The Rule of Colonial Indifference - Rape On Trial in Early Colonial India, 1805-57

The Rule of Colonial Indifference: Rape on Trial in Early Colonial India, 1805-57
Author(s): ELIZABETH KOLSKY

Source: The Journal of Asian Studies , NOVEMBER 2010, Vol. 69, No. 4 (NOVEMBER
2010), pp. 1093-1117
Published by: Association for Asian Studies
Stable URL: https://www.jstor.org/stable/40929285
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The Journal of Asian Studies Vol. 69, No. 4 (November) 2010: 1093-1117.
© The Association for Asian Studies, Inc., 2010 doi:10.1017/S0021911810002937
The Rule of Colonial Indifference: Rape on Trial

in Early Colonial India, 1805-57
ELIZABETH KOLSKY
This article explores the history of intraracial (Indian-on-Indian) rape in

colonial India. Though at times uneven and unpredictable in their ru
British judges created a set of evidentiary requirements and a body
decisions that were as harsh on rape victims as the precolonial Islamic sy
was presumed to be. Despite the colonial promise of a more moder
humane criminal law, the gradual displacement of Islamic law did li
widen rape victims' path to legal remedy. English common law presumpt
about the frequency of false charges and a suspicion of women's claims co
with a colonial insistence on the peculiarity of Indian culture to make it d
for victims of rape to prevail in court. The colonial legal treatment of the
sational" crime of rape was rather unsensational. It largely reflected conte
ary trends in England, which raises the important question of wh
distinctively colonial about it.
1810, the case of Gobind v. Oodaiseen was reviewed by the Nizamut

the superior criminal court of reference and appeal in colonial Ben
case involved a young victim, nine-year-old Mussummaut Mahrane
claimed that she was herding her fathers sheep when defendant O
began scolding her for destroying his corn crop. According to Mahranee
seen grabbed her, carried her into a neighboring field, and raped her. H
vented her from crying out by grasping her throat and smothering
with her clothes. Mahranee s statement was corroborated by several wit
one of whom testified that he heard her screams and ran over to find her
"lying on the ground almost senseless; her clothes thrown aside from her body;
and her limbs covered with blood. He at the same time saw the prisoner going
off from the field." Other witnesses saw Mahranee return home in excruciating
pain with copious amounts of blood flowing from her vagina. The chumarin
(midwife) who was summoned to perform a physical examination described Mah-
ranee s wounds as necessarily resulting from a sexual assault. Although there was
no full legal proof of guilt under Islamic law, the Islamic law officers decided that,
based on the strong circumstantial evidence, Oodaiseen was subject to discretion-
ary punishment, sentencing him to thirty stripes with a corah and seven years'
imprisonment (NAR 1810, vol. 1).
Mahranee s was one of many rape cases reviewed by the Nizamut Adalat in
the first half of the nineteenth century. Much has been written about culturally

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1094 Elizabeth Kolsky
specific forms of violence against women in colonial India, such as sati (widow
immolation), female infanticide, and dowry death. Construed by British officials
as scandalous crimes of culture, the attention focused on these practices was inex-
tricably linked to the colonial state s assertion of a benevolent civilizing mission
(Mani 1989; Oldenburg 2002). By contrast, the paucity of secondary literature
would seem to suggest that culturally common forms of gender violence such as
rape and domestic abuse were of little interest to colonial authorities in India.
But this is not the case. Even if these less sensational forms of violence against
women did not appeal to parliamentary reformers in the same way that sati did,
everyday acts of violence were frequently considered by the colonial courts. For
evidence of this, we need only turn to the records of the Nizamut Adalat, where
more than one-third of all reported murder trials between 1805 and 1850 involved
the death of wives, witches, and concubines. All thirty-one recorded cases of jus-
tifiable homicide in this period involved husbands who killed their wives for adul-
terous acts, so many that in several indices of the NAR, the entry for "Adultery"
refers the reader to "Justifiable Homicide" and "Murder of a Wife."
British administrators saw the physical abuse and murder of Indian women
by Indian men as a social problem that should be handled by Indians themselves
and not by the colonial state. Consequently, no special commissions of inquiry
were ever set up by colonial reformers to examine or control it. In 1852,
Bengal official George Campbell observed that the high rate of murder in
India was both unavoidable and unavoidably gendered: "The great majority of
murders are of a domestic description, generally the result of passion or
wounded pride; and in most cases there is a woman in the matter . . . These
cases then are not so much a question of police as of social habits; there is no pre-
venting them" (1852, 499). The establishment of colonial legal institutions unwit-
tingly drew British authorities into policing domestic violence in ways that
frequently reinforced native patriarchal authority and the state s political power
(Ghosh 2006). However, even if colonial law was not intended to correct or
control "common" forms of gender violence - "common" in the sense that wife
murder and rape are found across cultures, whereas sati is a particularly
Indian phenomenon - the law still had an important and discernable impact.
Scholarship on sexual violence in European colonies in Asia and Africa has
generally focused on interracial rape, adopting one of two analytical frameworks.
Literary scholars analyze the rhetoric of rape as a trope and metaphor for imper-
ial conquest and conflict (Paxton 1999; Sharpe 1993). Historians tend to focus on
the politics of purported rape and colonial anxieties about "black peril," the per-
ceived sexual threat posed by native males to white women (McCulloch 2000;
Stoler 2002). Both of these frameworks foreground questions of discourse,
emphasizing how perceptions about sexual violence stood in for other "tensions
of empire" (Cooper and Stoler 1997).
This article moves the literature in a new direction by exploring the colonial
legal history of intraracial (Indian-on-Indian) rape in early colonial India,

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The Rule of Colonial Indifference 1095
primarily in Bengal.1 Though at times uneven and unpredictable in their rulings,

British judges and the law they administered created a set of evidentiary require-
ments and a body of legal decisions that were as harsh on rape victims as the pre-
colonial Islamic system was presumed to be. Despite the colonial promise of a
more modern and humane criminal law, the gradual displacement of the
Islamic criminal law did little to widen the path to legal remedy. English
common law presumptions about the frequency of false charges and a suspicion
of women's claims combined with a colonial insistence on the peculiarity of
Indian culture to make it very difficult for Indian rape victims to prevail in colo-
nial courts. Conviction rates in rape cases continued to decline into the twentieth
century as the colonial legal system was modernized and rationalized (Kolsky
2010). The pursuit of justice may have brought Indian women into the colonial
court system, but the verdicts delivered by the Nizamut Adalat in cases of rape
did little to vindicate their claims. In the final analysis, the colonial legal treat-
ment of the "unsensational" crime of rape was itself rather unsensational. It
largely reflected contemporary trends back home in England, which raises
important questions as to what, if anything, was distinctively colonial about it.
In the case of rape, it was the rule of colonial indifference that prevailed.2
The Law of Rape in Early Colonial India
In 1765, the East India Company assumed the right to administer justice in
Bengal. Governor-General Warren Hastings s "Plan for the Administration
Justice" (1772) adopted a noninterventionist approach that maintained existing
laws even as it introduced British models of procedure and precedence an
installed British judges in Indian courts, including the Nizamut Adalat. Hastings
plan divided the law into two spheres. In the private sphere, personal or religiou
law would apply Hindu and Muslim law to issues such as succession, inheritance
and marriage. In the public sphere, nonreligious law would apply to matters su
as property, taxation, and commerce. The colonial distinction between personal
and public law was a clearly gendered distinction that privatized questions con-
cerning women, family, and tradition. Hastings s plan explicitly abolished fine
against adultery, fornication, seduction, rape, and other "offenses against moral-
ity" on the grounds that such matters should not be publicly exposed in th
courtroom.
Hastings s plan nominally left Islamic criminal law in place. Islamic crimi
law is organized around a principle of private justice in which individuals ini
criminal proceedings, subordinating the role of government and privileging
*On interracial rape in early colonial India, see Durba Ghosh (2006, chap. 5).
On the rule of colonial difference, a principle of governance based on an essentialized diffe
between colonizer and colonized, see Partha Chatterjee (2003). On how the rule of colonial di
ence impacted colonial criminal law and procedure in India, see Elizabeth Kolsky (2005).

202.41.10.108 on Mon, 25 Sep 2023 05:33:41 +00:00
wishes and needs of victims. The British found this system to be irrational,
unequal, and arbitrary, as well as contrary to their notions of public justice, equal-
ity before the law, and due process. Not long after Hastings s plan was instituted,
the colonial state began to arrogate to itself the power to prosecute and punish,
superseding Islamic criminal law in the name of public interest. Because laws
relating to women were confined to the private sphere, the kinds of gender
violence that attracted the attention of nineteenth-century liberal British
reformers - such as sail - were debated in cultural and religious terms and not
as matters of criminal justice (Mani 1989).
Until 1860, the criminal law of most of British India was a hybrid mix of
Islamic law and Company regulations referred to as Anglo-Muhammadan law.
The Company's criminal court system in Bengal had three rungs: district
courts, Circuit or Sessions Courts, and the Nizamut Adalat. Magistrates at the
district level had limited authority to try and punish criminals and primarily
served to arrest accused persons, hold preliminary inquiries, and commit cases
for trial to the Sessions Courts. Sessions Courts were manned by British
judges who made legal decisions with the assistance of native law officers
(kazis and mufiis) who issued fatwas (legal opinions) grounded in Islamic juris-
prudence. In Bengal, when a Sessions Court judge disapproved of afatwa or
when the sentence proposed was death or life imprisonment, the record of the
case was referred to the Nizamut Adalat for final orders and sentencing.
Judges in the Nizamut Adalat were also British only, and made decisions with
the assistance of Islamic law officers.3 The power of the Islamic law officers
and the status of Islamic criminal law were gradually eroded by a series of
Company regulations and totally phased out with the enactment of the Indian
Penal Code in 1860.
Early colonial rape law was shaped by the confluence of two legal traditions:
English common law and Islamic criminal law of the Hanafi school. The most
important figure in eighteenth-century English legal thinking on rape was Sir
Matthew Hale. Hale defined rape as vaginal penetration by a man (or men) of
a female above the age often years and against her will (1736, sec. 628). Hale
was predominantly concerned with the perceived problem of false charges,
and he framed rape victims as a special class of witnesses to whom special stan-
dards of truth applied.
In contrast to the laws approach to most crimes, where the focus is on estab-
lishing the commission of a prohibited act (actus reus) and the mental state of the
accused (mens rea), Hales strict evidentiary requirements concentrated on the
victim, placing her at the heart of the trial. A victim s claim and credibility
required corroborating "circumstances of fact," all of which centered attention
on her character, body, and behavior before, during, and after the alleged
^he Madras and Bombay presidencies had nearly identical court structures and legal procedures.

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rape. A woman's prior sexual history, fresh complaint (an immediate police
report), and marks of physical violence were all crucial pieces of evidence
required by Hale to dispel the presumption that the victim had consented to
sex and then lied about it. Hale advised that a cautionary message be read to
juries warning them about accepting a woman's testimony: "rape is a most detest-
able crime, and therefore ought severely and impartially to be punished with
death; but it is an accusation easily to be made and hard to be proved, and
harder to be defended by the party accused" (1736, sec. 635).
While there is no historical evidence to support Hales fear of malicious pro-
secutions (Edelstein 1998), it is worth noting that the laws of rape in other early
modern and modern Asian contexts shared Hales overwhelming preoccupation
with false charges. In Qing China, the Qing Code (1646) defined rape in extre-
mely stringent terms that closely resemble Hales. Victims had to provide evi-
dence of serious physical injuries as well as proof of chastity and vaginal
penetration in order to substantiate a rape charge (Ng 1987). Rape law in
modern Japan is also similar to the English common law tradition in its emphasis
on proof of physical force and a skeptical approach to victims (Burns 2005).
In colonial India, Hales impact was direct, as the upper-level judges, who
were all British, frequently cited him in their legal opinions. For example, in
Jakhoo xjoulud Bhowanee, twelve-year old Thukhoo alleged that thirty-year old
Jakhoo raped her in his garden, smothering her with her sari to prevent passersby
from hearing her cries. Covered in blood, Thukhoo returned home and promptly
informed her family about what happened. Jakhoo admitted to having inter-
course with Thukhoo, but claimed it was consensual. Finding it impossible to
believe that a young virgin who immediately complained about being raped
while covered in blood could have consented to sex, the Sessions Court rec-
ommended conviction. The Bombay Sudder Foujdaree Adalat (Bombay's
regional counterpart to Bengals Nizamut Adalat) acquitted Jakhoo, reasoning
that he could not possibly have had intercourse with Thukhoo without her
consent, as no traces of injury were found on her body and no people in the
area heard her cries. Reciting Hale verbatim, Judge W. E. Frere observed, "In
trying cases in which persons are charged with this detestable crime, we must
remember the excellent advice that it is an accusation easily to be made, and
hard to be proved, and harder to be defended by the party accused, though
never so innocent . . . [Thukhoo s] object clearly was ... to shift the guilt from
her own shoulders to those of her partner in guilt" (Morris 1854).
In Islamic law, rape is a form oizina, an Arabic term that encompasses unlaw-
ful types of sexual intercourse including extramarital sex, adultery, sodomy, pros-
titution, and rape. The Islamic laws inclusion of rape within a larger framework of
various kinds of illicit intercourse is not unique. It was also a feature of Chinese
imperial law (Sommer 2002). Zina is a hudood crime, a crime against Allah for
which a specific punishment is established by the sacred texts. Whereas most
crimes in Islamic law are considered private wrongs against the individual,

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hudood crimes are matters of public justice. Theoretically, prosecution of hudood

crimes is mandatory and punishment cannot be reduced or suspended once guilt
has been proven (Sanad 1991).
The evidence doctrinally required for a zina conviction is either four pious
Muslim male eyewitnesses or four confessions by the defendant on four separate
occasions in four different places. If a confession is withdrawn, punishment
cannot be executed. An accuser who fails to submit sufficient evidence may be
charged and punished for other hudood crimes, including qazaf (defamation)
and zina, as a complaint of rape can itself be received in court as an admission
of illicit intercourse. Generally, the harshness of hudood punishments - for
zina, the punishment of married people is death by stoning, and the punishment
for unmarried people is one hundred lashes - is mitigated by strict evidentiary
rules that mitigate the severity of the substantive law in practice (Anderson
1966-67a, 1966-67b).
Dissatisfaction with the low rate of conviction in a variety of crimes, including
rape, prompted the East India Company to modify the Islamic law. Bengal Regu-
lation XVII of 1817 reserved the power of conviction and sentencing in rape cases
to the Nizamut Adalat. Sessions Courts were required to refer all cases in which
the law officers either found the defendant to be legally guilty or the circumstan-
tial evidence indicated his guilt. It also empowered the Nizamut Adalat to convict
when two or more judges disagreed with their law officers' recommendation to
acquit. The move to secure a higher conviction rate in rape cases was part of
the broader colonial effort to create a system of certain justice that defined
crimes clearly and meted out punishments with regularity. One of the great
ironies surrounding the British critique of Islamic law is that while they con-
demned it for being inhumane and barbarous in theory, they reformed it to
make it harsher and stricter in practice (Fisch 1983).
In 1828, a Parliamentary Act set the age of consent in India at eight years.4
Rape, sodomy, and sexual intercourse with a girl under eight were capital felo-
nies, and intercourse with a girl between eight and ten was a misdemeanor pun-
ishable with imprisonment. In England, it was a felony to have intercourse with a
girl under ten and a misdemeanor to have intercourse with a girl between ten and
twelve. Colonial theories about the early age at which females in tropical environ-
ments "ripened" were used to justify this difference in the Indian and English
laws (Singha 1996).
In the draft Indian Penal Code, composed by Thomas Macaulay and the first
Indian Law Commission and submitted to the government of India in 1837, rape
was defined as sexual intercourse by a man with a woman under one of five cir-
cumstances: against her will; without her consent while she is insensible; with her
consent when it has been obtained by putting her in fear of death or hurt; with
49 Geo. IV. c. 4.

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her consent when the man has tricked her into thinking he is her husband; or
when the girl is under nine years of age (Indian Law Commission 1837). The pro-
posed punishment for rape was imprisonment for not less than two years and not
more than fourteen, which was more lenient than both the existing punishment
in India (death) and in England (death until 1841 and then transportation for
life). When the Indian Penal Code was enacted in 1860, the rape section
remained almost as originally drafted.
Rape on Trial in the Nizamut Adalat, 1805-50
The Nizamut Adalat reported twenty-three rape cases between 1805 and
1850. These trial records were selected for publication and served as binding
legal precedents on the lower courts in the region (see table 1). In this reported
case law, the overall rate of conviction (57 percent) is higher than the overall rate
of acquittal (35 percent). This is to be expected, because under Bengal Regu-
lation XVII of 1817, the Nizamut Adalat only reviewed cases in which the
lower courts had already found the defendant to be legally guilty. Viewed in
this way, the rate of conviction is surprisingly low: the Nizamut Adalat confirmed
the lower court s recommendation to convict only slightly more than one in two
times. As these cases were selected for publication from a larger pool of trials, we
must be careful not to attach too much statistical significance to them. However,
given that they were purposefully chosen, and because they shaped legal decision
making in the lower courts, there are meaningful conclusions we can draw from
them about trends in colonial judicial reasoning at the time.
The majority of the cases in this period involved girls ranging in age from
three to ten years. Girls were more than twice as likely to win their cases than
women were. Some colonial administrators explained this fact away by suggesting
that girls were raped more frequently than women because of the superstition
that "intercourse with a virgin is a certain cure for venereal diseases" (Powell
1902). However, this is an unlikely explanation, as criminal courts in England
also punished the rape of children more consistently and more severely than
the rape of grown women (Clark 1987). A more likely reason for the greater
number of and higher conviction rate in cases involving girls is that the question
of consent was immaterial.
British judges were always on the lookout for false charges, and they per-
ceived girls to be more credible complainants and probable victims. This was
clearly expressed in Government v. Fakeerchand Chung, in which eight-year
old Mussummaut Muhesree claimed that she had gone out to collect firewood
when Fakeerchand Chung, "meeting her in the jungle[,] took her up in his
arms, and had forcible connection with her." Fakeerchand Chung prevented
Muhesree from screaming by stuffing a cloth in her mouth. Muhesree was
found covered in bloody clothes and crying in the very spot where she had

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been raped. Muhesree was immediately examined by her mother and other
women, who verified that she had been injured. In their conviction, the
Nizamut judges held that "from her tender age, it was not likely she should
give any encouragement or inducement to sexual intercourse." Fakeerchand
Chung was sentenced to seven years in prison (NAR 1828, vol. 3). Were Muhes-
ree not of "tender age," the Court may well have presumed that she had encour-
aged or induced the assault.
The inclination to assume that girls would not acquiesce to sex and then
charge rape is also evident in Emambuksh v. Bubroo Gareewan, Son of haul
Mahomed, in which the Court described the facts of the case in the following
terms: "Mussummaut Hoorun is ten years of age unmarried and of a stature
and growth that precludes all idea of her acquiescence" (NAR 1834, vol. 4).
Reading these decisions in reverse, so to speak, we find that the Nizamut
Adalat judges approached a rape case presuming that the charge was false -
that the complainant had consented to sex and then lied about. This is precisely
what their contemporaries did in England and elsewhere in the British Empire
(Block 2006; Clark 1987).
In considering these cases, it is important to emphasize just how much was at
stake for Indian females and their families in lodging a rape charge. In India, as
elsewhere around the world, rape was (and still is) a highly underreported crime.
Given the symbolic importance attached to female honor, purity, and chastity in
both the Hindu and Muslim communities, girls and women who charged rape
faced social ostracism, stigma, and violence. For example, in Government v.
Mokhoo Ruffoogur and Bhekaree Singh, a married woman was allegedly raped
by her neighbor. Her husband, who initially made a complaint of rape at the
thana (police station), was later "driven to commit [murder] by the disgrace
his wife had brought on him, and the taunts of the prisoner Mokhoo, [which]
added to the indignity to which he had already subjected him" (NAR 1825, vol. 2).
Some colonial administrators recognized the social conditions and honor codes
that made it extremely risky for Indian females to institute a charge of rape, much
less lodge a false complaint. As the Sessions Court judge of Tipperah noted in
Government and another v. Ramdoolall Deo and Guneshsham Surmah, the disgrace
brought on a woman and her family by lodging a rape complaint strongly discour-
aged her from reporting the crime and testifying in a public court of law:
A charge of rape is in this country almost as serious a matter to the parties

preferring it, as it is to the party charged. It involves, if not the absolute
loss of caste, a degree of disgrace which, however, unjustly attaches to the
woman and her family so long as the memory of the occurrence lasts . . .
The necessity of the [woman's] appearance in two public Courts and the
nature of the evidence she would have to give, are further considerations
against a charge of this kind being lightly or untruly brought (NAR 1857,
vol. 7).

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Shame probably caused many Indian women to conceal the sexual violence com-
mitted against them. Sometimes it prompted them to lodge other criminal
charges against their attackers. In Mussummaut Rookmun v. Ramsook, Mussum-
maut Rookmun accused defendant Ramsook of robbing her. On the way to the
thana, Ramsook admitted that he had raped Rookmun but denied robbing her.
Initially, Rookmun insisted that she was robbed only and not raped. However,
she ultimately instituted charges of both highway robbery and rape, explaining
that shame had caused her to deny the rape. Ramsook pleaded not guilty to
both charges. The Sessions Court law officer found that "the unsupported evi-
dence of the prosecutrix was not sufficient to convict the prisoner of robbery;
but that it might be presumed that the prosecutrix, being deterred by shame
from acknowledging the rape in her previous examinations, had sworn robbery
against the prisoner, in order that he might not escape punishment." The Sessions
Court found the prisoner legally guilty of rape and referred the case to the
Nizamut Adalat, where Ramsook was convicted of rape and sentenced to
seven years in prison, banishment to another district, and lashes (NAR 1819,
vol. 1).
In Government v. Ramkishen Sing and Four Others, Mussummaut Gungee
alleged that she was walking alone along a jungle path when she was approached
by five men who grabbed her, gagged her, carried her off into the woods, and
robbed her. The defendants were originally charged in the Minadpore Zillah Ses-
sions Court with highway robbery. They denied the robbery charge but admitted
that they were all "enamored" of Gungee and lay in wait "to gratify their lust . . .
forcibly and against her consent." The Sessions Court judge charged the men
with rape, conjecturing that Gungee had concealed the rape because "reproach,
disgrace, and loss of caste to a whole family, would have been the necessary
attendants on a faithful disclosure of all the circumstances connected with the
outrage committed on Mussummaut Gungee; and that, to avert such conse-
quences, she had been no doubt instructed and induced to conceal the truth
and to prefer a charge of a different nature against those who had so savagely
assaulted her" (NAR 1830, vol. 3).
In contrast to these cases, in which the judiciary was sympathetic to the
causes that inhibited Indian women from instituting rape complaints, in many
instances, British judges did just the opposite. It was not uncommon for
British judges to vacate a charge of rape and to replace it with an adultery
charge, highlighting the status of women as the property of their husbands
rather than individuals to whom hurt could be done. This was consistent with
nineteenth-century Bengali notions about women's individual rights, or lack
thereof. As Tanika Sarkar observes, "[n]ineteenth-century colonial Bengal was
not a time when individual rights as an inalienable, public, and explicit claim
could be asserted by 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-
community nexus-to which rights could adhere" (Sarkar 2000, 602).

202.41.10.108 on Mon, 25 Sep 2023 05:33:41 +00:00
In Mussummaut Jooee v. Bungsee Baooree, Mussummaut Jooee, a married

woman, claimed that she had gone "to answer the calls of nature" when she was
seized by Bungsee Baooree and forcibly raped. Eyewitnesses saw Jooee resisting
as Bungsee Baooree pulled at her clothes "in the very act of having carnal know
edge of the woman." Bungsee Baooree "quitted the woman" when he saw the eye
witnesses and begged them "to keep the matter secret." Jooee "walked away
evidently abashed, and apparently crying, though they did not hear her voice."
At the thana, Bungsee Baooree claimed that he had consensual sexual intercourse
with Jooee, confessing to an adulterous encounter but not to rape. Although th
Nizamut Adalat law officers recommended convicting Bungsee Baooree of rape,
the judges changed the charge to adultery and acquitted the defendant of rape
(NAR 1824, vol. 2). In Deendyal v. Bhyrub Chunder Tellee, a fifteen-year-old
married girl complained that Bhyrub Chunder Tellee broke into her hous
"and finding her alone seized hold of her." When she screamed out, he stuffed
a piece of cloth into her mouth, dragged her to a hut, threw her to the ground
and raped her, threatening to kill her if she made any sound. Several male wit-
nesses who heard the girls cries rushed to the hut and witnessed the defendant
in the act of rape. Denying the law officers' recommendation to convict, th
Nizamut Adalat judges found that they did not "consider the evidence conclusiv
as to the fact" and suggested instead that "it may be admitted to substantiate tha
of adultery" (NAR 1831, vol. 4).
In 1839, Nizamut Adalat judge R. H. Rattray condemned the legal reasoning
that made adultery a "lesser form" of rape. In Government v. Sirdar Shookl, an
Duhoree, Nuckched, Bhola and Jogha, the Court found that a woman who
screamed and attracted eyewitnesses as she was thrown down and raped by
group of men had not produced enough evidence to support a charge of rape
Judge Dick suggested that the charge be changed to adultery: "Had th
woman earnestly resisted, the assistance of the boys would not have been effec-
tual; moreover an instant complaint would have been made at the thana or before
the Magistrate." Judge Rattray issued a sharp retort to this proposal:
With reference to Mr. Dick s conviction of the prisoner Sirkar Shookl of

"adultery," I may observe that adultery cannot be considered as a lesser
grade of rape. As well might a person to whom the door has been opened,
and who is afterwards discovered misbehaving towards the owner of the
house, be convicted of burglary. Such a charge would not, under such cir-
cumstances, be preferred; and could not, if preferred, be maintained;
and as little, I should say, could a conviction of the misdemeanor follow
an arraignment for the burglary. In the present case, the charge is
rape (burglary) and my idea is that adultery (the act "contra bonos
mores" of Mr. Courtney Smith) is altogether a distinct offense; which
too, in this instance, has never been pleaded to; and to which, under
the Regulations, can only be prosecuted for by the husband.

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The prisoners were acquitted (NAR 1839, vol. 5).

In early colonial India, as elsewhere in the British Empire, the institutional
treatment of rape was contradictory: in theory, it was harshly punished by law,
but in practice, assumptions about female mendacity prompted a rigorous
interrogation of their claims in court (Block 2006). The Nizamut Adalat judges
generally emphasized the importance of protecting defendants against false
charges and almost invariably expressed doubts about the credibility of female
complainants. To substantiate a victim s claim, they sought direct or corroborative
evidence no matter the age of the alleged victim.
Proof of physical violence is one form of evidence that could have an effect on
verdicts. In Cashee v. Poorye Lode, a midwife was brought in to examine the
"lacerated state" of a seven-year-old girl who was raped and left to die in a
ditch in a pool of her own blood. Citing the physical evidence, the Court con-
victed the defendant and sentenced him to ten years in prison (NAR 1823, vol.
2). In Kureem Noorbafv. Meeun Noorbaf, the decision to convict a ten-year-old
boy accused of raping a three-year-old girl turned on the medical testimony of the
civil surgeon (NAR 1827, vol. 3).
In the early colonial period, however, medical evidence did not trump all
other forms of evidence as it would in late nineteenth-century England and
India (Edwards 1981; Kolsky 2010). In fact, if there was no other evidence to cor-
roborate proof of physical violence, the Court tended to acquit. In Mussummaut
Buman v. Sheikh Meerun, ten-year-old Kulmee claimed she was raped by Sheikh
Meerun in front of her friend Luchmunia. During the alleged attack, Luchmunia
ran to her village to summon Kulmee s brother. He and others found Kulmee "in
a state which unequivocally demonstrated the treatment she had received."
Although the Court made note of the physical evidence on the "body of the
ravished girl," the defendant was acquitted because there was "no circumstantial
evidence corroborative of the charge" (NAR 1823, vol. 2). In Sheo Lai against Rai
Singh, a twelve-year-old girl who was both deaf and mute alleged that she was
raped. The girl was physically examined by her mother and "other witnesses
considered to be skillful in those matters" who testified that it was "clear that
violation had been perpetrated from the appearance of the parts." Despite the
convincing physical evidence, the Court acquitted Rai Singh because the girls
testimony was not taken under oath (NAR 1827, vol. 2).
Rape on Trial in the Nizamut Adalat, 1851-57
The Nizamut Adalat reviewed sixty-nine rape cases from 1851 to 1857 (see
table 2). Given the distinctly different nature of the data - the published
records from 1805 to 1850 represent selected cases reviewed by the Court,
whereas the published records from 1851 to 1857 represent all cases reviewed
by the Court - it makes little sense to make statistical comparisons. More

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202.41.10.108 on Mon, 25 Sep 2023 05:33:41 +00:00
importantly, the numbers only tell part of the story. What is not reflected in
tabular account of the case law is the significant shift in the character and
nature of trials after 1850, when new evidentiary requirements took on increasin
importance to the determination of guilt and innocence. The growing insistence
on alternative forms of evidence to verify a woman's charge accompanied th
rationalization and modernization of law, raising important questions about the
gendered consequences of colonial modernity.
In cases after 1850, the Nizamut Adalat increasingly focused on the caste
tribe, strength, attractiveness, and supposed intelligence and respectability of
female victims to determine the probability of a rape having occurred. Because
of the fundamental suspicion of women's claims, women were positioned b
the courts in a dual role as complainants (charging rape) and defendants (dispel-
ling the presumption of consent) (Estrich 1987). Susan Brownmiller argues that
the pressure on rape victims to prove nonconsent is unique to sex crimes:
Under rules of law, victims of robbery and assault are not required to prove
they resisted, or that they didn't consent, or that the act was accomplished
with sufficient force, or sufficient threat of force, to overcome their will,
because the law presumes it highly unlikely that a person willingly gives
away money, except to a charity or to a favorite cause, and the law pre-
sumes that no person willingly submits to a brutal beating and the inflic-
tion of bodily harm and permanent damage. But victims of rape and other
forms of sexual assault do need to prove these evidentiary requirements -
that they resisted, that they didn't consent, that their will was overcome by
overwhelming force and fear - because the law has never been able to sat-
isfactorily distinguish an act of mutually desired sexual union from an act
of forced, criminal sexual aggression. (1975, 384)
Brownmiller's insights offer a useful lens through which to view the Nizamut
Adalat case law and the supposition of consent that informed legal decision
making in mid-nineteenth century India. In trial after trial, the judges focused
on the looks, size, and social status of the victim as factors relevant to determinin
the likelihood of whether she could have been raped by the defendant(s).
From the Court's perspective, the likelihood of a woman having been raped
often began with a consideration of her "comeliness." In Government and Mus-
summaut Monee v. Jeenaram, the examining physician described the victim as
"comely and extremely simple in her demeanor. She is unmarried" (NAR 1853,
vol. 3). In Meessonkyoung and Government v. Gnayen, the thirty-year-ol
married victim was described as "not of prepossessing appearance" (NAR
1855, vol. 5). In Government v. Kaloo Chung, Sham Chung, Buddun Shah,
and Haroo Chung, the victim was depicted as "a widow, of rather pleasing appear-
ance but not young" (NAR 1853, vol. 3). In Dokuree Kulloo v. Rapo Chung, th
victim was described as an "interesting looking girl" of "good character"; the pris
oner, "quite a youth, of a low caste, with a large head" (NAR 1851, vol. 1). In th

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statutory law, a female s physical appearance, marital status, and demeanor had
no legal relevance or standing. The emphasis placed on these issues in court
effectively shifted the focus from what had actually happened in a particular
case to a more abstract consideration of whether the complainant was either a
likely victim of an attack or a credible witness.
The strength and stature of complainants and defendants were also con-
sidered by the Court in determining the abstract likelihood of a defendant
being able to overwhelm his victim by force. Again, rather than determining
whether a crime had actually occurred based on the evidence presented, the
trial was oriented toward ascertaining whether it could have occurred based on
supposedly objective physical indicators. In Bholat, Mussummaut Bheknee and
Government v. Bhowkee, Mussummaut Bheknee alleged that she was eating
lunch with her younger sister when the defendant came up behind her, carried
her off to a ditch, and raped her. Bheknee struggled and screamed, and a
number of witnesses came to the scene. The Bhaugulpore Sessions Court
judge described Bheknee as "a very slight, and rather comely girl, about
sixteen years of age, of the Koonrin caste (Mahomedan) some time married,
but not then living with her husband." Despite testimony from five eyewitnesses,
the Court deliberated about the abstract feasibility of a rape having occurred,
describing the defendant as "a stout truculent looking man of about forty, well
able to carry off Bheknee in his arms, notwithstanding any struggling on her
part." Partly because the Court was convinced that Bhowkee s physical strength
made rape theoretically possible - "a stout truculent looking man" could presum-
ably overwhelm "a very slight, and rather comely girl" - Bhowkee was convicted
(NAR 1852, vol. 2).
In Zummenah Mussulmanee v. Sheikh Nujjeeboolah, a thirteen-year-old girl
claimed she was sleeping alone at home when a man tied her up, gagged her,
carried her off to a ditch, and raped her. Pulling the gag from her mouth, the
girl yelled out to the gardener who saw both the defendant running off and
the girl lying naked in the ditch. Two days later, the civil surgeon examined the
girl and concluded that although her body displayed no marks of violence, she
had recently had intercourse for the first time. The Nizamut Adalat decided
that the evidence of rape was clear: "The prisoner is very tall, but he is not
stout in proportion to his height. He is however much stronger than the general-
ity of Bengalees and could easily carry the prosecutrix in his arms; and I find him
guilty of the crime with which he is charged." The defendant was convicted (NAR
1852, vol. 2).
Conversely, in Mussummaut Bhugeea v. Bhageenuth, although there were
three eyewitnesses who saw the "parties in a position which led to the belief
that criminal connection had taken place," the Sarun Sessions Court judge dis-
agreed with the law officers recommendation to convict. Focusing on the pre-
sumed strength of the victim and the absence of physical marks of violence to
corroborate her claim, the judge decided that the woman's charge was false:

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The man and woman are about the same age, and nearly of equal
strength. It is, therefore, unreasonable to suppose that he could have
effected his object against her wishes. Moreover, had she in truth
resisted, or had any violence been used on his part, it is probable that
some marks or scratches, or torn clothes would have been exhibited in
corroboration. The mans story is, that she was a willing patient, and
this I consider to be the truth, and that the woman only called out
when she saw others approach, in order to screen her own guilt, and
to afford a pretext for her own misconduct before her neighbours, and
her own injured husband.
The Nizamut Adalat concurred, and Bhageenuth was acquitted (NAR 1851,
vol. 1).
In Mussummaut Guyah v. Devah Jowrah, Mussummaut Guyah claimed she
was raped in her home by Devah Jowrah. Jowrah denied the charge and insisted
that if he had used force to have intercourse with Guyah, she would have called
out for assistance and marks of violence would have been found on her body. The
law officers in the Sessions Court moved to convict, but the judge disagreed,
reasoning that it was impossible for a healthy twenty-year-old woman to be
raped by a drunk man: "The evidence throughout shows the prisoner to have
been intoxicated at the time, and the prosecutrix is a woman of twenty years of
age, full of health and strength, and with free liberty of limbs at the time, in
my opinion, the crime alleged could not have been committed against the prose-
cutrix s will and consent." The Nizamut Adalat concurred, and the prisoner was
acquitted (NAR 1851, vol. 1).
The determinations made by the British judges about the possibility of a rape
having occurred were often based on colonial knowledge about Indian commu-
nities, indicating the legal implications of colonial discourse. In Mussummaut
Chundeea v. Jhotee Roy, the victim, a member of a hill tribe, was walking
home from the market with a friend when the defendant, a Rajpoot, came up
behind her, threw her to ground, gagged her, and raped her. The Sessions
Court jury acquitted the defendant on account because there was only one eye-
witness and no corroborating testimony. However, the Sessions Court judge
found one eyewitness sufficient to convict and referred the case to the
Nizamut Adalat. The Nizamut Adalat judges cited a number of factors in their
decision to convict. These included the victim s prompt lodging of a complaint;
the observation that the woman was "young looking, for her age (sixteen),
small, but well made, comely for her class, intelligent and very collected, and dis-
tinct in her testimony . . . The husband, a smart young hill man of twenty or
twenty-two, gives his wife an excellent general character. They have been
married, it seems, a year, and have always lived together on good terms, have
no family as yet, but said the girl, if it 'pleases God, I shall have a child some
day/"; and the notion that "hill people generally speak the truth." The defendant

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was convicted and sentenced to seven years in prison with labor and irons (NAR
1852, vol. 2).
Questions about character and "respectability" were also extremely important
to proving a female s credibility as a victim and as a witness. The weight placed o
respectability pertained mostly to cases involving nonvirginal or "unchaste
women, as they constituted the most suspect class of victims. This emphasis on char-
acter and conduct placed a woman's behavior prior to, during, and after an alleged
rape on trial. Even in court, her conduct was deemed pertinent to the truth or falsity
of her charge. In Government and another v. Ramdoolall Deo and Guneshsham
Surrnah, the Sessions Court judge explicitly stated that "[t]he demeanor of
female giving evidence in a case of this nature is a matter of some importance in esti-
mating the degree of confidence to which her statements are entitled" (NAR 1857
vol. 3). When the case reached the Nizamut Adalat, Judge D. I. Money (directly
paraphrasing Hale) remarked,
There are no cases so difficult to decide, in this country especially, where

false charges are constantly made, and so easily proved, as charges of
rape. It is the more necessary to examine with extreme care the
account which the woman herself gives of all the particulars of the
outrage, and ascertain how far it is borne out by the statements of
other witnesses and all the circumstances of the case. Upon her testi-
mony mainly the Court is obliged to depend for disclosures regarding
the degree and extent of the violence that has been used. The credibility
of her testimony would depend in a great measure upon the character
she has borne . . . Considering the aversion which a modest woman
would naturally feel to publish her disgrace, and the wish, with the pro-
spect of loss of caste before her, to conceal it, no time appears to have
been lost in giving information to her relatives and the police. This of
itself lessens the probability that the case, whatever grounds there may
be for suspicion, was a got-up one.
That a woman's behavior in court was taken as an indicator of her virtuousness

and integrity (and therefore the possibility that she was raped) reveals the perfor
mative nature of the colonial courtroom. How a complainant literally acted
during a trial had a tangible impact on verdicts. In Government and Srimuthee
Jumal Bihi v. Heeramun Borrooah, an eight-year-old girl's "air and manner o
innocence" convinced the Sessions Court judge to accept the testimony of th
girl even though it was not given under oath (NAR 1856, vol. 6). In Government
and Nobin Goivallah v. Kullian Baoree, the victim was empathetically described
as "a very intelligent child, [who] suffered from much shame, and seemed to be
filled with great indignation against the prisoner" (NAR 1853, vol. 3). In Mussum-
maut Arjoo v. Amiruddee, a young widows allegation of rape was accepted
because "[t]he prosecutrix, a modest and diffident woman, alluded to what liad
occurred with evident pain and shame, and in my opinion strove to render the

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amount of injury she had sustained much less than it really was. . . . The prosecu-
trix has the character, and to all appearances justly, of being a virtuous woman"
(NAR 1852, vol. 2).
A compelling court performance by the least credible of all victims - married
women - could even sway a suspicious bench. In Government and Another v.
Nilmoni Doss, Mohun Doss, Mohun Doss Ramgutti Doss, and Joogul Doss, the
married prosecutrix claimed that she was home alone when a group of men
broke in, abducted her, and violently gang raped her. The Jessore Sessions
Court judge observed that the "honest and unoffending woman" delivered her
testimony "with calmness, and with that degree of modesty, which a respectable
woman, on whose character there has never been any imputation of levity, might
be expected to display" (NAR 1852, vol. 2). In Government and Mussumut Adree
v. Sheoperson Roy and Bhunjun Roy, the Court found rape "fully proved," in
part, because the victim was "overpowered with affliction throughout the pro-
ceedings and her manner and deportment strongly attested the truth of her state-
ment" (NAR 1854, vol. 4).
Caste and class were also important avenues of judicial inquiry, although
British jurists were inconsistent in their assumptions about the relationship
between social status, sexual licentiousness, and criminality. In Puttoo v.
Dhonie Sirdar, the Sessions Court judge commented negatively on what he gen-
erally referred to as "the character of the women of the lower orders in this
country." In his decision, the judge reasoned, "the probability to me is that the
prisoner, a good-looking young man, was detected in adultery with the prosecu-
trix, and that it has been converted by his enemies, with consent of the prosecu-
trix s relations, into a case of rape." One of the Nizamut Adalat judges disagreed
with the acquittal, observing that: "the prisoner is represented to be a disreputa-
ble violent character, and the prosecutrix is, on the contrary, a respectable
woman: the Sessions Court Judge does not question the fact, but adverting to
the character of the lower class of women in Bengal, he thinks, that as the pris-
oner is a good-looking man, it is more probable the act took place with the
woman's consent." Still, the prisoner was acquitted (NAR 1852, vol. 2).
Conversely, in Government and Radhakisno Jullia v. Afihar Alii and Mohe-
zuddeen, the Tipperah Sessions Court judge explicitly expressed his sympathy
for the victim because of her low caste status. The case involved "a young and
rather well-looking woman of twenty years of age," a fisherwoman about
whom the judge observed, "The class to which the pair belongs is regarded super-
ciliously in this part of the country, and the women are frequently the subject of
impertinence which would not be ventured on in instances of females of a better
caste. It is, I fancy, with reference to this fact that the Committing Officer has
observed in his abstract of the grounds of commitment that 'the idea of the
rape of a fisherwoman is a less heinous offence than the rape of any other case
is erroneous/" The judge continued to remark on the "humble position" of the
woman and her increased susceptibility to social and sexual abuse:

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The witnesses were consistent in speaking of the prosecutor s wife as a

well-conducted woman, in whose character no imputation of levity or
indiscretion rests. Their testimony with regard to the estimate in which
the prisoners are held was less favorable. Forming my own judgment
of the woman from her appearance, demeanor, and mode of narrating
the wrong done to her, I am certainly disposed to regard her as a
decent and modest woman, of comely appearance. The circumstances
of her humble position in life, and liability to insult consequent on her
carrying fish to market for sale, strengthen rather than lessen her title
to protection under the laws common in their application to all classes.
It is an undoubted fact in this part of the country at least, that the
men of low caste and following pursuits calling them much from
home, such as beggars, fishermen, and others, are regarded as fair sub-
jects for insult and are the general victims in cases of violation. (NAR
1858, vol. 8)
In addition to the emphasis on physical size, strength, and character, great

attention was paid by the Nizamut Adalat to evidence of fresh complaint. Hale
reasoned that without the prompt lodging of a charge, "it carries a presumption
that her suit is but malicious and feigned" (1736, sec. 633). In Government and
Gorobinee Chassin v. Bykunt Gope, the Nizamut Adalat observed that "one o
the most essential points in a case of this kind" is "prompt and early complaint"
(NAR 1853, vol. 3). Two years later, they reiterated this point: "Promptitude in
complaining is so obviously important in supporting a charge of this nature."5
The emphasis on fresh complaint was based on the presumption that the
victim s testimony was suspect and required material corroboration. Any delay
in the reporting of a rape cast a cloud of suspicion over the complainant s credi-
bility. These assumptions, unfounded everywhere, were particularly out of place
in colonial India, where the social and cultural pressures on women not to lodge
rape complaint were so high. In Government and Lallchand v. Lulit Rae, the
Nizamut Adalat cited the victim s prompt and immediate complaint as giving
them "no reason to doubt the truth of the charge" (NAR 1855, vol. 5). On th
other hand, in Mussumaut Lugnee and Government v. Sumput Pandy, failure
to complain promptly outweighed all other evidence (the victim filed the
charge five days after she was raped) (NAR 1854, vol. 4). In Oolasee Mahotane
v. Bodhun Ragwar and Nußer Ragwar, the victim alleged that she was gang
raped. The one eyewitness to the crime testified that he advised her to
"conceal the matter and avoid disgrace." However, the woman promptly
lodged a complaint, and the Court convicted the defendant, noting that "[t]he
prosecutrix appears to be a well-conducted woman [whose] complaint was
made immediately after the fact" (NAR 1851, vol. 1).
5Government and Mussummaut Noijan Tara v. Saber Sheikh (NAR 1855, vol. 5).

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1112 EÜzabeth Kolsky
Probably the most significant new feature of rape cases after 1850 was the
growing importance placed on medical evidence. Not only was medical evidence
introduced in court more frequently, it also became increasingly consequential to
trial outcomes. Like fresh complaint, the presence and absence of medical evi-
dence both had discernable effects on legal decisions. Proof of physical violence
to the victim s body offered evidence of nonconsent and corroborated the vera-
city of a charge, whereas the absence of physical violence shored up the assump-
tion of a false charge.
In the 1850s, the Nizamut Adalat judges repeatedly cited the decisive role
played by medical evidence. In Government v. Azeez-oo-Rahaman, the victim s
family alleged that they attended defendant Azeez-oo-Rahaman's house for
dinner. During the course of the evening, the mother of the girl found her
crying on a bed in the inner verandah of the house. When they returned
home, the girl claimed that Azeez-oo-Rahaman had raped her. Finding blood
on her child, the girls mother immediately filed a charge with the police. The
following day, the girl was taken for examination to the subassistant surgeon,
who confirmed that the girl had recently been violated. The Nizamut Adalat con-
victed the defendant and commented on the "utmost importance" of the medical
evidence: "The Court have much gratification in recording their high approba-
tion of the zeal and alertness displayed by the darogah in immediately sending
the child to be examined by the surgeon, and of the very careful manner
which Mr. A. Thomas, the sub-assistant surgeon, performed his duty, which
enabled him to give evidence of the utmost importance, and render abortive
attempts to tamper with the child" (NAR 1851, vol. 1).
Medical evidence was so critical that on several occasions, the Court chas-
tised the local authorities for not arranging prompt medical examinations, even
though it was not a formal requirement of law to do so. In Mussummaut
Kheriah and Government v. Choone Lall, the judges drew attention to "a remark-
able and unaccountable omission, on the part of the deputy magistrate, in not
having the unfortunate girl immediately examined by midwives, or the native
surgeon, to ascertain the fact of her having been injured as she and her aunt tes-
tified" (NAR 1854, vol. 4). In Government and Ramkishen Deo v. Kumuldyal
Singh, the Sessions Court judge commented on the failure of the police to
gather some proof of physical injury on the alleged victim: "It would have
been perhaps better had the magistrate ordered a sooruthal (police investigation
into a heinous crime), as some marks might have been found on the woman's
person showing she had struggled with the prisoner" (NAR 1854, vol. 4).
Medical evidence relieved the Court of the more complicated task of sifting
through oral evidence, which had long been perceived by colonial authorities to
be unreliable and untrustworthy (Kolsky 2009). Physical proof on the "body evi-
dencing the crime" conclusively established whether a rape had occurred and
practically allowed the Court to disregard women's testimony (Kolsky 2010). In
Government v. Bhoonreah Doss, the Court observed that the victim's statement

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was "borne out by the blood on her thighs" (NAR 1854, vol. 4). In Munohur Khan
v. Sheikh Panchoo, a fourteen-year-old boy was accused of raping an
eight-year-old girl. After the assault, the girl was examined by the assistant
surgeon, who testified that she had been violated. The judges specifically cited
the medical evidence as the decisive piece of proof: "The violation of her
person is proved by the evidence of the assistant surgeon" (NAR 1851, vol. 1)
In Mussummaut Puburnee v. Ramkishoon, the judges commented that the
medical testimony "speaks clearly as to the actual commission of the crime."
That the girl herself spoke clearly about the commission of the crime was not
noted (NAR 1852, vol. 2). In Government and Zuhoorun Mooselmanee v.
Amanut Amnoo Khan, the judges held that "[t]he evidence of the civil surgeon
and of others leaves no doubt of a brutal rape having been committed" (NAR
1857, vol. 7).
Where there was no medical evidence, there was effectively no case. In Gov-
ernment v. Azim Kaneegur, Moniroodin Sheikh, and Doogoo Sheikh,
fourteen-year-old girl alleged she was gang raped by the defendants. In thei
acquittal, the Nizamut Adalat judges observed that the only direct evidence pre-
sented by the prosecution was the girls testimony, which was "presumptive," and
that "no examination of her person to test the truth of this was made" (NAR 1852,
vol. 2). In Phelanee Bewah v. Fuqueerah Nusha, sl seven-year-old girl claimed that
her neighbor had raped her. The girls mother, as the Court observed, did no
"examine the child's pudendum, as to whether it had been lacerated or not, or
whether the clothes had been blood-stained, &c." When a medical officer exam-
ined the girl eleven days later, he found no marks of violence, no rupture of her
hymen, and no swelling. Citing the absence of medical corroboration and the late
report lodged with the police, the Nizamut Adalat acquitted the defendant:
"Indeed no reliance can safely be placed on the evidence, with reference to
the delay which took place in bringing forward the complaint at the thana and
to the facts established by the medical officers deposition" (NAR 1852, vol. 2).
In Jamil Johan v. Sheikh Fareed, a young girl under the age of ten claimed
that she was raped by the defendant. Bystanders who heard the girl crying wit-
nessed the man in the act of rape, causing him to flee. According to the eyewit-
ness, the girl was "lying insensible and bleeding much." During the trial, the
defendant introduced into evidence the fact that the girl had been examined
by a doctor, who found that she had not been violated. The judge acquitted
the man based on the presumption of the girls "innocent consent": "There is
no direct evidence, excepting that of the girl herself, as to the degree of force
used, and there is no proof of external injury from which great violence could
be inferred. On the contrary, it seems probable that the girl may have given an
innocent consent. The prisoner is a tall and powerful young man, 17 or 18
years of age, the girl, whose age is perhaps between 8 and 9 years, it being var-
iously stated from 7 to 10 years, is diminutive for the least age assigned, s
that any trial of strength was unlikely; the girl would yield where she could no

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resist/' Because of her age, consent was immaterial and the prisoner was con-
victed. Nonetheless, the case provides a striking example of the importance
placed on physical injury as evidence of nonconsent (NAR 1851, vol. 1).
Conclusion
Britons in India gestured with horror and disdain at the backwardness and
barbarity of Islamic criminal law, specifically condemning the strict evidenti
requirements that made a rape conviction almost impossible. Colonial le
reforms promised to replace the inhumane and irregular Islamic law wit
just and orderly rule of law. Although the hollowness of these humanitar
claims has been insightfully examined by historians of colonial criminal
(Fisch 1983; Singha 1998), the gendered impact of these reforms has not b
as carefully considered.
The cases of rape considered by the Nizamut Adalat in the first half of th
nineteenth century cast a shadowy light on the colonial critique of the Islami
criminal law. The gradual dismissal of the Islamic criminal law and the declini
power of the Islamic officers did not widen the path of legal redress to victim
sexual violence in colonial India. Although the letter of the British and Islami
laws of rape differed, in practice, they functioned very similarly. For examp
both discounted the evidentiary value of a victim s claim. Whereas the Islami
law required four male eyewitnesses to penetration to verify the truth of a co
plaint, the colonial judiciary looked for other forms of corroborating evidenc
such as fresh complaint and proof of physical injury. British judges in t
Nizamut Adalat inferred from a victims caste, character, and comeliness
theoretical likelihood of whether she consented to intercourse and, if n
whether forced intercourse was possible. The credibility of the complain
and her charge were proven by her behavior in court, by the lodging o
prompt charge, by the presence of physical signs of violence, and by colo
knowledge about her caste, region, and class. Thus, while new keys to convict
emerged, women continued to be viewed in the British colonial system a
special class of witnesses to whom special standards of truth applied.
When we compare the views of colonial judges in India to those of their co
temporaries in England and elsewhere in the British Empire, we find striking
similarities. We find an overwhelming emphasis placed on the protection
female chastity and a tendency to prosecute and punish more harshly in case
involving girls. We see central importance being given to proof of nonconsen
and marks of physical injury to the body as crucial evidence of nonconsent. W
see rape paradoxically being viewed as a heinous crime, but one that wa
rarely prosecuted or punished successfully (Block 2006). We see the power
define and verify rape increasingly becoming part of the expert s prese
(Clark 1987). We find the testimony of victims - already discouraged by socia

202.41.10.108 on Mon, 25 Sep 2023 05:33:41 +00:00
and cultural pressures to speak out in court - being displaced by emerging legal
and medical discourses about "the lying, imagining, hysterical, and malicious rape
complainant" (Edwards 1981, 126). These similarities might not be surprisin
were it not for the fact that the status of Indian women served as a primary reg
ister of difference in the Indian colonial context. And difference was the very
thing that made India available for British rule (Chatterjee 1993).
The cases considered in this article were decided during the "Age of Reform
(1828-56), a period when English Utilitarians and liberal reformers dominate
the colonial administration with their theories about how Indian society could
be uplifted through the establishment of good laws and the abandonment o
evil customs. Hailing the promise of modernity, the liberal colonial state
enacted legislation to uplift the status of Indian women, abolishing sati and
expanding the marital rights of Hindu widows (Carroll 1989; Mani 1989). Th
"woman question" remained a critical one throughout the colonial period
(Sarkar and Sarkar 2008). However, for all of the racial and cultural stereotypes
that shaped the colonial encounter, many of which are apparent in the trials ana-
lyzed here, rape was treated by colonial authorities as a culturally common rather
than a culturally specific crime. In rape trials, cross-cultural assumptions about
male and female sexual behavior prevailed and Indian women, cast by libera
reformers as victims of Indian men and Indian culture, were meted out a
rather illiberal form of justice. Considering the many ways in which colonia
difference was articulated in gendered terms, these trials remind us that la
was not always a mechanism mobilized by white men to save brown women
from brown men (Spivak 1988). When it came to adjudicating rape in early colo-
nial India, it was the rule of colonial indifference, rather than the rule of colonia
difference, that prevailed.
Acknowledgments
The author wishes to thank Jeffrey Wasserstrom and the journals anonymous
reviewers for their excellent suggestions on this essay.
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The Rule of Colonial Indifference - Rape On Trial in Early Colonial India, 1805-57

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