A Prehistory of Rights: The Age of Consent Debate in Colonial Bengal

Author(s): Tanika Sarkar

Source: Feminist Studies, Vol. 26, No. 3, Points of Departure: India and the South Asian
Diaspora (Autumn, 2000), pp. 601-622
Published by: Feminist Studies, Inc.
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 A PREHISTORYOF RIGHTS:
THE AGE OF CONSENTDEBATEIN
COLONIALBENGAL

TANIKASARKAR

"Isaw my daughter lying on the cot, weltering in blood."'This

statement was part of the evidence given in court by Radha-
monee, mother of eleven-year-oldPhulmonee,who died of mari-
tal rape by her husband in 1890. The child's death was widely
reportedand discussed, and, in 1981,Indianreformerspersuaded
the colonial government to raise the minium age of consent for
married girls to twelve. Hindu orthodoxy and culturalnational-
ists opposed the Age of ConsentBill.They argued that it violated
a fundamentallife cycle rite,garbhadhan, which made it obligatory
for a girl to have intercourse with her husband within sixteen
days of her firstperiod.
An extract from a Bengali newspaper that furiously opposed
the Age of Consent Bill noted: "Itis the injunctionof the Hindu
shastrasthat married girls must cohabit with their husbands on
the first appearance of their menses ... and all Hindus must
implicitlyobey the injunction.... And he is not a true Hindu who
does not obey it. ... If one girl in a lakh or even a croremenstru-
ates before the age of twelve, it must be admitted that by raising
the age of consent the rulerwill be interferingwith the religionof
the Hindus .... ."2
Nineteenth-centurycolonial Bengal was not a time when indi-
vidual rights as an inalienable,public, and explicitclaim could be
assertedby a woman as such;a woman was not seen, as yet, to be
in possession of an individuated identity of self-separable from
the family-kin-communitynexus-to which rights could adhere.
Yet,an argumentfor an unabridgeableclaim to her life was slow-
ly emerging as a perceived necessity in the free-ranging, self-
reflexivedebates within the emergentpublic sphere. Her right to
Feminist Studies 26, no. 3 (fall 2000). @ 2000 by Feminist Studies, Inc.
601

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602 Tanika Sarkar

life slowly and gradually emerged over the next few decades
from the struggle to protecther from violent death. This was an
important and contentious beginning, and the long nineteenth
centurywas in a way a long debate over the claims of a woman's
community/family/caste to the right to inflict death on her: in
controversiesabout widow immolation and age of consent, her
physical survival was the issue, and in the widow remarriage
debate,her sexual death was at stake.
In the 1890s,the fledgling notion of a title to life was expressed
in the word "consent":a polyvalent, mid-term word, containing
the seeds of concepts about personhood and right. The age of
consent debates in Bengal in 1891, and the many meanings that
were attachedto the woman's consent, convey the intricaciesof
the transition.
To understand the full range of the possibilities of modern
laws, however, we need to go beyond the state and its legal-judi-
cial apparatus and locate their reception in the public sphere.3
Morethan that,we need to go beyond the debateson law and the
related debate on community and start with a little girl's death
and the multiplerepresentationsof the event.

In 1890, Phulmonee, an eleven-year-old girl, was mangled to

death after horrible bleeding and pain when her twenty-nine-
year-old husband, Hari Maiti, forced intercourseon her. Hindu
law permitted cohabitation with child wives, and the colonial
penal code had laid down that only intercoursewith wives under
ten would be counted as rape. Hari Maiti was thus exempted
from the murder charge as well as from the charge of rape: he
was found guilty of causing death inadvertentlyby a rash and
negligent act.
The death was a crucialevent. It brought togetherand reener-
gized continuingdebateson Hindu domesticnorms and the need
for legislative reform. A huge controversy was sparked in the
press over the issue of child marriageand over the custom that
permittedcohabitationwith the child wife. Child marriage,how-
ever, was not only customarybut was also strongly recommend-
ed by authoritativereligious codes. The colonial state, therefore,
was not ready to intervene here. The only intervention that could
expediently occur was about the age of consent within marriage.

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Tanika Sarkar 603

The Phulmonee episode, widely reported as it was in the press

and in reformistassociations,made it difficult to skirt the possi-
bility of a new age of consent entirely. It added fuel to the
reformist camp and temporarily embarrassed and silenced
revivalists. The government misread the silence to assume that
therewas a favorableclimateof opinion for reformistlegislation.
Culturalnationalists,however, soon gatheredstrengthand re-
taliated with massive protest campaigns. They argued that a
higher age of consentwould violate the garbhadhan ritual,the first
of the ten fundamental life-cycle rites for high-born Hindus.4If
the rule is violated, the womb is polluted, the bride'sfuture sons
will not be able to offer pure ritual offerings to ancestralspirits,
and the sin of feticidewill be visited upon her fatherand her hus-
band. In short,it would be death for the community,for it would
nullify the first principle of Hindu domesticity.An excerpt from
Bangabashi, a newspaperthat played a leading role in the antistate
campaign, provides a fairly typical example of the rhetoricthat
was a powerful challenge to the state. "Theday has at length
arrivedwhen dogs and jackals... will have it all theirway. India
is going to be converted to a most unholy hell, swarming with
hell worms and hell insects..... The Hindu family is ruined.""Or,
"TheEnglishmannow stands before us in his grim and hideous
nakedness. How dreadful the attitude: ... Terrorof the Universe,
Englishmen:do you gnash your teeth, frown with your red eyes,
laugh and yell... keeping time to the clang of bayonets ... and
we ... the twenty croresof Indians shall lose our fear and open
our fortycroresof eyes.'"6
The rhetoricis death defying, a heroic self-assertionagainst a
racialistand tyrannicalcolonialstate.The autonomy of the Hindu
man had been irrevocablycolonized by alien culture and educa-
tion. The Hindu woman'sbody, thus, became a deeply politicized
matter,for it alone could signify past freedomand futureautono-
my. The community could attach this body firmly to itself
through a Shastricand custom-basedregimen of nonconsensual,
indissoluble infant marriagefor the woman. The woman needed
to be strictlyfaithful,even if her husband abandonedher, remar-
ried many times, even if the marriagewas not consummated,and
even if he died.7Such argumentsbore much fruit.They certainly
curbed the effectiveness of the new reformist laws, for widow
remarriage,although legalized since midcentury, continued to

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604 Tanika Sarkar

lack moral sanctionwithin the community.The custom of sati,on

the other hand, which had been legally outlawed, remained
enshrinedwithin communitymemory as a signifierof the Hindu
woman'smoralstrength,the ultimateproof of Hindu greatness.
Derived from Brahmanicalprescriptions, these customs had
become widespread and entrenchedamong most lower castes as
well. By the late nineteenth century,upwardly mobile segments
from most low and even untouchable groups frowned upon
widow remarriageand practiced infant marriage of girls, even
though their own caste custom had been far more flexible in the
past.8Upper-castepatriarchalpracticesconstituted a horizon of
"clean"norms that aspiring lower castes could draw upon in
order to claim a better ritual standing. In practice, a variety of
local, caste-related usages prevailed, but the pull was always
toward the upper-caste norms. An orthodox newspaper made
this clear:"TheBrahmincaste occupies the highest position....
All other castes conduct themselves afterthe fashion of the Brah-
manicalcastes."gWhat the revivalistsargued, therefore,was per-
fectly true. The highly diversified,caste-dividedHindu commu-
nity did derive much of its commonalityfrom Brahmanicalpatri-
archalnorms and practices:it was what upper-castewomen did
thatheld the communitytogetheras one, despite enormousinter-
nal stratification.
Given such a premise, the politics of culturalnationalismwas
bound to oppose any furtherabridgementof the Hindu domestic
disciplineby alien or reformistlegislation,for under colonialism,
the domestic realm was all that they could possibly rule them-
selves. The community leadership-inevitably,the male, upper-
caste,landowningmiddle class-was divorcedfrom agriculturalas
well as industrial,commercial,and financialentrepreneurshipand
from administrativedecisions and legislative or military power
because of colonial racial discrimiation.By the latter half of the
century,a crisisof investmenthad become acute,becauseBengalis
had been squeezed out of higher financial,mercantile,and indus-
trialspheres.Agrarianrent-so far a safe enough source of profit-
was threatenedby some colonialmoves for minimalprotectionof
tenants,and by peasantmovements.These privations,the shrink-
ing scope for self-expressionthrough "male"enterprise,and the
militantnationalistself-organizationof the late nineteenthcentury,
gave the age of consentdebatestheirextraordinarycharge.10

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Tanika Sarkar 605

The characteristicconditionfor the making of culturalnational-

ism becomes evident here. The subjectof enunciationis an upper-
caste, affluent,powerful male voice coming out of the dominant
religious community.However, its design for power is based on
its evocation of certaindeath for itself, its eschewing of its own
undoubted authority and hegemonic capabilities;or, rather,its
hegemony derives from a claim to powerlessness,to the prospect
of extinction.It compels surrenderand submission by flaunting
its fragilityin face of a far more triumphalisthegemonic authori-
ty-Western reason that claims universality for itself." I suggest
that in colonial and postcolonial situations,leaders of communi-
ties ensure their power over the lives of individuals throughsug-
gestions of the imminent death of the community. They then
authorize the self-abdicationof individual claims as a repertoire
of rights separateand distinct from the community'scommands
and injunctions.Community leaders demand a human sacrifice
in the name of the threatenedcommunity.12
In the discourse of cultural-nationalists,there was an implicit
weighing of the relativeimportanceof the two deaths. It was not
that they condoned or sympathizedwith Hari Maiti.Theirrepug-
nance against his act, however, paled into insignificance when
they contemplatedthat countervailingmeasuresmight lead to an
abridgement of the community's totalitarian rule. Could the
death of a girl be equivalent in import to the death of an entire
culturalsystem?As a revivalistnewspaperhad put it on an earli-
er occasion,over the matterof a Hindu woman's claim to repudi-
ate a nonconsensualinfant marriage:"Itis very strange that the
whole Hindu society will suffer for the sake of a very ordinary
woman."13
The great reform campaigns of the nineteenth century re-
volved, one way or the other,aroundthe questionof the woman's
death: sati and the age of consent related to the violent destruc-
tion of her physical body, while the widow remarriageissue was
centered on her death as a sexual being. The question was not
reallywhether the communityor the state should have the power
to inflict death on the woman, although quite often this is how it
is posed. The real issue was whether the woman, as a person, en-
joyed protection from violent death when the community laws
allow such a death to occur.The question was also whether she
was, in fact, legally and politically,a person at all whose claim to

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606 Tanika Sarkar

life would be self-authenticatingbecause of her personhood;or,

was she politicallyand socially a dead person, the way Orlando
Pattersonhad describedthe slave as socially dead, as one whose
claims can not be authenticatedbecause of an absenceof recogni-
tion for her personhood?Finally,the issue was about the relative
importanceof two units: the person as a rights-bearingindivid-
ual, versus the communityas a culture-bearingentity.Becausethe
Hindu communityhas placed supreme emphasis on the woman
as the vehicle of its cultural authenticity,could she be acknowl-
edged as a bearerof culture or as a bearerof individual rights?
Therewere, in other words, looped discourses on the politics of
recognitionand the meaning of survival.Who should be granted
it, if both claims came from threatened species and if the two
claimscontradictedeach other?
What was the role of the colonial state?It is usually seen as an
agency of modernization,trying to acquireculturalhegemony by
outlawing the cultureof the colonized,by refusingthe particulari-
ties of lived practicesin the name of a counterfeituniversalreason
that was actually white, male, and Enlightenmentgenerated.In
practice,however,the colonialstate had always promisedthat the
entire sphere of belief, religious observance, domestic practices
like marriageand inheritance-theregion of personallaws-would
be codified accordingto religiousnorms,scripture,and custom of
the differentcommunities.This, then, was an arenathat the state
itself assigned to the community.All changes related to sati and
widow remarriage,indeed, followed only upon strenuous-and
often dubious-reinterpretations of the scriptureby liberalreform-
ers. A senior and influential colonial bureaucrat, H.H. Risley,
wrote aboutinfantmarriagein 1891:"Manythings have been said
of infantmarriage.... Much of the criticism... seems to be based
on considerableignoranceof ... Orientallife ... and it were folly
to dream of making all things new."14 The politics of recognition
that CharlesTaylorrecommendsfor the survival and self-repro-
duction of subordinatedcommunities"5was indeed guaranteed
by the colonialstate in the field of domesticpractice.
Elaboratedand spelled out, such a politicsof recognitionwould
imply that community norms would not depend on extraneous
issues like moral implicationsderived from universalisticcriteria.
The community would live by its own laws without being re-
quired to explain its particular self-understanding according to ex-

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TanikaSarkar 607

temal norms.16 The compact between the state and the community,
therefore, allowed very little room for social change: Reformers
could address only a few areas where alternative scriptural rulings
or readings were just about possible, but the scope was inelastic. In
any case, the procedure of the compact doubly reaffirmed the rule
of scripture and custom; for laws could not be made, remade, or
unmade on any other grounds apart from scripture or custom.
In colonial deliberations, we find a deep embarrassment and
discomfort. The Age of Consent Act was a halfway-house com-
promise which tried to reaffirm community discipline and also to
ensure the physical safety of the woman. It criminalized cohabita-
tion with a wife under the age of twelve, arguing that this would
ensure that consummation would occur after puberty, for girls
rarely started their menarche before that age. The garbhadhancere-
mony would then be enacted at the right time and prepubertal
girls would also be made safe from premature intercourse. The
compromise pleased none, and the law was indeed an exception-
ally clumsy and inept one. Orthodox pundits and cultural nation-
alists grumbled that this made nonsense of garbhadhan,for most
girls menstruated before age twelve. Hindu domestic order had,
therefore, been dealt its death blow. Liberal reformers, on the
other hand, argued that a lot of girls menstruated after twelve,
and, in any case, menarche did not mark full puberty and physi-
cal and mental maturity necessary for safe intercourse. The law,
therefore, still exposed girls to brutal damage and death.
The colonial government, however, would go so far and no fur-
ther. Moreover, it took good care to surround the act with safe-
guards so that neither domestic privacy nor the husband's privi-
lege would be abused by the state. Outside the spaces of the state
and the community-although overlapping and intersecting with
both-some countervailing institutional developments were taking
place. Modern conditions of communication-especially the
growth of the press, print medium, and a vernacular prose that
was easily accessible to a large, wide-ranging reading and writing
public-allowed the expression of alternative values, articulated
and elaborated through constant debates, arguments, and the pro-
duction of new meanings. Even when the arguments were instru-
ments of a purposive, manipulative rationality, they needed to
sustain themselves before a public tribunal that they needed to
convince. I suggest that two momentous political changes came

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608 TanikaSarkar

out of a public sphere where opinions were exchanged,debated,

revised,and publicized.First,even though the state exemptedthe
communityfromexplainingand justifyingits rationale,the proce-
dures of the publicsphereinsistedthatit must be publiclydefend-
ed. Given the presenceof the informaltribunal,the community-if
it had any hegemonicaspirations-wasforcedto constantlyexplain
itself. Second, in the process, the exchange of arguments broke
down the givenness of communityrule and furtherbroke down
and rendered all norms postconventional-that is, norms that
would now requirediscursive self-justification.Neither religious
injunctions nor state legislation could any more belong to the
realmof nonnegotiablearticlesof faithor unquestioned,sediment-
ed deposits of common sense. Structuringprinciplesof individual
life and of nation were taken apart,debated, argued over, prob-
lematized.Whatemergedwas not so much freshdemocraticlaws
or a higher reasonso much as a weakenedbasis of all injunctions
that could no longer command in majesticauthoritybut would
now have to argueevery inch of theirway. Even if all voices were
more or less patriarchal,authoritarian,power laden,and manipu-
lative, their incessant mutual interrogation loosened up the
groundof theirauthority.Theirmutualcriticismmade transparent
the ideologicalfoundationof all systems.
There was, I suggest, a crucial indeterminacyof all meaning
ratherthan fixed, explicit,confidentcertainties.The public sphere,
throughits pluralizednatureand the consequentproblemof selec-
tion, thus offeredopportunitiesof autonomousmoralchoices to a
politicallyinterestedpublic. ColonizedIndianslacked formalciti-
zenship rights,but within the publicspherethey nonethelessarro-
gated to themselves some of the capabilitiesassociatedwith citi-
zenship. Habermashas postulatedthatideal laws arethose whose
addressees know themselves as possible or potential authors of
the laws themselves."Given the immunity enjoyed by personal
laws, and given the argumentativequalityof the public sphere,an
access to specific lawmaking capacitiesoccurredin this realm of
personal laws in late-nineteenth-century Bengal,even within the
overarching,highly antidemocratic colonialcontext.

I have identified five levels in the discourse around the age of

consent issue which I shall very briefly refer to. The first and the

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TanikaSarkar 609

most immediate were the trial proceedings of the Hari Maiti case,
especially the charge of Justice Wilson to the jury. Then we come
to the opinion of the medical establishment, largely European.
Third is the opinion of administrators, reporting to the govern-
ment of Bengal about the conditions and the problems of child
marriage and premature cohabitation in their respective districts.
Next came statements from Indian men of importance, whose
opinion was solicited by the government before the new law was
drafted. As yet, provincial legislative bodies had no Indian repre-
sentation. The government therefore invited a large and mixed
group to advise it on the law, drawing upon leaders of political
associations, social reformers, well-known journalists, lawyers,
and a very broad group of pundits. Finally, I have relied on dis-
cussions in the public sphere, in journals, newspapers, tracts, the-
atrical representations, and comments.
What is striking is that the government neither asked for wom-
en's opinion, nor did it request Indian correspondents to consult
the opinion of the women in their families. None of the Indian
correspondents-not even the reformists-suggested that they had
done so on their own. One of the reasons for the absence is that
women's organizations were still to come into being. In their
absence, it was far too delicate a matter on which individual
women would express their opinions. Nor do we find specific ref-
erences to the matter in the discursive writings by women that
had started to appear in print beginning in the 1860s. Is it true,
then, that the reformist campaign for raising the age of consent
was more a male concern about the nature of future nationhood
than a concern for the problems of women as perceived by
women themselves?
I would suggest a more finely tuned reading of what appears to
be silences. Women's writings, especially the autobiographical
ones, portray the initiation into married life as a time of great fear.
At the same time, they describe middle age-the onset of the infer-
tile period when the sexual connection was usually terminated-as
a time of relative power, freedom, status, and happiness."8 The
contrast between the felt terror about the beginning of the sexual
connection, and the sense of release associated with its conclu-
sion, could be one way of referring to the unmentionable trau-
matic episode. At least one early woman writer, Basantakumari
Dasi, was quite explicit. Nonconsensual child marriage makes

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610 Tanika Sarkar

chastity both mechanical and difficult, she said, "forphysical inti-

macy is a form of horrible coercion for the child wife, especially in
the total absence of familiarity and compatibility. They are not
animals, they, too, are human beings."19
Young wives sometimes were killed by enraged husbands
when they refused to go to bed with them. Newspaper reports of
these events record something of the strength of their revulsion.
In May 1873, the "mature"husband of a girl of eleven "dragged
her out by the hair and beat her till he killed her," because she
would not come to his bed. He was let off with a light sentence.20
In June 1875, an elderly man beat his young wife to death for sim-
ilar reasons. Neighbors tried to cover it up as a case of suicide, but
a charge of murder was eventually brought against him. The jury,
however, again let him off with a light sentence.21
In several court cases related to forced intercourse, which re-
sulted in physical damage, the girl as well as her mother forceful-
ly and elaborately deposed in the courtroom, even though it was
considered grossly improper for women to appear in court at all
or to refer to things like menstruation or intercourse in public.
Phulmonee's mother, aunt, and grandmother gave graphic and
angry descriptions of her suffering and about her husband's cul-
pability. In another case, reported by the Bengaleein July 1891, the
girl herself gave a detailed account of the rape. So judicial records
did preserve the actual words of women, even when legal dis-
course failed to specifically reserve a space for them. Newspapers
made them reverberate in the public sphere. The Bengalee, a
reformist newspaper, repeated the evidence given by a girl at
court: "Ihave not reached puberty.... My husband violated me
against my will .... When I cried out, he kicked me in the
abdomen. ... He rebukes me and beats me. I cannot live with
him." The elderly husband, however, was discharged by the
British magistrate, and the girl was restored to him.22
Official documents would not seek out the woman's opinion on
such a matter. Nor, as indicated earlier,was there an idea of female
personhood that would make authorities seek out this voice.
Nonetheless, interesting representational possibilities were encod-
ed within legal-judicial and administrative discourses and proce-
dure, through which the girl child and her experience could force
an entry.
The entry was least evident in the words of the judge when he
summed up the evidence on the Hari Maiti trial. In his charge to

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Tanika Sarkar 611

the jury, Justice Wilson dwelled on the man's action alone:

whether he had previous occasions of intercourse with Phul-
monee, whether he knew that vigorous, penetration could be fatal,
whether he knew she had not yet started menstruating. He also
made it a point of criticizing neither Hari Maiti's nature, which in-
clined him to enjoy a child, nor the domestic-conjugal custom that
allowed him to do so. "Under no system of law ... whether Hin-
du or Mohammedan ... has it ever been the law that a husband
had the absolute right to enjoy the person of his wife without
regard to the question of safety to her."23The judge's focus was on
a man's actions on a specific night, and he bent over backwards to
give him every benefit of doubt.
The European members of the medical establishment similarly
made it a point to exempt Hindu marriage custom from all blame.
The British secretary to the Public Health Society of India wrote to
the government of Bengal: "The Council direct me to lay special
stress upon the point . . . that they base no charge against the
native community.... The Council admit that our native fellow
subjects must be allowed the fullest possible freedom in deciding
when their children should be ceremonially married. That, in the
constitution of Hindu society, is a matter with which no govern-
ment could meddle and no Government ought to meddle."24
At the same time, the very nature of their evidence compelled
the medical authorities to focus their gaze on the corpse of the
"unhappy child Phulmonee Dassee." Phulmonee had died after
thirteen hours of agony and continuous, profuse bleeding. They
had to record the precise traces of a brutal and fatal penetration,
they had to agree that even at eleven, which was over the statuto-
ry age of ten, Phulmonee's body was sexually immature. Further-
more, they had to generalize beyond the individual body. They
admitted that even menarche did not prepare the body for safe
intercourse, and, in that case, premature maternity was extremely
dangerous. They talked of difficult and delayed labor, of laceration
of genital passages, of extreme exhaustion and frequent death of
the child mother, even when they had agreed that there should be
no legislative interference with either child marriage or the custom
of early cohabitation. They thought that about twenty percent of
the births in Bengal occurred to mothers between the ages of
eleven and thirteen. They cited medicolegal data to show that in
1872 alone, there were 205 recorded cases of infant deaths from the
results of sexual violation.25

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612 Tanika Sarkar

While medical opinion focused on damaged infantile bodies,

administrators reported on the ubiquity of the custom, in all
places, among all castes and communities.On the whole, it was
more common among lower castes. Among upper castes, due to
the growing pressureof dowry demands, the age of marriagefor
girls was going up slowly, because parentsneeded more time to
put togetheran adequatedowry.26
A few Bengaliobserversadded more intimateand painful de-
tails of other situations:how the little girl was forced againsther
will to go to her husband'sbed, how the older women of the fami-
ly hoped for as early an appearanceof the new generationas pos-
sible,how her vaginawould be dilatedthroughmechanicalmeans
and bleeding artificially induced, to make her ready for inter-
course and conception.They interpretedthe copious tears of the
little girl, when she comes back to the matrimonialhome from a
visit to the natal one, as tears generated by the fear of the hus-
band's advances.They read her wan face, her prematureageing,
and her fatigue and early death as somethinginduced by prema-
ture sexual contact and childbearing.A few of them also talked
occasionallyof mentaland sexual incompatibility,of somethingas
cruel as rape, even though they found it difficultto accept-or to
even conceive of-the concept of maritalrape. If the female voice
could not be admitted yet, a hermeneuticsof decipheringwom-
en's physical signs, gestures,and emotions did develop and were
incorporatedin the deliberationsof the makingof a new law.27
True,all that we have here are male representationsof women's
experiences. But the mediated, refracted male representations
nonetheless refer to the female life world. The representations,
moreover,had to be debatedextensivelyand authenticatedin the
publicspherewhere alreadysome women had appearedas critical
observersand commentatorson domesticcustom.Whatis histori-
cally significantaboutthis departureis thatin the processthe mas-
culine gaze was expanded and altered. A new way emerged of
looking at the woman's sexual or maternal body. We must re-
memberthat Bengalhad an old, establishedclassicalliterarytradi-
tion for describingboth in wonderfullylush, rich detail.Now, we
find deconstructivedescriptionsof both the iconic images:instead
of a nubile, youthful body, the broken body of a mere child;
instead of the sacred, lustrous maternal body, the emaciated,
exhausted body of a child mother. The materiality of pain and
damage peeled away the iconic layers.

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Tanika Sarkar 613

In the process, the home and the family were reinscribedas a

place of danger, of death-whether for satis, for widows barred
from remarriage,or for child wives. This was a crucialdeparture,
because both ancestraltraditionand colonial law consigned the
woman to her home. If the home now appearedas not her refuge
but a torturechamber,her grave, then was there a justificationin
restrictingher to it? I noted earlierthat Hindu culturalnational-
ists used a contrastbetween the loving heart of the Hindu home
with the loveless, coercive nature of colonial rule. They saw all
domestic arrangementsas a matterof willed love and surrender
on the part of the woman, in contrastto the forcedsubmissionof
the Indian man to the colonial order. Bankimchandra,the first
Bengalinovelist, eroticizedthe spectacleof satimost skillfully:the
wife sits amidst rising flames with her dead husband's face
againsther breasts;the fires of the funeralpyre lick her body sen-
suously and consume her as pleasurably as do the flames of
desire.28Widows supposedly spent a lifetimeof sexual asceticism,
exalted by memories of their husbands:widowhood was a time
not of deprivation but of joyous expectation of reuniting with
them.29The child bride was described as a delightful little doll,
full of fun and frolic,bringingpleasureto all.'?The entiresystem-
of widow immolation,of celibatewidowhood, of nonconsensual,
indissolubleinfantmarriage-hadbeen bathed in sharedpleasure,
in sensuality,to make a starkand telling contrastwith other sys-
tems of marriage,and with the heartlessnessof colonialism.
The deliberations over the age of consent, however, struck
more than a jarringnote. It brought the glowing edifice down as
it relentlessly refocused a complacent male gaze on a broken
young femalebody. The Hindu home could no longerprovide the
necessarycontrastto the colonialorder.Worse,it almostseemed to
provide a justification of it, as indeed many women's writings
between the 1860s and the 1890s had claimed: "Men,you have
done a terriblewrong to the women of your countryand, for that,
you are condemned to live as exiles in the land of your birth."31
The deathwas too seriousa matterto allow the male gaze voyeur-
istic satisfactions.Whether revivalist or reformist,it was now a
very anxious gaze. A new possibility also forced itself, adding to
the discomfort.Werethey talking of the woman or about a mere
child yoked to untimely marriage? Was there a separate stage in
the woman's life as childhood, and if so, was it compatible with

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614 Tanika Sarkar

marriage?A newspaperopposing the bill argued that the Hindu

girl's biological development should be differently assessed:
"Accordingto the Hindu, the childhood of a girl is to be deter-
mined by referenceto her first menses and not to her age ... ."32
Reformerslinked childhoodto a stage anteriorto the full matura-
tion of all the sexual, procreativeorgans. A minimum age, they
said, would be a saferindex.
It is also significantthat lawmakingin the domesticrealmgave
short shriftto the divide between the privateand the public.Con-
jugal connections,the woman'sconcretemode of being, her body,
indeed the vagina itself, were matters of lawmaking. A whole
range of newspapersbegan to reporton laws on sati and widow
remarriage.The fortunes of the Bangabashi were made out of its
stand on the age of consent. The Amritabazar Patrikaturned itself
from a weekly newspaper into a daily during the campaign.
Farceslampooning the new law were enacted with roaringsuc-
cess in the new public theatersof Calcutta.
Feministshave noted that the entiredomain of interactiverela-
tionships, of love, nurture,and care, are usually excluded from
moral and political considerations,ensuring a split between the
male sphere of publicjustice,ethics, and morality,and the female
sphereof affect,emotions,and nature."33 In the Indiancolonialpub-
lic sphere,however, questions of politicaljustice and rights were
articulated,and even conceived of, very largely in and through
discussions of the intimatesphere;of domestic arrangements;of
the nature,virtue,and ideals of differentkinds of human relation-
ships. These were often the metaphorfor the largerquestions of
the politics of colonialismwhose effectswere read and evaluated
through the grid of power relationsbetween Indian women and
men.
Women are entirely socialized by and restrictedto family-kin-
community.The notion of a legal rightto life, or a rightto a sexual
life, implicitly,notionally,gave her the protectionthat was neither
promisednor conveyed to her by the communityor the family.It
gave her a new identity as a legal person over and beyond the
group membership,an identity,moreover,that was contestedby
her establishedguardians.It was an identity formed outside the
latter'scontrol,exercisedin an arenathatwas not createdby them.
The woman as notionally a legal person sat somewhat at odds
with her old masters. The ideological interpellation was fractured
just a little bit.

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TanikaSarkar 615

This is an implication of legal personhood that was absent in

the other variant of revivalism-that of the Arya Samaj, for in-
stance.The Samajacceptedmost reformistproposals,but the new
Arya community handed them to the woman as a matter of its
own considerationand will. It knitted the woman far more close-
ly to the family-communitynexus; it did not leave an additional,
potentiallynoncontrolledspace for her. It could not stimulateher
sense of herself as a rights-bearingindividual that she could at
least notionallyderive from the legal identity.

The word "consent"was used in peculiar ways in all these dis-

courses. Medical,legal, reformist,and nationalistopinion agreed
to attachit to a certainphysicalcapacitywhen a girl could sustain
intercoursewithout much damage. Differences arose over sub-
sidiaryissues:when would this capacitybe achieved?Did menar-
che signify full puberty and did eithermenarcheor pubertyindi-
cate sexual maturity?What happens if the girl starts menstruat-
ing before she is twelve and cannot performgarbhadhan because
of the new law? Above all, therewere differencesover whether a
statutory age of consent was necessary or whether it should be
made mandatory that only after menarche would the wife be
allowed to visit her husband.
At this point, the question of self-choiceor of compatibilitydid
not seem to inflectthe notion of consentanywhere.The immunity
that the woman's person would enjoy would depend on when
her body signified a certainreadiness.So it was her body that sig-
nified consent,and it was her body that would enjoy legal immu-
nity till then. The protectedperson was nothing more than a pro-
tected body; personhood for her did not extend to anything
beyond sheerphysicality.
The interestingquestion is why this particularword, then, was
used at all, with all its connotationsof an informed assent. The
Bengalitermfor the Age of ConsentAct was sammatiain,and that
also meant assent based on intelligent understanding.If we say
that this was a mechanical replica of the phrasing used in the
Britishlaw of consent of 1885,we need to look beyond this partic-
ular moment. The word-or a synonym-was used again and
again, in the debates on sati and widow remarriage. Both the war-
ring camps would argue that they represented the authentic

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616 Tanika Sarkar

assent of the woman:while reformersarguedthat widows feared

burning or a sexless life, the orthodoxy insisted that they were
impatient to rejointheir husbands in heaven or that they could
not contemplatesex with anotherman. The Petition against the
Abolition of Suttee of 1829 declared:"Hinduwidows performof
their own accord and pleasure . . . the sacrifice of self-immola-
tion."Later,the Bill to Removeall LegalObstaclesto the Marriage
of Hindu Widows stated:"Inthe case of the widow who is of full
age ... her own consentshallbe sufficientto constituteher remar-
riage lawful."34 The notion of assent, not simply obedience, had
become centralto both fundamentalismand reform.
However strategicallylimited to a physical state or represented
by men, it seems that one way or the other,the woman was sup-
posed to signify consent-to communitydisciplineor to new laws.
And this is a very new thing, indeed. Her consenthad been so far
entirelyabsent as a constituentelement for lawmaking- whether
for the ancientcodes of Manu or of Parasharor in the later edicts
of Raghunandan, or in the eighteenth-century sacred text of
Mahanirvanatantra, much used by RammohanRoy.We find our-
selves, therefore, the thresholdof a new understandingabout
on
the natureof ideal laws, shared,ironically,between reformersand
revivalists.By now, moreover,anticolonialnationalismhad devel-
oped far enough to make the principleof self-governanceby Indi-
ans a normativeideal, as both generalgood and generalright.
Even the nationaladmittanceof the principleof consentwas an
important departure. For once incorporated as a principle, it
would inevitably open the door to more radical demands, as
indeed it did: that women signify their assent in their own words
from an organized forum meant to representwomen's collective
voice and interest,that women mobilize themselves on a public
platform to do so, that women be separatelyconsulted by law-
makers,and that women themselvesbecome part of the lawmak-
ing procedure. When the question of child marriage was re-
opened in 1927,we find that all of these things had alreadyhap-
pened, in less than thirtyyears.
The enormoustransformationindicatedthe formationof a new
femininecompetence.A handful of educatedwomen had already
appearedin the public sphere of print, writing critical,reproach-
ful polemics against Hindu marriage practices.35I suggest that the
emergent possibilities made it imperative to include the term

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TanikaSarkar 617

"consent,"even as its scope was restrictivelyread as mere physi-

cal symptom. The possibilitiesgatheredstrengthin the next two
decades which saw the first beginnings of organized women's
movements. They also saw a far more articulatenotion of gender
rights,spelled out as such. At the time of the age of consent agita-
tions, however, we stand at the confluence of differentpossibili-
ties, at the point of a slow, faltering,but real transitiontoward a
sense of the woman as a rights-bearingperson.
Beyond its very limited and distorted applicationin the legal
arena in 1891,then, the nomenclatureitself showed that the dis-
course on the woman's personhood had started shifting already.
It was a shift that the community,too, needed to accommodate,at
least in its rhetoric.Its leaders might claim exemption from the
criterionof universality of their ethical rules on the grounds of
recognitionof culturalparticularityand difference;but they could
no longer openly say, without severe costs to their hegemonistic
designs, that the assent of theirwomen was not necessary.
The tension between their own laws and their public rhetoric
put intolerable strains on their discourse. The age of consent
debateswere a single, exceptionalmomentwhen they were forced
to say that their stricturewas more importantthan the woman's
consentand, furthermore,thatthis strictureneed not base itself on
the woman's consent.RajendralalMitracould say it only ironical-
ly: Hindu women are given away as cattleare;how can their con-
sent make any differenceto marriagetransactions?36A newspaper
leading the campaignagainstchangingthe law said that even if a
hundred Phulmoneesdied even more painfully,the custom must
be retained." Another ideologue said that Hindu custom was
painful,indeed, and did extracta severe price from its women. Its
glory lay in its very severity."Thisdisciplineis the pride and glory
of chaste women and it prevails only in the Hindu society,"said
anotherstalwartanti-billnewspaper.3If differencewas seen to lie
in greaterdisciplinethan in love, then discipline must be exalted
as the sign of culturalauthenticity.
The older argumentfrom pleasure,however,was an important
ground that culturalnationalistswere forced to cede and surren-
der. Its abdicationdiminished their critiqueof the alien state, and
it darkenedthe brightpicturethat they had painted of the Hindu
home and the Hindu woman. It weakened the moral basis of
their nationalism. In the next century, at the time of mass-level
politics and mammoth, popular anticolonial struggles, the orga-

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618 Tanika Sarkar

nized leadershipof nationalismwould pass from theirhands into

another kind of politics that was ready to combine the impera-
tives of liberaluniversalistargumentswith systemic critiquesof
colonialrule.

The nineteenth-centurycontentions can now be related to some

contemporary debates on individual rights and community
rights.Thereis a growing worry thatthe modem statevaults over
the realm of communityexistenceby distributingrights between
two poles: the individual,culturallyunmarkedcitizen who is the
repository of rights, and the state which guarantees rights. Ex-
cluded froma properlysecuredlegal personhood,the community
cannot-it is felt-expect survival and continuity through future
generations. Hence community laws-which in normal times
ensure cultural authenticity-turn pathological in a situation of
imminentdeath.
It was to avoid this that CharlesTaylorhas argued about the
necessity of ensuring the continuityof minorityculturesand not
merely their survival.Thatinvolves the conferralof certainpow-
ers over the individualand her choiceson the community.39In the
Indian context,controversiessurroundthe classificationof domi-
nant and minoritycultures.ParthaChatterjeehas triedto refuseall
such distinctionbetween indigenous dominantand minoritycul-
turesin the face of the all-pervasivedominanceof the West.Going
by his reoriented,single-axispolaritybetween indigenous/subal-
tern and Western/dominant, we run into a problem.40 What
ground is there to separateout and defend the right to life of an
individual,if we do not ascribeto certainrights the status of uni-
versaland generalgood, even when they run counterto the claims
made upon individual lives by "threatened"cultures? For the
notion of rights as a universalclaimbecomes urgentand substan-
tial only at this point of conflict, where, unless one is given
absolutepriorityover the other,it dies.
Taylor does, indeed, set apart certain "invariantconditions"
where culturalclaimswill not apply,and a matterof life and death
would, obviously,be the first of them.4"However, where do we
ground such invariantconditions,when we privilegethem over a
culture's demands? We can only refer to the claim to life as an
absolute imperative; but if we do so, we have already conceded

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TanikaSarkar 619

the most vital and enduringclaims of universalrights.The claims

of the community will henceforthbe parasiticupon the residue
that is left over from the domain of rights.To argue on these lines
does not at all mean wiping individual lives clean of community
and cultural influences. It means simply not allowing them
mandatory powers even when the individual rejects certain
aspects of them. It also allows the individual to select, move
away, and deny aspects of the culture into which she is born.
Only within a horizon of freedomcan she have a meaningfulrela-
tionshipwith her culturallife world.
In a very important qualificationmade by Seyla Benhabibto
the notion of rights, there is a continuitythat is posited between
the embedded and embodied individual self that can only derive
its full identity from a collective,communitarianidentity.Haber-
mas suggests a similar convergenceby pointing out the organic
link between the individual and her life world, so that the two are
not conflictedbut are complementaryidentities.A fuller realiza-
tion of the rights of the formerwill lead on to a largerfullness of
the rightsof the latter.
The reflectionson the necessaryconnectionsbetween the indi-
vidual and the collective selves are entirely valid. At the same
time, they conceala partof our problemby overlookingthe possi-
bility of rupture and choice. It is not enough, when conflict
occurs,to fall back upon the categoricalsanctityof invariantcon-
ditions. It is necessaryalso to recognize that they are universalis-
tic in nature, and they demand a greaterclaim over and above
particularisticconsiderations,however urgent.
Benhabibhas rightly pointed out that critiquesof universalism
choose to use "substitutive"ratherthan "interactive" conceptions
of the idea.42The latter would indeed take care of many of the
questions posed by the critique;for while "substitutive"concep-
tions evoke a false universalismby substitutinga particularcul-
ture for the universal,interactivenotions base universalnorms on
something like a genuine fusion of normative horizons. Interac-
tive universalism comes about through an acknowledgment of
"concreteothers"who are culturallyand historicallyembedded in
differenttraditionsand histories.This is indeed a most necessary
and pertinentcorrectiveto a "substitutiveuniversalism"where a
masked culture masqueradesas universalisticnorms, and where
a total abstractionfrom concretehistoriesmakes the Otherdisap-

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620 Tanika Sarkar

pear as concreteentities, embedded in different,particularhisto-

ries. At the same time, thereis still a dangerthat an overaccented
notion of differenceas the guaranteeof human pluralitymay lead
to a legitimation of all personal histories and disallow a move
outside of tradition,of community,of inheritedconditionswhich
make up a person's sense of her own history-conditionswhich
become the sole source of authenticmeaning and value for her,
outside of which there can only be a loss of identity.43Where do
we fit the politics of transformationinto this scheme? History
must not become destiny.44

NOTES
1. Simmons, Honorary Secretary, Public Health Society of India, to Chief Secretary,
Government of Bengal, Calcutta, 1 Sept. 1890; Bengal Government, Judicial, NF JC/17/
Proceedings 104-17, June 1893.
2. Dainik0 Samachar 14Jan.1891.
Chandrika,
3. For legal reforms, see J.D.M. Derett, Religion, Law, and the State in India (London:
Faber & Faber, 1968); also see Sir William Marby, Hindu and MohammadanLaw (Calcutta,
1906; reprint Delhi, 1977); Sripati Roy, Customs and Customary Law in British India,
Tagore Law Lectures (Calcutta: Calcutta University, 1908-09).
4. For a more old-fashioned orthodox statement, see its presentation and refutation:
Ramnath Tarkaratna, Opinion on the Garbhadahan Ceremony according to Hindu
Shastras, Delivered to Government, Calcutta, 1891.
5. Bangabashi,21 Mar. 1891; RNP, Bengal, 1891.
6. Bangabashi,28 Mar. 1881.
7. For a discussion of these arguments, see Tanika Sarkar, "Rhetoric against Age of Con-
sent: Resisting Colonial Reason and Death of a Child-Wife," in Economic and Political
Weekly36, 4 Sept. 1993: 1869-78; and "The Hindu Wife and the Hindu Nation: Domestic-
ity and Nationalism in Nineteenth-Century Bengal," in Studies in History 7, no. 2 (1992):
213-37.
8. See H.H. Risley, Tribesand Castes of Bengal:EthnographicGlossary,vol. 1 (1891; reprint,
Calcutta: Mukhopadhyaya, 1981), xciii.
9. Bangabashi,25 June 1887; RNP, Bengal, 1887.
10. See Sarkar, "Hindu Wife and the Hindu Nation."
11. This suggests a modest and timid variant of Social Darwinism: instead of a race for
survival through assertion of power over other nations, recommended here is a survival
of the nation through the preservation of identity.
12. Imminent death as a dominant motif in cultural-nationalist discourses has been dis-
cussed in the context of early-twentieth-century Hindu militant politics by P.K. Datta,
Ideologyin Early-Twentieth-Century
CarvingBlocs:Communal Bengal(New Delhi:Oxford
University Press, 1999).
13. Dhumketu,4 July 1887; Report on Native Newspapers, Bengal, 1887.
14. Risley.
15. See Charles Taylor, "The Politics of Recognition," in Multiculturalism, ed. Amy Gut-
man (Princeton: Princeton University Press, 1994), 25-73.
16. Such safeguards to the privileged control of the community over intracommunal
relations and decisions are recommended as a viable political alterative to uniform citi-

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Tanika Sarkar 621

zenship notions by Partha Chatterjee for present times as well. He also suggests com-
plete freedom to communities for settling intercommunity relations and conflicts
according to norms generated entirely within group ethics and without any recourse to
universalistic reason. See Partha Chatterjee "Secularism and Toleration," Economic and
Political Weekly,9 July 1994. For a critical reflection, see Sumit Sarkar, "The Decline of the
Subaltern," in Writing Social History (Delhi: Oxford University Press, 1997), 82-108.
17. Colonized Indians were not citizens in any real sense. In 1890-91, they had not come
to acquire even the most nominal representation in legislative bodies. At the same time,
the state allowed self-governance in the realm of personal laws. Although those laws
perpetuated the discipline of high-caste patriarchal norms, now even they were under
considerable strain from public debates. See Jurgen Habermas, "Struggles for Recogni-
tion in the Democratic Constitutional State," in Multiculturalism, 107-48.
18. This comes out very clearly in the first full-length autobiography in the Bengali lan-
guage, Rashsundari Debi's Amar Jiban (Calcutta, 1875). I have translated it and have
incorporated the translation in my Words to Win! Amar Jiban,A Nineteenth-CenturyAuto-
biography(New Delhi: Kali for Women, 1999).
19. Basantakumari Dasi, Jositvigyan (Barisal, 1875), 2.
20. EducationGazette, 11 May, 1873; RNP, Bengal, 1873.
21. Dacca Prakash,8 June, 1875; RNP, Bengal, 1875.
22. The Bengalee,25 July, 1891.
23. Justice Wilson's charge to the jury in the case of Empress v. Hari Mohan Maitee, Cal-
cutta High Court. Report sent by Acrar, Clerk of the Crown, High Court Calcutta, to
Officiating Secretary, Government of Bengal, Calcutta, September 1890. Bengal Govern-
ment, Judicial, J C/ 17/, Proceedings 90-102, 1892, Nos. 101-2, File J C/17-5.
24. Simmons, 1 Sept. 1890.
25. Ibid.
26. See, for instance, letters from F.R.S. Collier, District Magistrate, Midnapore, 4 Feb.
1891; D.R. Lyall, Commissioner, Chittagong Division, 5 Feb. 1891; E.E. Lowis, Chief
Commissioner, Rajshahi Division, 3 Feb. 1891; H. Savage, Magistrate of Backergunje, 1
Feb. 1891; and many others, Files J 7A/2, Judicial, Political and Appointments Depart-
ments, Judicial, 1891.
27. See especially, Ishan Chundra Mitra, Government Pleader, Hooghly, to the Chief
Secretary, Government of Bengal, 2 Feb. 1891; Duaraka Nath Ganguly, Assistant Secre-
tary, Indian Association, to Chief Secretary, 6 Feb. 1891; B.C. Seal, Sessions Judge of
Bankura, to Chief Secretary, 6 Feb. 1891; Manomohan Ghose, Barrister and Advocate,
Calcutta High Court, 6 Feb. 1891; and many others, ibid.
28. Bankimchandra, Kamalakanta (Calcutta, 1875); Jogeshchandra Bagal, ed., Bankim
Rachanabali,vol. 2, Sahitya Sansad (Calcutta, 1954), 73.
29. Chandrakanta Basu, GarhasthyaPath (Calcutta, 1887).
30. Descriptionof a wedding in SulabhSamachar
0 Kushadaha
cited in Reporton Native
Papers.
31. For citation of many such views by the first generation of writing women, see Words
to Win.
32. Dainik 0 SamacharChandrika.
33. See Seyla Benhabib'sdiscussion of LawrenceKohlbergand Carol Gilligan in "The
Generalized and the Concrete Other: The Kohlberg-GilliganControversy and Moral
Theory," Feminism as Critique:On the Politics of Gender,ed. Seyla Benhabib and Drucilla
Cornell (Minneapolis: University of Minnesota Press, 1987), 280-91.
34. Cited in Radha Kumar, The History of Doing: An IllustratedAccount of Movementsfor
Women's Rights and Feminism in India, 1800-1990 (Delhi: Kali for Women, 1993), 12, 18.
35. I have discussed these writings in my Words to Win. See also Rosalind O'Hanlon, A
Comparisonbetween Women and Men: TarakaiShinde and the Critique of Gender Relating in
ColonialIndia (Delhi: Oxford University Press, 1996).

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622 Tanika Sarkar

36. Rajendralal Mitra, cited in Hindoo Patriot, 25 Dec. 1890.

37. Bangabashi,25 Dec. 1890, RNP, Bengal 1890.
38. Dainik0 Samachar
Chandrika.
39. See Taylor.
40. See ParthaChatterjee,NationalistThoughtand the ColonialWorld:A DerivativeDis-
course? (Delhi: Oxford University Press, 1993), 16, and The Nation and Its Fragments
(Princeton: Princeton University Press, 1993).
41. Taylor.
42. Benhabib in Feminismand Critique.
43. The entire question of the nature of identity, which is most mortgaged a community
discipline, has acquired a sinister aspect in the present Indian context. A militaristic and
intolerant political formation-a variant of Hindu nationalism-has emerged as the domi-
nant partner within the ruling coalition government at the center. A mass-front organi-
zation of this party masterminds violent campaign against Indian Muslims and Chris-
tians, arguing that these minority communities are the products of conversion away
from Hinduism which is the sole authentic religion of the Indian people, the repository
of the cultural identity. Any stepping away from this identity threatens the imminent
loss of India's cultural distinctiveness. Conversion, therefore, is something that cannot
be allowed to Indian people. See Sumit Sarkar, "Hindulva and the Question of Conver-
sions," in The Concise Indian's Guide to Communalism,ed. K.N. Panikkar (Delhi: Viking,
1999).
44. For an excellent discussion of certain forms of universalisability, and of the prob-
lems that arise when they are denied, see Martha C. Nussbaum, Introduction, and
Martha Chen, "A Matter of Survival: Women's Right to Employment in India and
Bangladesh," as well as Roop Lekha Verma, "Family Equality and Personhood" all in
A Studyof HumanCapabilities,
Women,Culture,and Development: ed. MarthaNussbaum
and Jonathan Glover (Oxford: Clarendon Press, 1995), 373-61; 426-33.

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