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Intimate Violence in Colonial Bengal: A Death, a Trial and a Law, 1889–1891

Published online by Cambridge University Press:  02 April 2020

Tanika Sarkar
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Abstract

Much excellent work has been done on the colonial Act X of 1891. Yet, three important contexts have largely gone missing. One is the framework of colonial Personal Laws where the practice of infantile marital cohabitation was embedded till it migrated to criminal laws. Unless we comprehend how the framework constrained judicial decisions and legal interventions, no single law can possibly make full sense. There were highly acrimonious public debates, too, especially in Bengal and Bombay Presidencies, that significantly shaped the Act. Legal reform in the field of gender, I argue, grew more out such debates than from colonial initiatives.

Type
Forum: Regulating Age of Consent in the British Empire
Information
Law and History Review , Volume 38 , Issue 1 , February 2020 , pp. 177 - 200
Copyright
Copyright © the American Society for Legal History, Inc. 2020

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Footnotes

She thanks Laura Lammasniemi and Kanika Sharma for the criticism and editing.

References

1. Act X of 1891, Age of Consent Act: Papers Relating to Acts (Crown Period), Legislative Department, 1819–1939.

2. Even though her birth was registered, there were controversies about her age during the trial of her husband, Hari Maiti, in 1890. Her age was put by various witnesses to be between 10 and 11 and a half years. Bengal Government Judicial Proceedings JC/17 1, Progs 16–102, 1890, West Bengal State Archives, Kolkata [hereafter, Bengal Government Judicial]. Case of Empress v. Hari Maiti, Nos 101-2, File JC/5.

3. See Sarkar, Tanika, “Conjugality and Hindu Nationalism: Resisting Colonial Reason and the Death of a Child-Wife,” in Women and Social Reform in Modern India: A Reader, ed. Sarkar, Sumit and Sarkar, Tanika (Ranikhet: Permanent Black, 2008), 259–81Google Scholar.

4. Among many others, see Heimsath, Charles, Indian Nationalism and Hindu Social Reform (Princeton, NJ: Princeton University Press, 1964)CrossRefGoogle Scholar; Sinha, Mrinalini, Colonial Masculinity: The ‘Manly Englishman’ and the ‘Effeminate Bengali’ (Manchester: Manchester University Press, 1996)Google Scholar; Padma Anagol, “Rebellious Wives and Dysfunctional Marriages: Indian Women's Discourses and Participation in the Debates Over Restitution of Conjugal Rights and the Child Marriage Controversy in the 1880s and 1890s,” in Women and Social Reform in Modern India, 282–312; and Pande, Ishita, “Coming of Age: Law, Sex and Childhood in Late Colonial India,” Gender and History 24 (2012): 205–30CrossRefGoogle Scholar.

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7. Pande has discussed some of them as well, but I have added some new material. My reading of the case is also quite different.

8. This is especially true of Banerji, “Age of Consent and Hegemonic Social Reform.”

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10. Report of the Age of Consent Committee, 1928–1929 (Calcutta: Central Publication Branch, 1929); O'Donnell, C. J., ed., Census of India, Vol. 3, Lower Provinces of Bengal and the Feudatories (Calcutta: Bengal Secreatariat Press, 1891), 3:98Google Scholar. Risley, H. H., Tribes and Castes of Bengal: Ethnographic Glossary, Vol. 1 (Calcutta: Bengal Secretariat Press, 1892), 55Google Scholar. Sarkar, Tanika, “Holy ‘Fire Eaters’: Why Widow Immolation Became an Issue in Colonial Bengal,” Rebels, Wives, Saints: Designing Selves and Nations in Colonial Times (Ranikhet: Permanent Black, 2009), 13–68Google Scholar; and Sarkar, Tanika, “Wicked Widows: Law and Faith in Nineteenth-Century Public Sphere Debates,” in Behind the Veil: Resistance, Women, and the Everyday in Colonial South Asia, ed. Ghosh, Anindita (New York: Palgrave Macmillan, 2008), 83–115CrossRefGoogle Scholar.

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13. Imperial Legislative Council Proceedings, January 9, 1890.

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17. This happened twice in the nineteenth century: with the abolition of widow immolations in 1829 and with the act of 1856 that legalized widow remarriage.

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39. Cited in Nabayug, January 15, 1891: RNP, 1891. Cited in Dainik O Samachar Chandrika, RNP, January 14, 1891.

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41. As deposed by her mother Radhamonee during trial: Empress vs. Hari Maiti, Justice Wilson's charge, to the jury, Nos. 101-2, File 7C 17 5, No. 6292, Calcutta September 8, 1890.

42. Sambad Prabhakar, July 9, 1890, RNP, Bengal, 1890.

43. Although their caste, which in her mother's and grandmother's testimony was transcribed as “oriya kyst,” this is definitely an orthographic mistake. See Bengal Government Judicial, JC/17 I – 5. Using the surname Maiti, they would have belonged to the Kaibarta (Koyet) caste, a fraction of which had already claimed a “purer” cultivating occupation, rather than a more “polluted” fishermen one. Later they would demand to change their caste name to Mahisya. See Anirban Bandyopadhyay, “Negotiating Caste: Discourses and Practices of Self Formation among Mahisyas of Bengal, 1880s–1960s” (PhD diss., Centre for Historical Studies, Jawaharlal Nehru University, 2015).

44. Dr. Mahendralal Sircar, March 4, 1891, in No. 213 File J 7A/2 91.

45. Brigadier-General Dr. R. C. Chandra, Surgeon Major R. L. Dutt, Surgeon Major B. Gupta, K. D. Ghose, Civil Med Officer, Khulna, ibid., March 4, 1891.

46. From W. J. Simmons, Honorary Secretary, Public Health Society of Calcutta, to Chief Secretary, GOB: Nos. 105-6–File J C /17 2, ibid., March 4, 1891.

47. Ibid.

48. Empress vs. Hari Maitee, Nos 101-2, File 7C 17 5 No 6292, Calcutta, 8 September 1892.

49. Ibid.

50. Justice Wilson's Charge, ibid.

51. Ibid.

52. Many vernacular newspapers argued thus. See for example RNP, Bengal, 1889–90.

53. Ibid.

54. Ibid

55. Lansdowne Papers – Home Confidential, Letters, MSS Eur D, 558/17 Vol 1-5 (NAI) 1890 – Correspondence with Persons in England.

56. Scoble to Lansdowne, Lansdowne Papers, No. 20, July 6, 1890.

57. Lansdowne to Scoble, Lansdowne Papers, No. 20, July 5, 1890.

58. The opinions are in GOB – JUDL Dept – June 1893 – File J C/17 1.10 of 1890 – Nos. 104–17 – Raising the Age of Consent under Sec 375 of the Indian Penal Code.

59. No. 131, File JC 7A/2 13: No. 147, File J 7A/2, ibid.

60. Ibid.

61. Nos. 90 and 104, File JC 7 A/C 2 65: No. 124 File J 7A/26: 1891.

62. Sir Alfred Croft, Dir., Pub. Instruction, Being., to Chief Secy, GOB, Cal., February 24, 1891, Nos. 207-8, File JC 7A/2 85, Bengal Government Judicial.

63. No. 169 File J 7A/2 46 and No. 171. File J 7, A/2 4 8: No. 131 J 7A/2 13, ibid., Bengal Government Judicial.

64. Surendranath Bannerjee, in No. 166 File 7A/2 43, ibid., Bengal Government Judicial.

65. Bangabasi, March 21, 1891, RNP, 1891, quoted in Sarkar, “Rhetoric Against Age of Consent,” 1876.

66. Ibid.

67. Bangabasi, March 28, 1891, RNP, 1891, quoted in Sarkar, “Rhetoric Against Age of Consent,” 1876.

68. Ibid., February 12, 1891; No. 22- J/C 7A/2 75, Bengal Government Judicial.

69. The Bengalee, February 28 and March 21, 1891, quoted in Sarkar, “Rhetoric Against Age of Consent,” 1876.

70. No. 134, 7A/2 16 : 142 J 7A/23 : 207-8 J7A/2 85,

71. See Sarkar, Sumit, Modern India (London: Macmillan, London, 1983), 2Google Scholar.

72. Papers Relating to Acts (Crown Period) – Legislative Department, 1819–1939 – Act X of 1891, Age of Consent Act.

73. Sarkar, Modern India, 24–43.

74. Papers Related to Acts (Crown Period), Legislative Department, 1819-1939, Act X of 1891.

75. Sarkar, “Holy ‘Fire Eaters’”; and Sarkar, “Wicked Widows.”

76. See, for example, Sulabh Samachar O Kushadaha, July 22, 1887, RNP, Bengal.

77. Cited in the Hindoo Patriot, December 25, 1890, 353.

78. Dainik O Samachar Chandrika, January 14, 1891, RNP, Bengal, Second Half of January 1891, quoted in Sarkar, “Rhetoric Against Age of Consent,” 1877.

79. Ekadashi is the ritual of fasts without a drop of water once a fortnight for widows. Dainik O Samachar Chandrika, January 11, RNP, Bengal, 1891, quoted in Sarkar, “Rhetoric Against Age of Consent,” 1877.

80. Imperial Legislative Council Proceedings, January–February, 1891. Andrew Scoble moved for leave to introduce a Bill to amend Indian Penal Code and Code of Criminal Procedure, 1882. Under Sec 375 of IPC.

81. Shalini Nair, “Don't Criminalise Marital Rape, May Disturb Instituion of Marriage: Govt,” The Indian Express, Delhi edition, August 30, 2017, 1. Imperial Legislative Council Proceedings, January–February 1891: January 9 Andrew Scoble moved for leave to introduce bill to amend IPC and Code of Criminal Procedure, 1882. Under Sec 375 of IPC.

82. Imperial Legislative Council Proceedings, January–February 1891. See also, Sarkar, Aditya, Trouble at the Mill: Factory Law and the Emegence of the Labour Question in Nineteenth Century Bombay (Delhi: Oxford University Press, 2018), 176–222Google Scholar.

83. The Bengalee, July 25, 1891, quoted in Sarkar, “Rhetoric Against Age of Consent,” 1877.

84. For example, Moghadam, Valentine, “Islamic Feminism and Its Discontents: Towards a Resolution of the Debate,” Signs: Journal of Women in Culture and Society 27 (2002): 1135–71CrossRefGoogle Scholar.