resisted the homogenising of

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gender codes against the traditionally discrete cultural and ideological arrangements dictating caste behaviour, the problem that arises is: was the homogenising of all existing codes into a unified Hindu law an uncontested process? Further, how did the Brahmanical elite reacting to legal changes, especially to unified notions of family which traditionally had been organised around a set of distinctive norms and rules as a means of maintaining hierarchy and difference?

These differences were being steam-rollered through codification and notions of one set of laws for all Hindus. Or do we understand that the process of class formation and an embryonic 'national' identity created the conditions for the emergence, within a largely Brahmanical model, of unified gender codes which obscured the contradictoriness of earlier codes for women based on class and caste? That something of this kind had begun is evident from the critique of the process from the anonymous Hindu lawyer we cited earlier.!!*

Some of the characteristics outlined above may be discerned in Telang's arguments in favour of Rakhmabai's refusal to go to Dadaji, organised around the dual position of a unified Hindu law on the one hand and a recourse to caste authority on the other.

However, what Telang left unsaid when he asked Dadaji to go to the caste council is the precise custom or text under which the caste authorities might decide the case. The unresolved relationship between caste law, Hindu law, and statutory law remained even in the arguments put forward by those arguing the case. In contrast,

Mandlik's position, which was firmly supportive of Dadaji's claim over Rakhmabai, was that caste usage had become subsumed under Hindu law. The multiplicity of the local and customary usages were swept aside and Mandlik created in its stead a unified 'Hindu' law under which Rakhmabai must perform her conjugal obligations.

A central feature of the Rakhmabai case was that all the persons involved in framing the issues, the lawyers on both sides and the judges who gave differing judgements, based themselves either on Hindu law or on consistency of the English law with Hindu law but then went on to interpret it differently, sometimes in diametrically opposite ways. Using force to make a woman live with her husband was thus both the essence of the Hindu family structure according to Mandlik and antithetical to the norms of Hindu law according to Telang. Further, for Mandlik, the force husbands could apply to their wives was almost naturalised with

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respect to the 'traditional' system. In his view 'caste heads had always received complaints from Hindu husbands and these authorities had always compelled wives to go and live with their husbands.'!!3

The specific features of Hindu law were also sharply contested in the larger court of public opinion in which Rakhmabai was being tried. The differences in the positions in terms of issues with legal implications were the question of 'Hindu' marriage as sacrament, the necessity for consent, the point at which a Hindu marriage became binding — whether at the time of the marriage rituals or at the time of the consummation — the indissolubility of the tie, and finally whether the laws themselves were immutable or changeable, and if changeable, who had the power to change them.

As we have seen in the discussion on widow remarriages the sacramental nature of marriage for women had been conceded in the case of high-caste women but equally its non-sacramental nature was broadly endorsed in the case of lower-caste women by accepting its dissolubility at different points of time for different low-caste groups. In Rakhmabai's case, interestingly, a direct position on the non-sacramental nature of marriages amongst the Sutars (which had enabled Rakhmabai's mother to remarry according to custom) was not highlighted. On the contrary it was always 'Hindu' law, in its liberal reformist interpretation, which was invoked. Implicitly, the defence for Rakhmabai was working with notions of a marriage as something closer to a contract (recalling the dissolution of marriage amongst non-Brahmana castes), and at the same time reformulating the sacramental aspect of a Hindu marriage as based on consent and the act of consummation. In a sense the central question here became: could Hindu law endorse a consummation against the will of the wife — that is, could one sanction what would amount to the rape of a wife to uphold a sacred marriage? This in particular seemed to be unthinkable for Telang, Malabari and Raghunath

Rao. The Indian Spectator, Malabari's paper, argued that Hindu marriage was a sanskara only when women gave intelligent assent to it2'4 Raghunath Rao argued that no marriage amongst Hindus was complete without consent. Vamanji Modak endorsed the right to personal liberty and the centrality of consent in marriage, which he lamented had been lost sight of in 'our country'.!!> (According to Kane [citing Brahmanical texts], a woman who refused her husband sexual access could be defamed in the community and turned out

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of her house but this was not a delinquency for which she could be imprisoned.)!!¢ The view that the Hindu marriage was a sacrament but in order to become a sacrament it must be consented to by the husband and the wife led inevitably to the position that infant marriages were an anomaly in Hindu law. This was the view of one section of the reformists in nineteenth century western India. From this followed the archetypal fears of Hindu society, generated by the Rakhmabai case. The Times of India had, for example, hailed the judgement of Pinhey as 'a shrewd blow at the whole system of infant marriages, a blow that coming from so authoritative a quarter, could not fail to have a most wholesome influence in the direction of reform'.!!7

No wonder the Native Opinion, Mandlik's paper, regarded that Pinhey's judgement had struck at the root of the marital tie and that it was entirely subversive of the 'principles that have governed society for ages'.'!8 Fully conscious of the strength of opinion which supported Mandlik rather than the Times of India, the judges

Sargent, Bayley and Farran were apprised of the pitfalls of assuming a position that a marriage without consent, 1.e., an 'infant' marriage, was not obligatory upon the parties. If they took such a position the entire edifice of Hindu marriages would collapse as pre-pubertal marriage for girls was regarded as the essential characteristic of the normative marriage structure among the Hindus. It was impossible to argue that marriages of children among Hindus were not perfectly valid merely because the wife had no voice in the choice of the husband. The judges Sargent and Bayley had therefore stated emphatically that the marriages of Hindu children were perfectly valid without the exercise of volition on their part. Basing themselves on the 'religious' nature of Hindu marriage (since the precepts of Hindu law treated the marriage of daughters as a religious obligation imposed upon parents and guardians), they rejected the purely English point of view which saw in marriage nothing but a contract to which the husband and wife had to be consenting parties.!!?

The fears that the Rakhmabai case aroused and which reverberated in the Age of Consent issue during the next few years were the implied devaluation and disavowal of the non-consensual marriage. Consent and pre-pubertal marriages for girls were mutually contradictory and the law of the land, it was emphasised, did not require the girl (in whose case the taking of consent was an

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impertinence) to be a party to the contract. She was the subject of a contract into which her parent or guardian entered. The validity of the non-consensual infant marriage thus inevitably became the focal point of the legal and social implications of the Rakhmabai case.

Malabari recognised this when he summed up the issue before the court — acceptance or refusal to sanction the' validity of unconsummated infant marriages. !2° Since Rakhmabai's marriage was unconsummated the anxiety about the court's upholding of Rakhmabai's refusal to cohabit with Dadaji was doubly threatening.

This was because in the 1860s William Muir had suggested that the courts should refuse to recognise unconsummated marriages.

!7!

If the courts had upheld Rakhmabai's refusal every unconsummated marriage could be struck down as null and void. It was this possibility that made Rakhmabai's case so controversial. Other restitution cases initiated by the husband had come up before the courts, one going all the way up to the Privy Council, but these had hardly caused a ripple. It was because Rakhmabai's case involved the issue of unconsummated, infant marriage, and came at a time when public opinion of Hindu nationalism was ' consolidating, which in turn was so closely tied to gender identity, that it caused such a storm.

The absence of consent and the right to repudiate an early marriage when it came to consummation and formal cohabitation also destroyed the idea of the marriage as a sacrament. The eminently rational but conservative Mahratta captured the anxieties of "Hinduw' society but also the trap that most reformers themselves were in over the question of 'infant' marriages. Consent, intelligent consent, would mean pushing up the age of marriage for girls to 15 or 16, which no reformer was at that point willing to advocate openly. The reformist elite was thus pushed into a corner over the question of consent, marriage as sacrament, and the almost universal practice of early marriage. When Farran ultimately ruled. against Rakhmabai he partially set at rest the fears that Rakhmabai had unleashed in Hindu society. Tilak's paper summed up virtually all the anxieties arising from the Rakhmabai case when a reader pointed out that over the years the courts had left little powers to the castes and religious organisations by assuming jurisdiction over social matters such as the enforcement of caste discipline.!?? If the courts were now swayed by 'personal considerations' there would be no law left at all. The question before the court was not to

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change the law to provide relief for a particular individual but to ascertain the law of the land. The court had to decide whether

Hindu marriage was a sacrament or a contract. Dadaji's 'Exposition' appearing in the Mahratta held that 'from the days of the rishis onwards' marriage was regarded as a sacrament in Hindu law and the saptapadi made it binding on both sides.!23 Consummation was a distinct and separate ceremony after that of the marriage and had nothing to do with its validity or otherwise. The sacredness of the marriage tie would have been in danger if Rakhmabai had succeeded. Farran's judgement prevented this.

The Rakhmabai case was the first of its kind wherein a married woman publicly refused to discharge her marital duties and it was therefore bound to be dramatic. This was not strictly true. In a sense Rakhmabai's guardians were perhaps the ones who had retracted the conjugality implied in the marriage on specific grounds and may have either supported her decision or even decided for Rakhmabai. However, to the public that was avidly following the case it was perceived as a case of a wife's refusal since

_ that was how the issues were framed and how the court itself treated Rakhmabai — as a woman with a will of her own. The anxiety aroused by Rakhmabai's refusal to cohabit with her husband thus was one that arose not merely from the British Indian courts via

Pinhey declining to uphold the sacramental and indissoluble nature of the Hindu marriage but from a young wife disavowing the marital obligation. The anxiety was heightened by Rakhmabai's arguments for the disavowal, the incompatibility and unworthiness of the husband. The fact that Rakhmabai was 'English'-educated and a woman of substance clinched the fears of the upper-caste middle class. Every Hindu bride from this class could do what

Rakhmabai did, drop the facade of 'willing' surrender and refuse to conform to the ideological and material arrangements of nineteenth century Brahmanical Hindu patriarchy. As one. anxious male put it, "Was the peace and happiness of the whole of the Hindu society to be disturbed by one single individual?'!?4 Aware of this anxiety,

Dadaji invoked the need for Hindus to do all that lay in their power to render a union between a Hindu man and a Hindu woman happy. He also warned that 'wilful, disobedient persons' (meaning wives) would follow the Rakhmabai example and thus all marriages would be affected. He alleged that non-Hindus would not understand 'this matter' but the 'true Hindu would suffer

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' martyrdom for it'. Those who were his 'true co-religionists' would understand Dadaji's feelings and the danger represented by Rakhmabai's stance.!?> Another letter in the Mahratta by a man assuming the pseudonym of 'Sobriety' charged Rakhmabai with 'wanton opposition to the law of the land'. The writer was convinced that Rakhmabai had very few supporters among "Hindus proper', implying that neither Rakhmabai nor her supporters were real 'Hindus'. The man also declared that while he was generally

'conservative' about government action, in this particular case he would support it because it was necessary to apply coercion to recalcitrant women.!?6

For Tilak and his newspaper, the Mahratta, a conservative position on Hindu womanhood was central to the agenda of garnering support from the upper-caste elites for a militant Hindu nationalism and Tilak's first public foray to consolidate opinion was over Rakhmabai. Ably served by the contradictions in the personal lives and the ideologies of the reformers, Tilak found the Rakhmabai case a good launching-pad for his attack on the reformers' position on women in which education would have been the least controversial plank. Tilak's newspaper readers were however opposed even to this, and Rakhmabai's education and her unwillingness to accept an uneducated husband, bandied about in the press but never made a part of the legal argument, came in very handy in the onslaught on education. 'It is said that education expands and purifies the mind. But what is the case now? The thing is that God has so made the females that they are quite unworthy of either liberty or enlightenment,'

!*" wrote an anxious reader who ended by arguing that supporting education would be a foolish thing to do in light of Rakhmabai's behaviour. Another newspaper also located Rakhmabai's rebellion against her lawfully wedded husband in her western education. She had consequently become a 'foolish ill-advised and imperious young woman' who was inspired with 'fine' notions of independence and freedom which western education had instilled into her.!*8 A letter to the Mahratta also outlined the alternative to a system of training which alienated a woman from her own religion and people. This could only be ensured through a thorough training in Hindu ways. The Shastras were a means to avoid the pitfalls of Rakhmabai's training and the Shastras had clearly said that 'all she has to do to [is] to worship her husband and thus she will become famous in heaven'.!??

Law, Colonial State and Gender

The traditional model of womanhood, discarded by Rakhmabai, was recommended to her at various points but particularly when

Farran decided on imprisonment if she continued to withhold conjugal rights from her husband. It was suggested that the remedy lay in Rakhmabai's own hands as she could still go to her husband.

In this way she would 'immortalise' her name.!%° Recalling Manu, it was pointed out that as a woman Rakhmabai was not her own master and never could be so at any point of her existence. Marriage was a sacrament among Hindus and no /aw could untie the marriage knot, not even the legislature. The sacred bond of marriage, a central feature of Hindu tradition and therefore of Hindu law, was too elevated to be contested by recourse to such concepts as 'justice, ny and good conscience'. Hindu wifehood was above such notions.!¥!

Throughout the attack on Rakhmabai as a spoilt western-educated woman, parodied as flying to her een and reading Milton rather than nursing her ailing husband,!¥* (someone who had disavowed her marital obligations but also the unique sacred traditions of Hindu womanhood), there was a play on the figure of Savitri and of Rakhmabai having turned her back on this powerful image. Since

Rakhmabai's husband was alleged to be suffering from a lung disease, the Savitri example was particularly evocative. Savitri had known that her husband was bound to die and yet had chosen to marry him. Thereafter she had managed to snatch her husband back from the jaws of death by her wifely devotion; in contrast the new woman, exemplified by Rakhmabai, was refusing the chance to be immortal and a modern-day Savitri by even attempting to be a ministering angel to him. According to the newspaper, this would have provided a model which would be imitated all over India.'%?

From the failure of western-educated women to hold on to the eternal values of Hindu culture embodied in Savitri it was natural to move to that favourite terrain of Hindu nationalists, the east versus west, non-consensual 'sacred' marriage versus consensual/contractual marriage. Rejecting the model of consensual marriages which was tantamount to a 'civil', desacralised arrangement for sexual fulfilment in contrast to the sacramental nature of Hindu marriage, the occurrence of 'social' scandals was highlighted. This brought into disrepute the system of consensual marriages which was not capable of ensuring domestic and social happiness.!34 The argument of the superiority of Hindu family

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structures and the examples of Hindu womanhood, especially that of Savitri, permitted most men to deflect the central legal, social and moral questions raised by the Rakhmabai case: should she be forced to consummate her marriage to Dadaji against her will?

Using force to uphold conjugality where consummation had not yet occurred became the focal point of embarrassment for the British Indian administration, the Anglo-Indian press supporting

Rakhmabai, and even the 'rational' conservatives, especially when Rakhmabai forced the court to decide her fate after stating her own position in no ambiguous terms: she would not go, not even if the court upheld the right of restitution of 'conjugality' to Dadaji, preferring the severe punishment of imprisonment still in existence in the rule books. Once the court ruled imprisonment for 'recusancy' the question of a false and forced consent as inhering in the law on conjugality became apparent.

Neither the Anglo-Indian press, representing broadly the English point of view, nor the Hindu middle class would concede that it was right to use coercion to enforce conjugality upon a wife and sought to shift the onus away from their own positions on how to deal with an unwilling wife.

The British Indian administration, in particular, was in a fix.

The judgement had been a natural consequence of its legal structures with its multiple laws, ambiguity about what the law in each case was,!9° overlapping legal jurisdictions and institutions, its political concerns which determined how far it could go against a subject people, and its own investment in patriarchal institutions.

But because the judgement on imprisonment created new alignments and revealed contradictions in its own position as well as in the positions of those who had wanted conjugality to be imposed upon Rakhmabai, it was necessary to find scapegoats. The issue then became: was imprisonment a consequence of English law or Hindu law? The Anglo-Indian press which had supported

Rakhmabai on her disavowal of non-consensual marriage and was loyal to the British Indian administration, openly expressed its disapproval of the judgement and generally argued that the judiciary was forced into the unhappy situation since it was under oath to administer Hindu law; it was under Hindu law that coercion was applied on Rakhmabai and it was under Hindu law that she would go to prison. It was used also to exonerate the British administration of charges of despotism and to demonstrate

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the unfitness of Indians to rule themselves, and provided another opportunity to make derogatory remarks about Hindu society generally, !3¢ On the other side, it was equally imperative for those who had been arguing that Rakhmabai must perform her conjugal duties and that Hindu marriage was immutable, to distinguish between the legal arguments, the judgement on the validity of the marriage

(even in the case of an unconsummated infant marriage) and the 'enforcement' taking the specific shape of imprisonment.!3" This distinction, which even the opponents of Rakhmabai had to make, is what she finally achieved through the tortuous legal battle during which she consistently refused to accept the authority of the husband, 'Hindu' society, or even the state, to force her to cohabit with Dadaji. She probably knew that even Dadaji's 'party' did not want imprisonment because it was useless and it would not 'effectuate' the marriage; Tilak for example preferred the ° attachment of her property or alimony. This was more in keeping with Dadaji's interest. There was no point in pursuing a perverse woman like Rakhmabai in Tilak's opinion. Instead she should be punished by the court for disobeying its order by attachment of property or by the imposition of a fine.!?8

The judgement on imprisonment thus had to be disowned. The responsibility for it was put squarely on English law. The Hindu

Patriot, which sustained a conservative opinion on gender, captured the essence of the dual position on the final judgement in the Rakhmabai case. It approved of Justices Sargent, Bayley and Farran daring 'to enforce the Hindu law of marriage' but condemned the judgement on imprisonment as derived from English civilisation and law. Hindu law, in its view, looked upon the use of force on a woman with the 'greatest abhorrence', in contrast to the monster created by the British Indian law which had extended English civilisation to India. It was English civilisation that declared that the 'custody of a wife's person belongs, as a right, to her husband'.!3? The paper did not object to the bringing in of the restitution of conjugal rights but denounced the effrontery of attaching its faults to Hindu law. How the Hindu law of marriage could be enforced without handing over custody of a wife to her husband, even when she refused her consent to such an arrangement, was not the concern of the paper. It was, however, imperative to absolve the Hindu law of marriage of the taint of

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coercion, especially coercion applied directly by the state to a Hindu woman even if she was being recalcitrant and characteristically

_un-'Hindu' about her duties as a wife.

It must be noted though that not everyone was embarrassed about sending a woman to jail under Hindu law. As one satisfied male put it, the High Court's decision on Rakhmabai had been

'received with approval from one end of India to the other by the Hindu press because it was in consonance with Hindu law and tradition'. He wondered how the 'High Court could be charged with showing undue zeal with any approach to truth' as the Bombay

Gazette had done. According to him much capital was being made out of the fact that there was no text in the Hindu law books providing for the restitution of conjugal rights. This apparent omission was explicable in his view because the idea of the Hindu wife refusing to go to live with her husband was 'utterly absent in the minds of ancient text writers and commentators'. But he added:

This circumstance however does not make it very difficult to conjecture what their opinion would have been had a Rakhmabai arisen in their times. The religious writers who make it obligatory upon the wife to follow certain duties in order to promote the spiritual welfare of the husband even after his death would necessarily have provided a severe punishment for a contingency that would have become possible in this century.

!4° Crucial to the view of the writer of this letter were the principles underlying the basic structure of Hindu law. It was necessary to use coercion if the norms of Hindu law were to be upheld and the law would have to adapt itself to the contingencies made possible in a different time from that envisaged by the writers of traditional texts.

Another letter to the editor written about a fortnight later took on the argument that the 'old Hindu law did not recognise suits for the enforcement of marital rights and that there was no procedure to enforce the decree of the court'. The letter pointed to assurance provided by a 'friend from a first class Maratha state' that long before British influence was felt in the native courts, based on custom, the wife was taken hold of bodily and given in possession of her husband. In case this was not possible she was sentenced to imprisonment which, in that state, was far worse than rigorous imprisonment here.

The letter concluded that whether one looked at the evidence of

Law, Colonial State and Gender

Manu, Yagnavalkya, or the 'custom of our castes' or the procedure followed by the native courts in the native states, there was a means of enforcing marital rights and obligations through the courts of the land.!#!

The Bombay Gazette's position that it was absurd to ask the courts to enforce sacramental obligations, of which marriage was the most important, was unacceptable to most men in the nineteenth century not only because marital rights were at stake but also because other rights were involved. An editorial in the Mahratta summed up the position on the non-enforceability of sacramental obligation taken by the Bombay Gazette even as it suggested that Dadaji should accept a settlement out of court:

Enforcement of obligations [is] legal in Hindu law. Manu [VIII 335 and 371] and Yagnavalkya [II 237] both the highest authorities empower a king to punish the defaulting wife... The authority of the castes now vests in the courts and it is natural that they should now have the same power of enforcing their decrees which the castes and the king had under Hindu law... We have no objection to a special sanction made by a competent authority in the case of Rakhmabai, but there can be no law without sanction... If the Bombay Gazette position is accepted the whole property law of the Hindus based as it is on rights arising out of sacraments such as marriage, adoption etc. must cease to be enforced henceforth.

!42

Here was a recognition that marriages were not merely about ~ sacramental obligations that wives must render to husbands but also about property. This was amply evident in the Rakhmabai case which went far beyond the Hindu law on marriage and conjugal rights as it inevitably threw up issues of the relationship between marriage, conjugality and property even as the debate in the press tended to sweep property under the carpet.

The contradictions and shifts in the position of both sides in the Rakhmabai case were built into the entangled understanding of the law, whether English or Hindu, especially the latter, and the complicity of both in upholding patriarchal structures. Only for someone like Malabari were the limitations of and contradictions between existing Hindu customs (accepted as Hindu daw by others but not by him) and statutory law, drawn often from English law, evident in their working out through the Rakhmabai case. At one stage he recognised the limited possibilities of a judgement upholding Rakhmabai's position when he said that although she

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had an able and supportive attorney like Telang, it was hard to see what could be done unless the final court of appeal refused to recognise the validity of 'unconsummated' infant marriages. While

Malabari recognised the coercion exercised by contemporary Hindu society where the 'caste' of the girl insisted upon pre-pubertal marriages, it was the 'cobbling process' of the British Indian legal system that had further created a severe anomaly by introducing the concept of the 'restitution' of conjugal rights drawn from English law ; such a law, a barbaric relic of ecclesiastical law, even in England, could never envisage a situation where it might be applied to the Hindu custom of infant marriages. It was completely contradictory to introduce what Malabari considered the 'unmanly' idea of the restitution of conjugal rights without importing the system of adult marriages. Although the root of Rakhmabai's problems lay in the existing Hindu custom of non-consensual marriages, the way an unwilling wife like Rakhmabai was being legally 'hunted down' was English. He strongly denounced the way the judges were upholding a marriage into which a Hindu girl was being forced by caste (custom), a marriage to which she was 'as much a party as any of the judges of the court'. Instead of striking such a marriage down the judges had actually offered to serve as 'constable and jailor' and had completed the outrage by conveniently shifting the onus of the outrage upon the law of the Hindus.!43 Malabari was acutely conscious of the fact that in the late nineteenth century though the caste council had the liberty to deal with a recalcitrant member it had to stop short of resorting to physical violence, the right to which was vested solely in the British government. The British government in India alone had the power to' execute action against Rakhmabai (or 'release' her from her conjugal duty) and it was choosing to use its coercive power over her by threatening her with imprisonment. In Malabari's anguished writing we can see the interlocking dimensions of different patriarchies working together to uphold marital rights and obligations drawn from overtly dissimilar cultures and legal codes but performing similar functions. While the numerous questions raised by the case are only beginning to emerge in outline and are impossible to resolve in this work, a tentative analysis of the case

| suggests that the interlocking of an indigenous patriarchy with new forms of patriarchy brought in by the colonial state produced a situation where apparently spaces opened up for women but were

Law, Colonial State and Gender

simultaneously restricted. The choice available to Rakhmabai of resisting a forced consummation had become possible partly because of her specific circumstances, a natal family that regretted the marriage they had contracted for her, the caste to which she belonged, and her relatively secure position in a certain class and urban domicile which possibly put her outside the power of traditional caste authority and social disapproval — all of this was being now denied by another structure of authority. Both structures upheld patriarchal ideologies and institutions and could therefore co-exist with each other. Ultimately, when Rakhmabai 'bought' her freedom under the compromise, it was not dissimilar to compensation, which could have been worked out in the caste panchayat, for husbands whose wives left them among many non-Brahmana castes. Through a circumlocutory process, the issue ended where it could have begun. However, the issue of non-consensual marriages and the rights of husbands within them, although severely tested, remained more or less where it was: upheld by a cross-cutting alliance between 'Hindu' society and the colonial state, 144 IV The problems inherent in a non-consensual marriage which had been at the heart of the Rakhmabai case surfaced once more in the Age of Consent controversy. The central issues, as they were portrayed by the defenders of Brahmanical customs, revolved around the religious practices of the 'Hindus' in pursuance of their religious goals, and the colonial government's lack of authority to legislate in matters of religious observance. For the reformers and the colonial government the question was of 'protecting' the child wife from being subjected to a premature and often forced consummation. The debate was conducted in a highly charged atmosphere with the anxieties of the Hindu middle class about their place in society, and their unique identity, overlapping with a new and aggressive stage in nationalist politics; together they coalesced to produce the cry of 'religion in danger'.!# Characteristically, the feverish passions unleashed were about religious observances affecting the most private arena: the marital rights of Hindu men over their wives.

The roots of the Age of Consent Bill are traceable to the

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continuing problem of the nineteenth century: the 'status' of women, especially widows, whose condition was attributed to the practice of early marriage. Malabari's collection of his tracts and lectures linking widowhood with early marriage was published in 1884146 and became the starting-point of a push towards statutorily raising the age of marriage for girls. Malabari's radical views on consequences of early marriages were not, however, shared by all reformers and even the government was reluctant to support the series of measures he recommended to discourage the practice of early marriage. The government expressed its reservation by arguing that the legislature should not enact new laws and place itself in direct antagonism to social opinion.'4" As a compensation to the reformers, who too had to be placated, it even went so far as to suggest that the government would consider introducing legislation to amend the 1856 Widow Remarriage Act to allow the remarried widow to keep property inherited from her first husband, which was not a proposition that the reformers supported! 48 (see Ranade's position on this discussed earlier on p. 132)

An alternative suggestion put forward by the reformers was to leave the question of regulating the age of marriage and, instead, augment the law on the age of consent for legitimate sexual intercourse with girls, fixed at 10 in the Indian Penal Code in 1860, by raising it to 12.4? This was regarded as a way out of the impasse by the reformers as it would merely extend an existing law rather than introduce a new one.

The shift in focus from early marriage to premature consummation, however, created an unexpected legal problem by separating the ritual of marriage from the consequent sexual cohabitation between husband and wife. Further, the Age of Consent Bill, by laying down when a man could have sexual access to his wife legally, also deemed premature access to her rape. This legal position was unprecedented in English law, which did not recognise rape within marriage as a possibility, presumably because marriages in England were regarded as consensual. In England the opinion of Lord Hale stood: it was considered that the husband cannot be guilty of rape committed by himself upon his lawful wife, for 'by their mutual matrimonial contract the wife hath given herself up in this kind unto her husband'.!°° Thus in one stroke marriage practices were doubly devalued in India and public attention to the issue was therefore enormous.

Law, Colonial State and Gender

All the contradictions inhering in the changed relationship between family, community and the state, as reflected in the laws on marriage, now came to the fore.'! Significantly, although the Age of Consent controversy was conducted in somewhat abstract terms and as applicable to all women rather than on substantive issues arising from an actual case, it followed the shocking death of 10-year-old Phulmoni through forcible intercourse by her 35-year-old husband.!°? The judge, though sympathetic, found his hands tied and ruled that the charge of rape was inapplicable because Phulmoni was 10 and intercourse was legal according to the 1860 law. Justice Wilson had admitted the brutality involved but pointed out that neither 'Judge nor Juries have any right to do for themselves what the law has not done'.!°? The government used this case and the wave of moral revulsion in some quarters to hastily introduce legislation raising the age of 'consent' to 12 in the case of women.

The issues arising from the proposed Bill were therefore debated against the backdrop of Phulmoni, and Harmaiti,!>4 the husband who had caused her death, became synonymous with male brutality. The guilt that some of the male reformers had felt about women's oppression was heightened by this dramatic uncovering of the bestiality of men. Dayaram Gidumal had referred with disgust to the dark side of male nature where men 'brutalised women by their sensuality', and 'imposed their wills upon their wives in sexual matters placing no restraints upon themselves')? even before Phulmoni's death. And after her death it was Bhandarkar (who had found nothing reprehensible in early marriage) who captured most effectively the anguish of reformers faced with the plight of the Phulmonis:

Often the marriage of a girl, under certain circumstances, proves her death warrant. This matter has within the last few years forced itself powerfully upon my observation.

A young man of 30 or 35 loses his first wife.

Straightaway he proceeds to marry another who is a girl of 10 or 12. That girl dies by the time she reaches 20; another takes her place immediately thereafter. She too dies similarly thereafter... A great many of such cases have occurred within the last few years. The medical men whom I have consulted say that the results are due to the marriages being ill assorted, that is, to the great inequality between the age of the girl and of the strong vigorous man. I do not know how to characterise these cases except as cases of human sacrifice.!°°

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Such anguished feelings of guilt and disgust aroused by the death of Phulmoni had to be aggressively countered by the supporters of traditional Brahmanical patriarchal practices.

Further, since Phulmoni, unlike Rakhmabai, could not be attacked, nor could Harmaiti be publicly defended,!*" the issues raised were those of religion and 'nation', and the authority of an alien state to legislate on the nature of Hindu marriage.

Those opposing the Bill built their arguments essentially on its being violative of the religious practices of the Hindus. Using a text of Raghunandan which was regarded as prescriptive in Bengal it was argued that it was incumbent upon the Hindu husband to have intercourse with the wife immediately following the first menstruation to complete the garbhadhanam, thereby ensuring the purity of the womb and of the future offspring. Since the onset of puberty could vary but was likely to occur before 12, the proposed legislation would violate the 'dharma' of the Hindu. The second argument used was that since the ceremony of the garbhadhanam was a religious practice and the Queen's proclamation of 1858 had guaranteed non-interference in religious matters, the government had no authority to legislate on such an issue. These arguments were first raised in Bengal where the erstwhile 'reformer' R.C.

Mitter opposed the Bill,!°* but they soon gained currency elsewhere including Maharashtra, where Tilak used them to great effect in his battle for his own political constituency against the Brahmana reformers. !>?

The arguments of the opponents of the Bill were most effectively countered by Telang, an eminent jurist of Hindu law. Telang advocated the view that the sovereign owed it to her/his subjects to 'protect them from harm', and that far from being 'meddlesome interference' this was the paramount duty of the state which was constituted primarily to 'secure life'. Using the testimony of the Phulmoni case as evidence he pointed out that 'harm, unjust harm

— most fatal harm' was done to Hindu child wives by their husbands 'prematurely claiming to exercise their so-called marital rights' upon their persons.!® Did the opponents of the Bill, queried

Telang, consider that the 'Queen had pledged directly or indirectly not to interfere to either prevent or punish such harms?' Further, did the opposition believe that all enjoyed the equal protection of the law when a girl could be ravished by her husband with impunity even before she became 'apta viri'?!®!

Law, Colonial State and Gender

On the question of the 'Hindu' custom of garbhadhanam, whose validity he questioned and interpreted very differently, he shifted the focus from rights to duties. Telang's position was that there was nothing like 'unrestricted rights of husbands' and that the duties of the husband had to be consonant with the wife's well-being.

Further, the sin of killing foetuses by not giving unrestricted rights of the husband to the wife was a 'legal fiction'. In any case the alleged sin, even if it was so regarded, could easily be expiated by doing a few breathing exercises (pranayamas) or spending a few annas.!©2 (This was not appreciated by Tilak.!°3) There was thus no major dilemma in his view for the 'orthodox' Hindu husband as suggested by R.C.Mitter.!°4 Tilak's position that Hindu husbands should not be compelled by British law to flout the law of the Shastras was rebutted on the ground that even if it were to actually have such an effect, 'Marathas', as he put it, should not object to the breach of such rules in order to save Hindu women from 'inhuman' cruelty.!®

Telang was rejecting the implicit argument that governmental authority could not go into certain sacred spaces — the marital bed

— which the opponents of the Bill were representing as central to the 'religious' observance of the Hindus.

Telang's celebrated step-by-step and exhaustive rebuttal of the traditional defenders of the 'Shastric' position on grounds of a rational interpretation of law, custom and Shastras, and of women's entitlement to the protection of the state, was rarely matched by other participants in the debate. However, a number of issues arose in the course of the public debate on the Age of Consent Bill which we will briefly outline here.

The first point to note is that the Age of Consent debate was the most publicly conducted discussion on female sexuality that India has witnessed in a long time; consequently the woman's body was subjected to unprecedented attention. The central issue on both sides, those arguing for the age of 12 and those arguing for the

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status quo, i.e., the age of 10, was to pinpoint the age when women menstruated and were therefore fit to have their marriages consummated. Medical evidence was confined to those arguing for raising the age to 12. A variety of arguments linked together by Dr

Mahendra Lal Sircar regarding menstruation, pubescence, and the age at which a girl achieved the capacity for child-bearing are summarised below:!®8 Early marriage is the greatest evil of our country. I am inclined to date the fall and degeneracy of my country from the day Angiras uttered the fatal words which became law (i.e., that the learned should give their daughters in marriage whenever they reach the age of 10). This custom has had a disastrous effect on the deterioration of the race. The generations being born at the moment in the eyes of modern medicine, or of our own ancient Ayurveda, are no better than abortions or premature birth. This view of the state of things imperatively demands that for the sake of our daughters and sisters who are to become mothers, and for the sake of generations yet to be born but upon whose proper development and healthy growth the future well being of the country depends, the earliest marriageable age of our females should be fixed at a higher point. The commencement of menstruation is an index to the commencement of puberty but it would be a grave mistake to suppose that the female who has just begun to menstruate is capable of giving birth to healthy children... When we see a girl beginning to have the monthly flow we should not only watch anxiously its course and regularity but should also watch the other collateral developments of womanhood to be able to determine the better time when she can become a mother, safely fo herself and her offspring...!©° It is clear that for Mahendra Lal Sircar, and many others who thought like him, there were two major foci of concern: one was the woman's body and the irreparable damage that could be done to it. But the other cause for concern was what the pernicious custom was doing to the 'national' body — thus, the woman's body was also the nation's body and irreparable damage was being done to both. To attack existing customs, responsible for such damage,

Sircar marshalled the support of two systems of medicine — the ancient indigenous system and modern western medicine. Armed with the premises of both systems Sircar privileged what he regarded as the 'intention' of nature over the dictates of religion and topped his argument with a definition of 'true' patriotism which is concern over the pernicious custom of child marriage.

Law, Colonial State and Gender

Sircar also took up more squarely certain reprehensible social practices affecting women's bodies, which subjected them first to artificial methods to hasten the process of pubescence. But more offensive were the practices which subjected child wives to sexual relations by 'brutal' husbands supposedly sanctified by religion.!7°

There was thus a category of girl wives who required the paternalistic protection of enlightened men and the state.

Unfortunately, since men were unwilling to raise the age of marriage there was no alternative to the amendment proposed by the state. It was the 'obstinacy' of men that led to an amendment introducing the offence of rape into the institution of marriage:

The IPC has (already) made provision, however slight against outrages by brutal husbands by constituting sexual intercourse by a husband with a wife under 10 years of age as rape in the eyes of the law. Protection to girls under 10 is not really required as intercourse with a girl below 10 is not really usual. But little ones between 10 and 12 do need protection as they are regarded as fit for becoming mothers...

Deeming intercourse between husband and wife as rape under any circumstances looks like an absurdity and anomaly, subversive of the very sacred character of marriage itself (emphasis added) and jars upon common sense and aesthetics. Better then to raise the marriage age. But since that is impossible at present there is no alternative to the present amendment.

It is a matter of extreme regret that (such a question) has to be settled by legislative interference and not by the 'good sense of the community' to which I had appealed twenty years ago.'7!

Sircar was strongly condemnatory of his countrymen for forcing the kind of situation upon society that it was faced with by 'bolstering up rotten texts', and conveying to the world that the Hindus had for centuries 'in the exercise of marital rights and under the sanction of religion been committing the gravest and most brutal outrages on immature female children.' He was particularly aggrieved that the opposition was using the argument that their way to heaven was being obstructed and their religion was in danger if the garbhadhanam was not performed the moment a girl menstruated. This he regarded as a silly, suicidal, shameless argument:

It is a shameless argument because even assuming the commencement of normal menstruation [which he doubted] it is impossible for reasons better imagined in the majority of cases to enforce Shastric injunction without actual force, i.e., without rape in the literal sense of the term.'""

REWRITING HISTORY

Here was a situation when men were having to speak about the unspeakable, confront anomalies in marriage, think about brutal husbands ravishing their young wives, and recognise that there could be rape within the 'sacred' institution of marriage. No wonder Sircar was anguished by the arguments of the opposition: it created an impossible dilemma for those who actually wanted the age of marriage to be raised. Sircar himself suggested the age of 16 for women. For him this would have automatically excluded the possibility of rape within marriage. Even within the ambit of the proposed law Sircar gave expression to the dilemma he was in by suggesting a softening of the punitive clauses. He concluded his impassioned arguments thus:

This much I am bound to say that except for the peculiar circumstances of the country, the enactment which constitutes [sexual] intercourse between husband and wife as rape is an anomaly. The punishment, unless the intercourse is attended with personal injuries, should be much lighter than in the case of ordinary rape; it should, in my humble opinion, in no case be imprisonment. In other words it should be so provided that the punishment should never be such as to %e calculated to embitter the future relationship of the married couple.''> (emphasis added)

Sircar's last lines capture the contradiction for all Hindu men: marriage was a sacred institution; it was indissoluble. How could one 'protect' the girl-wife legally without jeopardising the marriage itself, especially when the entire community was complicit in upholding the existing practice? The opponents of the Bill shared few of the dilemmas of the reformers. While they were unable to marshal in any substantial sense their own medical evidence on the age of menstruation, they rejected the conclusions of the doctors collected by the supporters of the Bill. As Dagmar Engels shows, they tore to pieces the evidence of the Calcutta doctors: how had the gynaecologists amongst them surveyed the age at which girls menstruate without access to the zenana? How did they know the ages of the girls whose births were not registered? The views of the doctors, they concluded, were thus based on dubious scientific procedures.!/4 They rejected the opinion of the indigenous system of medicine too, arguing that its evidence was for girls of other regions. Charaka's evidence was particularly 'unreliable' since he had had the audacity to recommend beef broth for a certain ailment. Clearly he could not have been a Hindu.!"° In support of

Law, Colonial State and Gender

the opponents of the Bill a few 'native' doctors gave evidence to the Select Committee appointed for the purpose of gathering opinion on the issue. Among them the view was that puberty in India could often occur before 12, and that they had never seen an injury to a child wife from premature cohabitation. Since premature cohabitation was 'rare' there was no need for the Bill. In any case religious and pragmatic reasons were more important than imagined fears about girl wives in the hands of brutal husbands. It was the duty of every woman to give birth to pure sons; without the garbhadhanam the womb would be polluted and the impure sons would not be able to offer the pindas (ritual offerings to dead ancestors) to the ancestors.

!7° Further, pragmatic reasons required a recognition of the enormous power of female sexuality which was a 'fact of life' and it was prudish not to recognise it and make allowances for it. While the Bangabasi, the Bengali language newspaper with the highest circulation, painted a lurid picture of females scurrying from house to house begging males to gratify their lust if the Bill was passed,!'"

R.C. Mitter's concern was focused on the need for sympathy towards the young boy who lived alone with his child wife.'7® A number of eminent respondents to Malabari's enquiries had drawn attention to the particular needs of young men; their healthy development required normal sexual gratification, lack of which would lead to frustration and loss of concentration for those pursuing their studies with earnestness. Healthy male bodies and minds thus required early marriage; therefore girl wives were a necessity. The headmaster of the Anglo-Vernacular School in Raja

Deulgaon summed up this viewpoint thus:

It will be admitted that native boys feel a desire for sensual enjoyment at the age of 17. When a boy exceeds this age without means of enjoying carnal pleasures he is drawn to practise unnatural ways of satisfying his desire for sexual congress. The means adopted by the boys are most detrimental to their health.'"

A tehsildar echoed the same sentiment when he argued for early consummation. Consummation according to him took place 'not a day too early'. 'It tends to make the husband more steady, more tractable and even more studying [studious] than he would be without it, !8° he concluded. On the messy question of rape within marriage, which the reformers were struggling to deal with, the

184 REWRITING HISTORY

opponents of the Bill had no dilemma at all. They rejected outright the idea that there could be rape within marriage. Rape was not a physical matter but a matter of honour and how could the husband's actions cause dishonour to a wife? It was loss of honour rather than physical pain or psychic damage which was considered to be the main aspect of rape. Thus it was impossible to rape one's own, even immature, wife since she could never lose her reputation, said the Samachar.'8! There was of course the sticky problem of physical injuries, even death. This too was rationalised as a negligible price to pay, if necessary, in order to protect the sacred character of Hindu marriage.'*?

It should be evident from the preceding discussion that not everyone shared the normal revulsion experienced by a section of men regarding the vulnerability of girl-wives subjected to the brutality of men. While it is indisputable that the Age of Consent legislation was ill-conceived and messy!83 in its application, what was at the centre of the controversy was the problem created by the non-consensual Hindu marriage which hung like a millstone round the necks of men and women of the late nineteenth century. Into this institution a restricted and statutorily defined notion of 'consent' was now being introduced. But the question we need to ask is: where exactly was this consent being located? Did the wife, either in the past or now under the British dispensation, have the right to refuse the husband access to her once she was married? The arguments of Dadaji, Hindu men who closed ranks in support of Dadaji, and even the British courts, held that the wife had no such right. Further, the arguments that came up in the Rakhmabai case and in the debate on the Age of Consent Bill show that neither the state nor the community (whether resisting or approving the Bill) actually considered 'consent' as residing in the woman's decision to permit her husband sexual access to herself.

Instead, as the legislation on the Age of Consent makes evident, it was the state that consented to provide the husband with sexual access to his wife at a particular moment regardless of when the marriage was solemnised. This notion had no precedent in the past. The public hysteria, the argument of religion and culture in danger, or even the position that Tilak and other militants took that an alien government had no right to legislate on such matters had deeper implications than appear on the surface.

I have argued earlier here and elsewhere that female sexuality was

Law, Colonial State and Gender

closely guarded and subject to stringent control in the pre-colonial period. Brahmanical texts are explicit about the fact that female sexuality (or even male sexuality, but with less emphasis) is never a matter of choice or an individual's will but rather is subject to the collectivity of the caste or kin group. Lapses were swiftly and sternly punished. The state was closely concerned with female sexuality, which was monitored through the community.!84 However, both in the Brahmanical texts and during the Peshiwai the state aided and supported the authority of the husband over his wife and reiterated, the community's control over female sexuality through the caste panchayats. At no point had the state assumed authority over the wife directly, superseding the authority of the husband and his kinsfolk. Through this legislation the colonial state had for the first time assumed authority, defined as protection, over the child wife, superceding the authority and the rights of the husband. The fundamental point about the Tilakian resistance to the Bill was as much a statement that female sexuality must remain a subject of caste and community control (but not of course of the womenconcerned) which the state, especially the alien state, must keep away from and not erode.

The colonial state's positions on 'consent' in the Rakhmabai case and in the Age of Consent Bill, though apparently dissimilar, may also be reconciled. In the Rakhmabai case it had insisted on the performance of duty: its understanding of Hindu law was that a wife could not withhold consent to the husband's access to her body; it had thus interlocked with an indigenous formation of patriarchy which certainly upheld the marital obligations of the wife to her husband and did not recognise the notion of consent. Now the colonial state had shifted ground somewhat to come into conflict' with traditional patriarchal norms but it did not concede to the wife her right to actually express consent; upholding at all times the superior morality of the colonial authority, the colonial . state had, even so, merely regulated a man's right to his wife and thus protected its 'weakest' subject, the child wife. The shift was not inconsistent within its larger agenda of upholding patriarchal

_ institutions and keeping track of problems arising from unregulated female sexuality. (The Bill while being introduced had stated twin objectives — to prevent early prostitution and premature intercourse for the great body of female children.)!*°

It was the reformers who were caught on the horns of a dilemma.

186 REWRITING HISTORY

They veered between various positions in their public and personal stances, but they too were not able to locate consent in the wife:

R.G. Bhandarkar had defended 'infant' marriage!*®° (especially in the face of judicial interference) and Telang had argued in 1887 while defending Rakhmabai that no change in the marriage law was required. While he did not want Rakhmabai imprisoned he objected to the Rakhmabai Defence Committee's position that marriage should not be enforced since the parties were children when it was solemnised. He wanted the marriage to be recognised and binding but held that it should be enforced only in certain ways and that should not include imprisonment.'®" Hielane performed the marriages of his daughters at the ages of 9 and 11/8

(even after the passing of the Age of Consent Act which he had argued for) and Ranade had himself married an 11-year-old girl.

All three 'reformers' were merely envisaging a separation of the wife from the husband for a period of time before actual cohabitation began. Only one response to Malabari's queries on infant marriages came close to recognising women's agency, and proposed that the wife could give her actual consent to the consummation of the marriage when she reached maturity. Bapat, who was a tehsildar, came up also with an 'indigenous' solution in which the wife could indicate her consent to a neutral body — the panchas of the village.'8? Significantly, it was Bapat who had also recommended early consummation in order to provide stability to young men.!"°

Vv It has been implied that in the pre-colonial period there were a multiplicity of caste laws so that technically there was nothing like a 'fixed' Hindu law. However, it has been my endeavour to suggest that even the discrete caste laws functioned within an overarching conceptualisation, binding them together quite firmly and 'rationally', with the Peshwai acting as the highest authority to enforce such a structure. But social processes in the nineteenth century led to the weakening, or the disuse, of the caste panchayats through other alternatives provided by the British Indian administration, especially in urban areas. This can be said to have brought women to a certain extent into the ambit of the colonial state and its laws. This is evident in the Rakhmabai case; from other cases of the restitution of conjugality we can see that this was a

Law, Colonial State and Gender

classic instance where women's relationship to husbands and property brought them directly in a8 subjects of the colonial law.

Significantly, the emerging structure gave mén a choice regarding which legal system to use to make women 'governable'. The state too provided dual forums by which patriarchal power could be reinforced even while it was engaged in establishing that its authority was superior to that of its male subjects.

Women were also being brought under the colonial state through criminal cases instituted against them for offences arising from 'illegal' sexual activity; widows in particular found that the colonial state was able to mount as effective a surveillance of them and be as repressive as the Peshwai, displaying similar patriarchal anxieties and upholding the community's as well as its own norms.

The Brahmana widow Vijayalakshmi found that an employee of the state first discovered her pregnant condition, kept watch on her and then followed it up by tracing the crime of infanticide back to her.!?! In Bengal, Guha has documented the case of the sister and mother of the widow Chandra being charged with complicity in her death by arranging an abortion for her.!?? They were simultaneously acting against the 'crime' of abortion which the widow had taken recourse to and bringing those women who were attempting to help the widow into the legal net by charging them with complicity. The colonial state was effectively able to pursue these cases because the community's norms coincided with theirs: both were interested in bringing defaulting women to book.

But the colonial state found that it was less effective in dealing with 'insider' crimes, when men within the family dealt with sexual lapses on their own, or when they were themselves involved as offenders.!9? Thus, the state found itself unable to penetrate into the family, even to 'protect?' women, when the community's surveillance was not available to aid it. When the norms of the community conflicted with those of the colonial state we can discern a clash of patriarchal ideologies; at other times the community, family, and state all collaborated in monitoring female sexuality. Vijayalakshmi, the widow charged with infanticide, for example, found only one woman, Tarabai Shinde, to defend her publicly.!94

We find, however, that women were also utilising the courts and the new laws to claim their rights. A young widow fought a lone battle to claim maintenance from her in-laws and_ lived

REWRITING HISTORY

independently without having to succumb to their power when she won the suit.!9° Many otherewidows went to court in matters of adoption!"® and rights to property in their in-laws' estates or even for rights in the parents' property,'"" utilising a period of moderate liberalisation after the mid-1870s.!?8 But the laws remained patriarchal and the structural constraints could not be surmounted easily. The famous Ranade for example would not rule a share for a widowed daughter in her father's estate in a case that could have paralleled his own. Fathers and brothers had a moral responsibility to their married daughters/sisters but such women did not have a legally enforceable right under 'Hindu' law.!??

Another significant point about the law in relation to gender is that by the second half of the nineteenth century cultural nationalism was unifying 'Hindus' and creating trends whereby all

'Hindus' would have one set of laws. This was particularly true of areas where cultural nationalism was an expression of a Brahmanical worldview. Thus, for example, in the Bombay Presidency, where

Brahmanical patriarchy was strong, women were being unified under a 'Hindu' law whether on a widow's right to her deceased husband's property following remarriage or on conjugality where the law did not recognise customary law. Further, the 'nationalists' had one notion of womanhood for all Hindu women and were willing to import Hindu practices from other regions in constructing the notion of a sacred marriage. Not only was the discreteness of caste being steam-rollered out, but regional differences were also being collapsed in the interests of the construction of a 'Hindu wife' and a Hindu marriage, making for a more stringent model of wifehood applicable to all who aspired for a 'Hindu' identity.

NOTES AND REFERENCES

1. The term Hindu law most often stood for textual law based on the Shastras; in the context of property, marriage and adoption it was based particularly on the Dayabhaga and Mitakshara schools of law.

Whether it included customary law or not remained ambiguous as the discussion will amplify.

A contemporary nineteenth century pamphlet on the remarriage of widows published by the Pathare

Prabhus in 1869 regards the 'sacred lore' of the 'nation' as the source

Law, Colonial State and Gender

of 'national' belief. This pamphlet treats textual law as having 'national' applicability (Marriage of Hindu Widows Advocated by the Pathare Reform Association, Bombay, Indu Prakash Press, 1869,

Appendix L, being Extracts from Newspapers).

Lucy Carroll, 'Law, Custom and Statutory Social Reform: The Hindu Widows Remarriage Act of 1856' in J. Krishnamurti (ed.),

Women in Colonial India: Essays on Survival, Work and the State, Delhi, Oxford University Press, 1989, pp. 1-26.

Ibid., p. 5.

Sripati Roy, Customs and Customary Law in British India, Delhi, Mittal Publishers, 1986 (Reprint, first published 1910) pp. 15-16.

Lucy Carroll, 'Law, Custom and Statutory Social Reform', p. 4.

Sripati Roy, Customs and Customary Law, p. 298.

Matungini Gupta v. Ram Rutton Roy, Indian Law Report (hereafter ILR) 19, Calcutta 289, p. 291.

Ibid., p. 292. Also Murugayi v. Vikramkali 1877 cited in Roy, Customs and Customary Law, p. 116.

Bhola Umar v. Kausilla, ILR 55, Allahabad 24, pp. 36-38.

In other cases relating to marriage the courts were recognising that lower-caste customs were different. However, some customs among these castes were unacceptable to the courts and it was argued by some judges that when customary law, as upheld by the panchayat, was in conflict with the court law, i.e., the British Indian law, the latter overruled the former.

Others continued to insist that lower-caste customs were very different and Brahmanical law could not operate among these castes. By implication British Indian law was to be flexibly applied to them (Roy, Customs and Customary

Law, pp. 306-07).

Lucy Carroll, 'Law, Custom and Statutory Social Reform', pp.

Liz 18-22.

William C. McCormack, 'Caste and the British Administration of iz.

Hindu Law', Journal of Asian and African Studies, Vol. 1, Part I, 1966, pp. 27-34, p. 32.

Bhola Umar v. Kausilla, ILR 55, Allahabad 24, p. 41.

Moniram Kolita v. Keri Kolitani, ILR 5, Calcutta, 776 (Privy 13:

14.

Council).

Bhola Umar v. Kausilla, ILR 55, Allahabad 24, p. 42.

15.

Ibid., pp: 46-48.

Prem Chowdhry, 'Customs in a Peasant Economy: Women in Colonial Haryana', in Kumkum Sangari and Sudesh Vaid (ed.),

Recasting Women: Essays in Colonial History, Delhi, Kali for Women, 16.

V7.

1989, pp. 302-36.

REWRITING HISTORY

. J.H. Nelson, A Prospectus for the Scientific Study of the Hindu Law, London, 1881, p. 149.

. Dayaram Gidumal, The Status of Women in India or a Hand-book for Hindu Social Reformers, Bombay, Fort Publishers, 1889, p. Ixv.

. Parekh Ranochor v. Bai Vakhat, ILR 11, Bombay 119.

Vithu v. Govinda, ILR 22, Bombay 321.

. Ibid., pp. 326-27.

5 Ibid, D. dels = 2 bIg...p: Soh:

Carroll, 'Law, Custom and Statutory Social Reform', p.- 12.

. Bhola Umar v. Kausilla, ILR 55, Allahabad 24, p. 38.

Ibid., pp. 56-57.

The Hindu Widows Remarriage Act (Act XV of 1856), Preamble, cited in Carroll, 'Law, Custom and Statutory Social Reform', p. 3.

Vithu v. Govinda, ILR 22, Bombay 321, p. 331.

. Carroll, 'Law, Custom and Statutory Social Reform', p. 331.

. Dayaram Gidumal, The Status of Women in India, pp. \x-lxv.

. Vide Bombay Regulation IV of 1827, Section 26.

Collector of Madura v. Moottoo Ramalinga Sathupathy 1868, cited in Sripati Roy, Customs and Customary Law, p. 23.

. Narada, 1.40, cited in Roy, Customs and Customary Law, p. 17.

. Reg. v. Sambhu Raghu, ILR, Bombay 347 (1876), cited in Roy, Customs and Customary Law, pp. 107-8.

. Roy, Customs and Customary Law, p. 109.

Ibid., p.111. Caste usages were considered upholdable even when they were 'tyrannical', particularly after the British Government legislated (Act XXT of 1850) that an outcasted individual did not forfeit his property.

Ibid., p. 24.

. Ibid, p. 108.

. Musst. Dureeba v. Juggernath (1855), cited in Roy, Customs and Customary Law, pp. 116-17.

. Roy, Customs and Customary Law, p. 291. lvidg Dade.

Ibid., p. 306.

. Dayaram Gidumal, Status of Women, p. lxxx.

Sitaram alias Keera Heerah v. Musst. Aharee Heerahee (1873) cited in Roy, Customs and Customary Law, p. 312.

. Dadaji v. Rakhmabai, Suit no. 139 of 1884, Indian Law Reports, Bombay Series, Vol. IX, pp. 529-35.

Letter from Max Muller to B.M. Malabari, 27 October 1887, Life and Letters of Rt. Hon. Friedrich Max Muller, Edited by his wife,

London, Longman's Green, 1902, Vol. II, pp. 217-18.

Law, Colonial State and Gender

This summary is based on the account of the case contained in Indian Law Reports, Bombay Series, Vol. IX, pp529-35 and Vol.

X, pp. 301-13, and Rakhmabai's biography in Marathi (Mohini Varde, Rakhmabai Ek Aart, Bombay, Popular Prakashan, 1982).

PIER XE po 529:

48.

Ibid.

Ibid.

« Ibid p53K . Ibid.

. Ibid., p. 532.

Ibid., p. 533.

. lbid., pp. 533-34.

Ibid., p. 535.

Ibid.

. Indian Law Reports, Bombay Series, Vol. X, pp. 301-13.

Ibid., p. 304.

Ibid., p. 306.

. Ibid., p. 307.

Ibid.

Ibid.

. Telang was a consistent champion of caste authority and its validity even in the late nineteenth century; See Dayaram Gidumal, Status of Women, p. xxix.

Telang's argument here is seeking to reiterate Section 26 of The Bombay Regulation IV, 1827 where the caste council was left with the power to deal with certain matters (described as 'social duties').

The King, in this case the civil courts, above the council merely had the 'higher' authority of levying fines. Real power to determine the rights of husbands and wives was to remain in the hands of the caste council.

ILR, X, p. 308.

Ibid., p. 310.

Ibid., pp. 310-11.

Ibid., p. 311.

Tbid., p. 312.

67.

68.

69.

70. vale ex Ibid.

Tbid., p. 313.

Way 74.

Ibid.

Times of India, 5 March 1887.

As a nationalist and a cautious social reformer (see discussion on pp. 145 of this work), Telang was averse to bringing English public opinion into the case in order to get relief for Rakhmabai. His distinctive position was consistent with his arguments during the 75.

76:

REWRITING HISTORY

case where he had demanded a decision by the caste council. For many reasons he also did not agree with the tactics and arguments of the Rakhmabai Defence Committee (Times of India, 26 May

1887).

. Mohini Varde, Rakhmabai, pp. 110-16.

. Jéid.5 pp. 210=12.

TLR AG on 530.

Gazetteer of Bombay City and Island, pp. 236-39.

. O'Hanlon, Caste, pp. 43, 45.

Mahratta, 3 April 1887. The editorial also suggested that such cases arising from the contradictions of a transitional period were best settled by a compromise.

. Dobbin, Urban Leadership, pp. 225-27.

. Varde, Rakhmabai, p. 75.

Steele, The Hindu Castes, p. 361.

R.E. Enthoven, Tribes and Castes of Bombay, Bombay, Government Central Press, 1922, Vol. III, pp. 356-58.

. Ibid, pp. 159-68.

Ibid., pp. 249-51.

. Varde, Rakhmabai, pp. 3ff.

. Selection from 'Exposition of Facts', Mahratta, 24 April 1887.

. Varde, Rakhmabai, p. 220.

See Enthoven, Tribes and Castes, pp. 159-68; 249-51; 356-58; Steele, Hindu Castes, pp. 361-65.

Steele, Hindu Castes, pp. 422-24.

. See pp. 129 of this Chapter.

. Selection from 'Exposition of Facts', Mahratta, 11 May 1887.

. Varde, Rakhmabai, p. 80; ILR IX p. 533.

. The biography consistently invokes Jayantibai's identity as a 'Hindu' widow, then associates her with the reformist strand among Hindus.

Following her marriage to Sakharam, Jayantibai is said to have performed the roles of grihini, sakhi, and a priyashishya-cum-patni

(Varde, Rakhmabai, pp. 20-22).

Ibid., pp. 6-28.

Ibid., p. 22; Steele, Hindu Castes, p. 348. According to Steele's information a girl who arrived at puberty before she was married was excluded from her caste and had to remain unmarried.

100.

Rakhmabai, The New Review, no. 16, September 1890, pp. 263-69, p. 264 (I am grateful to Antoinette Burton for this reference);

Varde, Rakhmabai, p. 22.

Steele, Hindu Castes, p. 358. Steele states that it was customary to give a daughter in marriage on condition of service to the father on the part of a ghar jawai, either for a fixed or for an indefinite period.

101.

Law, Colonial State and Gender

This is suggested in the 'Exposition of Facts' published by Dadaji on 14 April 1887 where he states that Jayantibai wanted to 'adopt' some good boy into the family to perform the funeral rites (Varde,

Rakhmabai, p. 78; Mahratta, 24 April 1887).

Sudhir Chandra, "The Problem of Social Reform in Modern India:

The study of a case' in S.C. Malik (ed.), Dissent, Protest and Reform in Indian Civilisation, Simla, Indian Institute of Advanced Study,

102.

103.

1977, pp. 250-62, p. 251.

D.D. Karve, New Brahmans, p. 138; Pathare Prabhus, Brahmanas, Sonars and Shenvis are the new reformist elite according to the evidence provided by a Pathare Prabhu pamphlet Marriage of Hindu

104.

Widows, 1869, Appendix L.

The issue of difference in wealth, socialisation and education between Dadaji and Rakhmabai was a running theme both in the court case as well as in the larger controversy conducted through the press and the publication of pamphlets. A section of the caste which had become wealthy and educated was distinguished from the rest in their 'lifestyle, clothing and thinking'. Consequently, the 105. rest of the caste, poorer and less educated, was overwhelmed and felt dominated by their caste-fellows. Dadaji's account of differences between him and Rakhmabai's family makes allusions to the rich

'insulting the poor', and of Rakhmabai's shallowness in not being able to love and share a life with a poor man. He appealed to the public in his pamphlet to see his side of the case as a 'wronged' husband, being married and yet having no wife. At the same time

Dadaji also pointed out that though Rakhmabai was married she was yet a virgin because of the 'machinations' of a selfish mother.

He. defended himself in the pamphlet about his supposedly not being educated, and claimed that he was as educated as Rakhmabai.

He represented himself as a victim of calumny especially by the press, which in trying to portray Rakhmabai as a heroine had calculatedly portrayed him as a 'fool'. (Varde, Rakhmabai, pp.

76-78; Mahratta, 24 April 1887).

Mahratta, 17 April 1887.

Bengalee, 19 March 1887.

The caste-fellows of Dadaji and Rakhmabai were probably both embarrassed and divided on the dispute between the two parties. In his allegation against Rakhmabai in the 'Exposition of Facts' he charged her with shaming him within the caste. She in turn charged him with bringing dishonour upon her by dragging her to court.

This, said Rakhmabai, was unprecedented for any woman in her caste (Varde, Rakhmabai, p. 82).

Mahratta, April 24, 1887; Varde, Rakhmabai, pp. 75-81.

106.

107.

108.

109.

REWRITING HISTORY

ILR, X, pp. 312.

Native Opinion, 27 September 1885.

110.

Lids 112.

Dayaram Gidumal, Status of Women, pp. Ix-lxv. In far-off Calcutta the 'low'-caste origins of Rakhmabai evoked contradictory responses.

While one reaction was to dismiss its importance since she was a 'low-caste' woman (Amiya Sen, 'Age of Consent Bill Agitation in Bengal', Indian Historical Review, Vol. VII, Nos. 1 and 2, July

1980-January 1981, pp. 160-84, p. 166), another reaction was to uphold Brahmanical norms as applicable to everyone; All other castes were expected to conduct themselves on the model of the Brahmanas. One opinion was that the Government should therefore settle the uncertain marriage customs of the people (Tanika Sarkar,

'Rhetoric Against Age of Consent: Resisting Colonial Reason and Death of a Child Wife', Economic and Political Weekly, Vol. 28, No.

36, September 4, pp. 1869-78, p. 1873).

Native Opinion, 27 September 1885. The information about Jayantibai's disentitlement to the property 'inherited' from Janardhan following her remarriage is alluded to indirectly by MEE Dadaji in his 'Exposition'. He states that on Jayantibai's remarriage

Rakhmabai got the property of her father (Varde, Rakhmabai, p. iO).

Indian Spectator, 20 March 1887.

Indian Spectator, 1 November 1885, and letter to Bombay Gazette, cited in Indian Spectator, 27 March 1887.

P.V. Kane, History of Dharmashastra, p. 571.

114.

115.

116.

Lie 118.

Lig, 120.

Times of India, 22 September 1885.

Native Opinion, 27 September 1885.

IB Me CER

Indian Spectator, 18 March 1887.

Sir William Muir, Lieutenant-Governor of Bengal, had suggested that the 'law might stipulate that the "'betrothals" made in tender years by third parties should not be enforced as contracts demanding specific performance unless there was a ratification of the betrothal by the principal contracting parties after they had arrived at maturer years' (Dayaram Gidumal, Status of Women, p. 96).

Mahratta, 10 April 1887.

We 123, 124.

WAY

OMA 128.

Ibid., 24 April 1887.

Ibid. 10 April 1887.

Ibid., 24 April 1887.

Ibid., 10 April 1887.

Ibid.

Karnataka Prakashika, 4 April 1887, cited in Sudhir Chandra, 'Problem of Social Reform', p. 255 n. 28.

Law, Colonial State and Gender

129.

130.

131.

Mahratta, 10 April 1887.

Din Bandhu, 27 March 1887. iad Friend, 26 March 1887, quoted in Indian Spectator, 17 April

887.

Mahratta, 17 April 1887.

Liberal and Din Bandhu, quoted in Indian Spectator, 17 April 1887.

Ibid.

The ambiguity about what exactly 'Hindu law', constantly being invoked by all parties to the dispute, incorporated within itself made the reformist position extremely difficult as Sakharam Arjun pointed out. Responding to Malabari's attempt to seek opinion on infant marriages Sakharam Arjun had written, "The Government have complicated matters by not yet making carefully a proper distinction between Hindu law, religion and custom. If Hindu law is to be disassociated from Hindu religion, as it properly should be, a great many difficulties which now stifle the growth of reform might have been easily removed.' (Dayaram Gidumal, Status of Women, p. 96).

132. ito 134.

Civil and Military Gazette, 19, 23, 25 April 1887, cited in Sudhir Chandra, "Whose Laws: Notes on a Legitimising Myth of a Colonial

Indian State', Studies in History, Vol. 8, No. 2, New Series, 1992, — pp. 189-211, p. 198.

Hindu Patriot, 4 April 1887.

It remains unclear why exactly the British Indian courts decided on imprisonment rather than attachment of property or alimony, unless they considered these actions reserved for defaulting husbands. For a woman who refused conjugal rights to her husband the only remedy was imprisonment. Following Rakhmabai's stand the imprisonment clause was dropped but the decree continued to be enforceable by attachment and sale of property in case a wife owned any. Traditionally a wife could refuse to join her husband if he had a loathsome disease or brought a concubine into the house, or was guilty of cruelty (P.V. Kane, History of Dharmashastras, p. 570).

Hindu Patriot, 4 April 1887. A few persons especially in Bengal did actually endorse imprisonment. Maharaja Jatindra Mohan Tagore was strongly of the view that a husband was a wife's legal guardian.

136. be ie 138.

139.

If she resisted going to him she must be imprisoned. This view was echoed by Raja Peary Mohan Mukherjee (Dagmar Engels, The Changing Role of Women in Bengal; c. 1890-c. 1930 with Special

Reference to British and Bengali Discourse on Gender, unpublished Ph.D. thesis, School of Oriental and African Studies, University of London, 1987, p. 295).

Mabratta, 3 April 1887.

141. Mahratta, 24 April 1887.

140.

REWRITING HISTORY

Mahratta, 3 April 1887.

Indian Spectator, 6, 20 and 27 March, 1887; Sudhir Chandra, 'Whose Laws', pp. 202-03.

For a recognition of the interlocking of patriarchies and a pungent critique of the manner in which men made compacts with each other to rule over women see Pandita Ramabai Saraswati, The High

142.

143.

144.

Caste Hindu Woman, Philadelphia, published by Ramabai Dongre Medhavi, 1888, pp. 65-68.

The Times, 28 February 1891. Reporting a meeting in Calcutta on 25 February, the correspondent described a huge congregation of persons. Among the slogans raised was one that said 'Mercy oh

Queen, our religion is threatened.' Also see V.T. Naik (ed.), Select 145.

Writings and Speeches of K.T. Telang, Bombay, Gaud Saraswat Mitra Mandal, 1916, Vol. II, p. 453.

Reproduced in Government of India, Home Department, Selections from Records, No. CCXXIII, No. 3, Calcutta, 1886.

146.

Heimsath, /ndian Nationalism, pp. 155-58.

147.

148.

149.

150.

Ibid., p. 158.

The Times, 7 January, 1891.

Cited by Manmohan Ghose, Appendix V, 6 February 1891, Jndia Legislative Proceedings No. 1-73, Act X of 1891 and Connected

Papers, No. 38. See also Mrinalini Sinha, 'Colonial Politics and the Ideal of Masculinity: The Example of the Age of Consent Act of 1891 in Bengal', in Proceedings of the Third National Conference on Women's Studies, Indian Association of Women's Studies, Chandigarh, 1986, Vol. II, Sub-theme 6, p. 7.

Considerable attention has been focused on the Age of Consent controversy, beginning with Charles H. Heimsath's "The Origin and Enactment of the Indian Age of Consent Bill, 1891', Journal of Asian Studies, Vol. 1, No. 4, August 1962, pp. 491-504; Mrinalini lols Sinha (see note 150 above); Dagmar Engels, "The Age of Consent

Act: Colonial Ideology in Bengal' South Asia Research Vol. 3, No.

2, November 1983, pp.107—34; Amiya Sen, 'Hindu Revivalism in Action — The Age of Consent Bill Agitation in Bengal', Indian

Historical Review, Vol. VII, Nos. 1-2, July 1980—January 1981, pp.

160-84; and Tanika Sarkar, 'Rhetoric Against Age of Consent:

Resisting Colonial Reason and Death of a Child Wife', Economic and Political Weekly, Vol. 28, No. 36, September 4, 1993, pp.

1869-78. My own analysis of the issue is focused around the relationship between law, gender, the colonial state and the upper castes with special reference to Maharashtra.

For details of Phulmoni's case, see Sarkar, 'Rhetoric Against Age of Consent', pp. 1873-74.

152.

Law, Colonial State and Gender

A. Scoble's speech, Speeches on the Age of Consent Bill, Calcutta 1891, cited in Sen, "The Age of Consent Bill Agitation', p. 171.

The incident gave rise to the term 'Harmaitism' which was bandied about in the press and stood for the brutal sexual conduct of men

153.

154.

(The Times, 29 January 1891).

Dayaram Gidumal, "The Hindu Woman: Our Sins Against Her', C.Y. Chintamani (ed.), Indian Social Reform, p. 104.

R.G.

Bhandarkar, 'Presidential Address to the Ninth Social Conference', 1895, C.Y. Chintamani, Indian Social Reform, p. 180.

Tilak however did privately defend Harmaiti in an insensitive and typically male letter he wrote. He was of the view that Harmaiti could not be held responsible for the death of his child wife. He was after all merely exercising his marital rights (Stanley Wolpert,

155.

156. bye Tilak and Gokhale: Revolution and Reform in the Making of Modern India, Berkeley, University of California, 1962, pp. 52-54).

The Times, 12 January 1891.

Cashman, The Myth, pp. 56-58.

V.T. Naik, Speeches and Writings, p. 450.

Ibid., pp. 456-57. Telang seems to have implicitly been arguing for the old structure of Hindu law as an aggregate of customs which he may have believed had provided certain spaces which could be utilised to advantage by those wishing to. In the Rakhmabai case he privileged caste panchayats over 'English' law and in the Age of Consent controversy he strongly resisted the importation of Bengali customary practices into Maharashtra.

V.T. Naik, Speeches and Writings, pp. 460-61.

Tbid., p. 467.

Ibid., pp. 461-64.

Ibid., pp. 468-71.

Ibid., pp. 471-72.

Tbid., p. 454.

Letter of Dr Mahendra Lal Sircar, LLD, CIE, to the Chief Secretary to the Government of Bengal on the Age of Consent Bill dated 4

March 1891, reproduced in C.Y. Chintamani, Indian Social Reform, pp. 248-54; and Mahendra Lal Sircar on the 'Earliest Marriage

Age', Calcutta Journal of Medicine, July 1871, reprinted in Chintamani, Indian Social Reform, pp. 255-60.

Ibid., pp. 248-52.

Ibid., p. 253.

Ibid.

Tbid., p. 254.

Ibid.

158.

159.

160.

161.

162.

163.

164.

165.

166.

167.

168.

169.

170. wae 172:

174.

Dagmar Engels, "The Changing Role of Women', p. 273.

REWRITING HISTORY

Dainik O Samachar Chandrika, 15 and 17 January 1891, cited in Sen, 'The Age of Consent Bill', p. 171.

175.

Ibid., 11 January 1891.

Bangabasi, 7 March 1891, cited in Engels, The Changing Role of 176.

Life Women, p. 289.

Government of India Legislative Proceedings, April 1891, Appendix A 20, Report of the Select Committee.

Vishnu Prabhakar Paraspe, Headmaster, Anglo-Vernacular School, 178.

179.

Raja Deulgaon, Submission to Malabari, reproduced in Dayaram Gidumal, Status of Women, p. 43.

Waman Narayan Bapat, Tehsildar, Chandur Taluk, Submission to Malabari, reproduced in Dayaram Gidumal, Status of Women, p. 47.

Samachar, 18 February 1891, cited in Engels, The Changing Role of 180.

PSitt Women, p. 289.

Tanika Sarkar, "Rhetoric Against Age of Consent', p. 1877.

A central question that ran through the negative reactions to the 132!

183.

Bill was the difficulty of applying it. Who would prosecute? There was great anxiety about 'malicious' prosecutions and therefore it was argued that the right be restricted to the girl, her parents or her guardian (who would not make malicious prosecutions) especially when the husband was being charged (The Times, 16 February

| 1891). As R.C. Mitter pointed out, a husband could not be convicted unless his wife produced incriminating evidence which she was unlikely to provide. If she spoke the truth her position would become like that of a widow; if she did not she committed perjury. Either way the amendment was only going to punish the victim of the offence more severely than the offender himself. Sir

R.C. argued that the legislation was badly conceived (R.C. Mitter's Minute of Dissent, 5 March 1891, reproduced in the Hindu Patriot,

9 March 1891).

Uma Chakravarti, "Conceptualising Brahmanical Patriarchy in Early India: Gender, Caste, Class and the State', Economic and Political

184.

Weekly, Vol. 28, No. 14, 1993, pp. 579-85, pp. 584-85.

The Times, 12 January 1891.

Dayaram Gidumal, Status of Women, p. 21.

Mahratta, 29 May 1887.

S. Natarajan, A Century of Social Reform, p. 88.

Dayaram Gidumal, Status of Women, p. 119.

Ibid., p. 47.

Indian Spectator, 27 May 1881.

185.

186.

187.

188.

189.

190.

191; 192.

Ranajit Guha, 'Chandra's Death', Ranajit Guha (ed.), Subaltern Studies V: Writings on South Asian History and Society, Delhi, Oxford

University Press, 1987, pp. 135-64.

Law, Colonial State and Gender

193.

Lancelot Wilkinson MD, 'Introduction' to An Essay on the Second Marriages of Widows, By a Learned Brahmin of Nagpore, pp. 9-16.

194.

Rosalind O'Hanlon, 'Issues of Widowhood in Colonial Western India', Douglas Haynes and Gyan Prakash (ed.), Contesting Power:

Resistance and Everyday Social Relations in South Asia, Delhi, Oxford University Press, 1991, p. 64.

D.D. Karve, The New Brahmans, pp. 227-29.

1).

196.

17.

Gadappa v. Girimallappa, ILR, 19 Bombay 331.

Yamunabai v. Manirbai, ILR, 23 Bombay 608; Bai Mangal v. Bai Rukhmini, ILR, 23 Bombay 291.

Richard Tucker, Ranade, pp. 293-98.

Bai Mangal v. Bai Rukhmini, ILR, 23 Bombay 291; Tucker, Ranade, pp. 294-95.

198. rao:

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