Case CXXIV: In 1890 in the Calcutta High Court a fully developed Bengali, aged 35, was charged with causing the death as above of his child-wife, a girl aged 11 years and 3 1/2 months…The injury inflicted was a rent in the vaginal wall on the right side of the os uteri, measuring 13/4 inches in length and 1 inch in breadth. Copious hæmmorrhage took place immediately after intercourse. The girl died of exhaustion 13 1/2 hours after the act. The vagina was found to be distended with a clot measuring 3 inches in length by 11/2 inches in breadth, and there was a globular hæmatoma in the right broad ligament, measuring 3 inches in diameter … The evidence in this case clearly established the fact that the fatal injury was caused by sexual intercourse of this mature male, with an immature female, his wife. The court held that when a girl is a wife and above the age of consent (which at that time was only ten years), although it is therefore not rape, still the husband has not the absolute right to enjoy the person of his wife without regard to her safety.” — Queen Empress vs Huree Mohan Mythee, Indian Law Reports, 18 Cal.49; J Wilson, July 1890
Was it only a coincidence that I was reading the 135-year-old case of Phulmonee Dossee, the 11-year-old killed due to penetration by her 35-year-old husband, days before the Supreme Court began hearing the petitions asking for criminalisation of marital rape? My mind had been on the RG Kar murder and rape incident in Kolkata and the intense interest in the autopsy report in the case. The bodies of women, as subjects of violence or objects of control, are ever in discussion in South Asia.
In the outstanding book ‘Sex, Law and the Politics of Age’, historian Ishita Pande writes that 11-year-old Dossee’s autopsy report “remains the most scrutinised of such documents in India” and was the singular case that led to the age of consent legislation in 1891 that raised the age of marriage from 10 to 12. Her death was attributed to “injuries inflicted on her wedding night”, Pande writes. Why not rape? Because as the excerpt quoted above states, “the girl is a wife and above the age of consent.”
Juxtapose this with what the Centre submitted in the affidavit articulating its position to the Supreme Court on October 3: “It is submitted that a husband certainly does not have any fundamental right to violate the consent of the wife, however, attracting the crime in the nature ‘rape’ as recognised in India to the institution of marriage can be arguably considered to be excessively harsh and therefore, disproportionate.” The place of marriage in Indian society, the Centre argued, is so special that the vows are inviolable, hence the exception the legislature has made for marital rape should remain. The affidavit was submitted in the case of Hrishikesh Sahoo vs the Union of India. The matter has now been deferred for a month.
What is more clearly articulated now is the notion of the woman’s consent. Although the Act is called the Age of Consent 1891, Pande argues that this was clearly not consent in the way that we understand it today — the ability to make the choice to have sex with another individual — but actually, permission for a man to have sex with a girl aged 12 years and above through the sanctification of marriage. A male license for sex, in other words. Thankfully, there was a caveat, as the quoted excerpt notes — the husband did not have the “absolute right to enjoy the person of his wife without regard to her safety.”
In its affidavit, the Centre states that “in an institution of marriage, there is a continuing expectation, by either of the spouse, to have reasonable sexual access from the other. Though these expectations do not entitle the husband to coerce or force his wife into sex against her or his will.” Two things to note here: It is recognised that the expectation of sex is not the husband’s alone. And second, the wife has a will that matters.
Four years before Dossee’s case in 1885, the doctor Rukhmabai Raut had challenged the validity of a marriage made before a woman can meaningfully consent in the case, Dadaji Bhikaji versus Rukhmabai, historian Sudhir Chandra has written in his superb biography ‘Rukhmabai: The Life and Times of a Child Bride Turned Rebel-Doctor’. Her husband Dadaji Bhikaji moved court, asking that Rukhmabai fulfil her conjugal duties by moving in with him. Technically, this was not a case that concerned marital rape, but it is hard not to see the connection. It would become arguably the first case for the ‘restitution of conjugal rights’ in a Hindu marriage.
The first verdict from the Bombay High Court went in Rukhmabai’s favour, the marriage was not recognised as valid. But this was successfully appealed, and the court ordered her to live with her husband, Dadaji. Rukhmabai declared instead that she would go to jail for six months, the maximum penalty for not obeying the court’s order, rather than live with a husband she had not intelligibly agreed to marry. One may read this broadly as eschewing the company of her husband. But would the thought of cooking and domestic duties make a woman brave jail for six months? The elephant in the room here is the expectation of sexual relations with a man she disliked, a stranger to her fixed by marriage.
Rukhmabai’s decision caused a sensation, throwing the British colonial administration in a flutter and enraging the orthodox Hindu leaders. Bal Gangadhar Tilak’s papers, Kesari and Maharatta, took the lead in defaming her, writes Chandra. “On 29 March 1887, in a burlesque entitled ‘The Final Scene in the Rukhmabai Farce’, it [Kesari] portrayed Rukhmabai as a self-indulgent, licentious woman who would rather go to jail than to her lawfully wedded husband.Was such a woman worth living with?”
Despite her intrepidity, the case resulted in a compromise verdict, with Rukhmabai having to pay Bhikaji Rs 2,000 in return for his not undertaking to execute the decree. Neither was her form of satyagraha, as Chandra calls it, enough to effect a change in the law of child marriage (even if it, arguably, played a role in the 1891 legislation).
The age of consent for marriage now stands at 18. This is not insignificant. But if you look at the matter of non-consensual sex within marriage, here is where we stand: A husband was not charged with rape in 1889, nor will he in 2024.
Chattopadhyay is the author of ‘The Day I Became a Runner’!
Disclaimer
Views expressed above are the author’s own.
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