On 19 March 1891, the Governor General in Council in India, Lord Lansdowne, passed the Age of Consent Act or Act X. The Act amended Section 375 of the Indian Penal Code of 1860 by raising the age of consent of all girls, married and unmarried, from ten to twelve in all jurisdictions, its violation subject to criminal prosecutions as rape.
The Act was one of the most controversial laws passed for the benefit of women in colonial India. It was advocated by a section of Indian intelligentsia and, at the same time, opposed by many. The opponents of the Act considered it an unwarranted intervention in the intimate sphere of conjugality.
The issue of ‘age of consent’ – the age at which a woman is considered eligible to give consent to sexual intercourse – had entered legal discourse in India with the promulgation of the Indian Penal Code in 1860. Article 375 of the said Code defined the various circumstances under which sexual intercourse would be considered rape. One of the circumstances was the act of sexual intercourse with a woman ‘with or without her consent, when she is under ten years of age’. The exception to this section stated that ‘sexual intercourse by a man with his own wife, the wife not being under ten years of age, is not rape’. The implication was that if a wife was below the age of ten, her husband’s act of sexual intercourse would be considered rape. The age of consent was thus fixed at ten and so was the age under the exception. The Act of 1891 redefined rape as an act of sexual intercourse with a woman, with or without her consent, when she was under twelve years of age. It also rewrote the exception, stating that sexual intercourse by a man with his own wife, the wife not being under twelve years of age, was not rape. By implication, sexual intercourse by a man with his wife under twelve years of age would be considered rape. It was precisely this revised age of exception that triggered a serious controversy. Neither the advocates nor the opponents of the Act were concerned about the implications of this Act for unmarried women. Those who pleaded for this Act were concerned about the bodily safety of married women. Those who opposed it were bothered about the sexual prerogative of husbands and the absolute and unquestionable right over their wives’ bodies that religion and custom had granted to them.
Opposition to the Act was reportedly the most vehement and aggressive in Bengal. While for the first time the initiative for reform came from outside Bengal, it was also for the first time that Bengal opposed reform.
The outcry against this Act in Bengal, it has been argued, signaled an outright rejection of reformism and a slideback to conservatism. Hindu revivalist nationalism, a cultural and ideological movement that burgeoned in Bengal in the 1880s, is believed to have reached its climax in 1891 with the backlash against the Age of Consent Act.[1] The torch bearers of this movement took pride in Hindu tradition and culture and opposed colonial intervention in these respects.
This paper does not question the historicity or magnitude of the Hindu revivalist opposition to the Act but seeks to point out that the historical discussions on the Age of Consent controversy in the context of Bengal have tended to focus predominantly on the hostility of the Hindu population. While emphasising the Hindu revivalist backlash, historians have overlooked the multiple arenas in which the issue of consent was debated in the Bengali milieu. The favourable stance of the Brahmo Samaj towards the Consent Act for instance, has not been adequately highlighted. The responses of the Muslim population to the Act remain equally neglected in existing historiography. My forays into contemporary newspapers and periodicals reveal that while a major section of the Muslim population expressed their resentment against this legal intervention and condemned it as an assault on Muslim religion and social norms, a small but significant section of the Muslim literati welcomed this Act.[2] My paper will foreground the reformist fervour of a section of Muslims and thus provide a more complicated and nuanced understanding of the societal reception of this Act in the Bengali milieu.
My research further reveals that Muslim women in Bengal were among the first to avail this legal instrument to redress acts of sexual violence perpetrated by spouses. Bengali women, several historians have noted, remained silent with regard to the consent issue whereas their Maharashtrian counterparts were vociferous advocates of an enhanced age of consent.[3] My paper will bring to light the agency of Bengali Muslim women and their urge to reap the benefits of the Act and will thus challenge existing notions about their passivity. The Indian Penal Code of 1860, whose amendment was endorsed by this Act, it may be clarified, was applicable to all communities, unlike the Act for the Abolition of Sati of 1829 and the Hindu Widows’ Remarriage Act of 1856 which were statutory interventions in Hindu personal law.
In 1891, the British government’s proposal for an enhancement of the age of consent was greeted with applause by the third Nawab of Dacca, Khwaja Ahsanullah (1846-1901). A gifted litterateur and a noted philanthropist, the Nawab was an ardent advocate of the Act. The Hitakari dated 11 February 1891 wrote:
The remarks of Nawab Khaja Ahsanulla Khan Bahadur on the Age of Consent Bill are fully worthy of acceptance. The Nawab is the Head of the Mussulman community, the leader of the East Bengal Mussulmans, and an ornament of the society to which he belongs.[4]
The Nawab did not have many supporters among the Muslim fraternity. The Hindoo Patriot dated 2.2. 1891 was keen to point out that even the Nawab had to admit that many Mussalmans were alarmed at the innovation and that among his co-religionists girls frequently attained puberty at 10 and 11.[5] The Nawab, however, had his brother-in-law, Yusuf Jan Miya, by his side. At a public meeting summoned in Dacca on 1 February 1891 to condemn the Age of Consent Bill, Yusuf Jan Miya protested against the motion and said that there could be no harm in marrying girls after 12. As soon as the pleader, Osmanuddin Saheb, it was reported, rose to point out the error, Yusuf Jan Miya left the meeting with three or four others. [6]
A vociferous champion of the Consent Act was the Mohammedan Literary Society. Founded by Nawab Abdul Latif in 1863 in Kolkata, the society set for itself the goal of encouraging English education among Muslim youth and urging the British government attend to the educational needs of the Muslim community of India. The society, newspaper reports indicate, played a key role in campaigning in favour of an enhanced age of consent. The Abdul Latif published a pamphlet entitled ‘A Practical View of the Consent Act for the Benefit of the Mahomedan Community in General’ to assure the Muslim community that the Bill did not affect Muslim religious practices. The pamphlet was written in the vernaculars of the country, and was freely circulated. The Society, it was reported, ‘advocated the cause of the supporters of the measures, thus hoping to win Mahomedan society to its cause’.[7]
After the Act came into effect, Muslim women in Bengal were among the first to use it to protect themselves against abusive husbands. The veiled Muslim woman, trapped within the interiors of the household, and subjected to the interlocking oppressions of patriarchy and community, was supposedly incapable of protest. Significantly, however, Muslim women in Bengal were among the first to deploy this Act for punishing men for their acts of sexual violence within marriage. The Dacca Prakash dated 3 January 1892, for instance, reported that one Darya Shekh was charged before the Magistrate of Mymensingh with having committed rape on his wife Bheki Bibi, a girl below the age of twelve. In the absence of satisfactory evidence of rape, the Magistrate found the accused guilty of having voluntarily caused grievous hurt.[8]
On 17 January 1892, the Dacca Prakash claimed that the Consent Act had begun to bear fruit. A Muslim woman of the Rupgunj Thana in the Dacca district charged her son-in-law with having committed rape upon her daughter who, she stated, was less than twelve years old. Upon medical examination the girl was pronounced to be much older than twelve, and the accused was discharged.[9] The above legal battles, though not quite successful, testify that Muslim women were emerging as actors and legally conscious agents who were keen to fight for justice in courts of law.
Conclusion
Historical scholarship on the social reform movement in Bengal has tended to focus primarily on reform engineered by Hindu high caste Hindu men for improving the conditions of high caste elite Hindu women. The lower castes and Muslim women figured neither in the scheme of things of the celebrated Bengali reformers nor in the scholarship of historians writing about the same. What was a limited Hindu high caste elite affair was seen as an integral and salutary aspect of the Bengal Renaissance. What was upheld in historiography as a Bengali phenomenon in effect, rested on a series of exclusions: the exclusion of lower castes, non-elites and non-Hindus, especially Muslims. The Hindu revivalist backlash against the Age of Consent Act has been harped upon as an index of not just the failure of the Act to strike ground in Bengal but also the overall decline of the women’s question in this region.[10] My paper questions such perspectives by pointing out, in the first place, that the Age of Consent Act was a legislative intervention by the colonial state that was for the first time intended for all religious communities including Muslims, and secondly, that the Act had some of its ardent advocates among Muslim men. Finally, this paper contests historical perspectives that perceived Bengali women as passive and silent beneficiaries of reform. The agency of Muslim women has especially been denied, with the stereotype of the veiled and muted Muslim woman dominating historical scholarship. This paper, by foregrounding a few instances of Muslim women deploying the Consent Act to redress sexual violence within marriages, foregrounds Muslim women as conscious actors seeking justice in the public domain and thus assuming control over their lives. My paper thus unmasks the exclusionary politics underpinning the production of historical knowledge with regard to the Age of Consent controversy and the overall reformist enterprise in colonial Bengal and offers a more integrative approach to the same.
[1] See Tanika Sarkar, ‘Rhetoric against Age of Consent: Resisting Colonial Reason and Death of a Child Wife’, Economic and Political Weekly, 4 September 1993; ‘Hindu Conjugality and Nationalism in Late Nineteenth Century Bengal’, in Indian Women: Myth and Reality, (ed.), Jasodhara Bagchi, (Hyderabad, Sangam Books, 1995), pp. 98-115.
[2] See Mrinalini Sinha, ‘Potent Protests’, Mrinalini Sinha, ‘Potent Protests: The Age of Consent Controversy, 1891’ in Handbook of Gender, (ed.) Raka Ray, (New Delhi: OUP, 2012), p. 227.
[3] Meredith Borthwick, ‘The Bhadramahila and Changing Conjugal Relations in Bengal’, in Women in India and Nepal, (eds.), M. Allen and S. N. Mukherjee (Canberra, 1982), p. 116; Padma Anagol, The Emergence of Feminism in India, 1850-1920 (New York: Routledge, 2005), p. 15.
[4] Hitakari, 11 January 1891, Report of Native Papers, week ending 21 February 1891.
[5] Hindoo Patriot, 2 February 1891.
[6] Shakti, 3 February 1891, Report of Native Papers, week ending 14 February 1891.
[7] Sudhakar, 10 July, 1891, Report of Native Papers, week ending 18 July 1891.
[8] Dacca Prakash, 3 January 1892, Report of Native Papers, week ending 9 January 1892.
[9] Dacca Prakash, 17 January 1892, Report of Native Papers, week ending 23 January 1892.
[10] See Partha Chatterjee, ‘The Nationalist Resolution of the Women’s Question’ in Recasting Women: Essays in Colonial History (eds.), K. Sangari and S. Vaid (New Delhi: Kali for Women, 1990), pp. 233-253. Also see Aparna Bandyopadhyay, ‘Revisiting the Women’s Question in Late Colonial Bengal’ in The Other Universe: An Anthology of Women’s Studies (eds.), Aparna Bandyopadhyay and Krishna Dasgupta, (Kolkata; Setu Prakashani, 2015), pp. 286-306.