Governing Conjugality: Social Hygiene and The Doctrine of Restitution of Conjugal Rights in England and India in the Nineteenth Century

Abstract

This article focuses on the doctrine of restitution of conjugal rights (RCR) as a colonial legal transplant and examines how ideas of social and moral hygiene manifested in the debates around the doctrine in late-nineteenth century England and India. Originating in ecclesiastical law, the doctrine of RCR provides remedies and sanctions for the deserted spouse when one party has violated the obligation to cohabit as husband and wife. Through a critical examination of the history and application of the doctrine, the article traces the specific ways in which such suits developed and became rooted in Hindu, Parsi and Muslim marital law in India, while simultaneously falling out of favour in England. It places the doctrine in the context of changing ideas of marriage and argues that social hygiene became the tool through which the doctrine was both resisted in England and lauded in colonial India.

Notes

1 Alison Bashford, Imperial Hygiene: A Critical History of Colonialism, Nationalism and Public Health Sex (Palgrave Macmillan 2004).

2 Sparked by a damning report by Edwin Chadwick, Report on the Sanitary Condition of the Labouring Population of Great Britain (1842), <https://babel.hathitrust.org/cgi/pt?id=uc2.ark:/13960/t2k64mf5w&view=1up&seq=8>

3 Bashford above note 1 at 5.

4 Nancy Tomes, ‘The Private Side of Public Health: Sanitary Science, Domestic Hygiene, and the Germ Theory, 1870–1900’ (1990) 64 Bulletin of the History of Medicine 509.

5 Havelock Ellis, The task of social hygiene (Constable & Co 1927).

6 Bashford above note 1 at 5.

7 Stephen Legg, Prostitution and the Ends of Empire: Scale, Governmentalities, and Interwar India (Duke University Press 2014) 174–175.

8 Partha Chatterjee, ‘Colonialism, Nationalism, and the Colonialized Women: The Contest in India’ (1989) 16(4) American Ethnologist 622; Mrinalini Sinha, Colonial Masculinity: The ‘Manly Englishman’ and the ‘Effeminate Bengali’ in the Late Nineteenth Century (Manchester University Press, 1995); Lata Mani, Contentious Traditions: The Debate on Sati in Colonial India (University of California Press, 1998); Tanika Sarkar, Hindu Wife, Hindu Nation: Community, Religion and Cultural Nationalism (Permanent Black, 6th impression, 2017).

9 Sarah Hodges, ‘Towards a history of reproduction in modern India’ in Sarah Hodges (ed) Reproductive Health in India: History, Politics, Controversies (Orient Longman 2006) at 1.

10 For a discussion see Mrinalini Sinha, Specters of Mother India: The Global Restructuring of an Empire (Duke University Press 2007).

11 Pratapchandra Majumdar, Stricharitra (Nababidhan 1891) cited in Sujata Mukherjee, Gender, Medicine and Society in Colonial India: Women’s Health Care in Nineteenth- and early Twentieth- Century Bengal (OUP 2017) 102.

12 Ashwini Tambe, Codes of Misconduct: Regulating Prostitution in Late Colonial Bombay (University of Minnesota Press, 2009) 15.

13 This came to be a central theme of the coterminous debate on age of consent in India, which eventually led to the raising of the age of consent for girls in the country from 10 to 12 through the Age of Consent Act 1891. For instance, see Ishita Pande, Medicine, Race and Liberalism in British Bengal: Symptoms of Empire (Routledge 2010); Antoinette Burton, ‘From Child Bride to “Hindoo Lady”: Rukhmabai and the Debate on Sexual Respectability in Imperial Britain’ (1998) 103(4) The American Historical Review 1119–1146; Padma Anagol-McGinn, ‘The Age of Consent Act (1891) Reconsidered: Women’s perspectives and participation in the child marriage controversy in India’ (1992) 12(2) South Asia Research 100.

14 Philippa Levine, Prostitution, Race and Politics: Policing Venereal Disease in the British Empire (Routledge 2003); Philip Howell, Geographies of Prostitution: Policing Prostitution in Nineteenth-Century Britain and Empire (Cambridge University Press 2004); Stephen Legg, ‘Stimulation, Segregation and Scandal: Geographies of Prostitution Regulation in British India, between Registration (1888) and Suppression (1923)’ (2012) 46(6) Modern Asian Studies 1459; for a discussion of the Indian ‘prostitute’ also see Durba Mitra, Indian Sex Life: Sexuality and the Colonial Origins of Modern Social Thought (Princeton University Press 2020).

15 Mona Caird, The Morality of Marriage and Other Essays on the Status and Destiny of Women (G. Redway 1897).

16 Mitra above note 14, especially see ch 2.

17 Levine at above note 14.

18 Kristin Luker, ‘Sex, Social Hygiene, and the State: The Double-Edged Sword of Social Reform’ (1998) 27(5) Theory and Society 601.

19 Josephine Butler, ‘The Double Standard of Morality,’ The Philanthropist (October, 1886).

20 Lynda Nead, ‘Fallen Women and Foundlings: Rethinking Victorian Sexuality’ (2016) 82(1) History Workshop Journal 177.

21 Philip Lyndon Reynolds, Marriage in the Western Church: The Christianization of Marriage During the Patristic and Early Medieval Periods (Brill 1994) 147–154.

22 Code of Canon Law, c. 1056.

23 The Judicial Plan of 1772.

24 JDM Derrett, ‘The Administration of Hindu Law by the British’ (1961) 4 Comparative Studies in Society and History 10, 35.

25 Marc Galanter, ‘The Displacement of Traditional Law in Modern India’ (1968) Journal of Social Issues 65; Michael Anderson, ‘Islamic Law and the Colonial Encounter in British India’ (1996) Women Living Under Muslim Laws Occasional Paper no. 7.

26 For instance, see Sir William Jones’s letter to Charles Chapman dated 28 Sep 1785’ in Lord Teignmouth (ed) Memoirs of the Life, Writings, and Correspondence, of Sir William Jones (WM Poyntell & Co, 1805) 271.

27 Waghela v Sheikh Masludin (1887) 14 Ind App 89.

28 For instance, see Kumkum Sangari and Sudesh Vaid, ‘Recasting Women: An Introduction’ in their Recasting Women: Essays in Colonial History (Zubaan 1989); Sarkar (n8).

29 Ashwini Tambe, ‘Colluding Patriarchies: The Colonial Reform of Sexual Relations in India’ (2000) 26(3) Feminist Studies 586.

30 Between 1800–1856 eight suits for RCR had been brought in Bombay – two from the Armenian community, five from the Parsis and one involving a Muslim couple. As many as seven out of these eight suits had actually been brought by wives against their husbands. Padma Anagol, The Emergence of Feminism in India, 1850–1920 (Routledge 2016) 185.

31 Ardaseer Cursetjee v Perozeboye (1856) 6 MIA 348 (PC).

32 At 387.

33 At 389.

34 Moonshee Buzloor Ruheem v Shumsoonnissa Begum (1867) 9 MIA 551 (PC).

35 Bai Premkuvar v Bhika Kallianji (1868) 5 Bom HCR 209.

36 Law Commission, Proposal for the abolition of the matrimonial remedy of restitution of conjugal rights 1969 (Law Com No 23 1969).

37 Marshall v Marshall (1879) 5PD 19.

38 Ardaseer Cursetjee v Perozeboye above note 31 at 389.

39 Anagol above note 30 at 187.

40 Dadaji Bhikaji v Rukhmabai (1885) ILR 9 Bom 529; and Dadaji Bhikaji v Rukmabai (1886) ILR 10 Bom 301.

41 Tanika Sarkar, ‘Rhetoric against Age of Consent: Resisting Colonial Reason and Death of a Child-Wife’ (1993) 28(36) Economic and Political Weekly 1869.

42 Sudhir Chandra, Enslaved Daughters: Colonialism, Law and Women’s Rights (2nd edn, OUP 2008); and Anagol above note 30.

43 Kanika Sharma, ‘Withholding Consent to Conjugal Relations within Child Marriages in Colonial India: Rukhmabai's Fight’ (2020) 38 Law and History Review 151.

44 Antoinette Burton, ‘Conjugality on Trial: The Rukhmabai Case and the Debate on Indian Child Marriage in Late Victorian Britain’ in George Robb and Nancy Erber (eds) Disorder at the Court: Trials and Sexual Conflict at the Turn of the Century (Palgrave, Macmillan 1999).

45 Kanika Sharma, Laura Lammasniemi, and Tanika Sarkar, ‘Dadaji Bhikaji v Rukhmabai: Rewriting Consent and Conjugal Relations in Colonial India’ (2021) Indian Law Review (forthcoming).

46 Chandra above note 42 at 205.

47 Lynda Nead, Myths of Sexuality: Representations of Women in Victorian Britain (Basil Blackwell 1988) 91,127.

48 Stephanie Forward, ‘Attitudes to marriage and prostitution in the writings of Olive Cchreiner, Mona Caird, Sarah Grand and George Egerton’ (1999) 8(1) Women’s History Review 53.

49 For a discussion of the relation between domesticity, conjugality and early Indian nationalism see Chatterjee, and Sarkar, both above note 8.

50 For instance, see Anagol, above note 30, esp. chs 3&4.

51 Mary Lyndon Shanley, Feminism, Marriage, and the Law in Victorian England, 1850–1895 (Princeton University Press 1989); Lucy Bland, Banishing the Beast: English Feminism and Sexual Morality 1885–1914 (Penguin Books 1995) chapter 4; Philippa Levine, ‘“So Few Prizes and So Many Blanks”: Marriage and Feminism in Later Nineteenth-Century England’ (1989) 28(2) Journal of British Studies 150.

52 For the works of Elizabeth Wolstenhome Elmy, see Wright Maureen, Elizabeth Wolstenholme Elmy and the Victorian Feminist Movement: The Biography of an Insurgent Woman (Manchester University Press 2014).

53 Christabel Pankhurst (1913) The Dangers of Marriage, reprinted in Marie Mulvey Roberts & Tamae Mizuta (eds) Perspectives on the History of British Feminism – The Wives: The Rights of Married Women (Routledge/Thoemmes Press 1994) 5.

54 Fergus D’Arcy, ‘The Malthusian League and the Resistance to Birth Control Propaganda in Late Victorian Britain’ (1977) 31(3) Population Studies 429.

55 R v Clarence (1889) 22 QB 23, drawing from Hale Matthew Hale, The History of the Pleas of the Crown, Volume 1 (1736).

56 Matthew Hale, The History of the Pleas of the Crown, Volume 1 (1736). It was not until 1991 when marital exception was finally removed following the House of Lords case of R v R [1991] UKHL 12. In India, only marital rape of girls under the age of 18 is now recognised as rape following Independent Thought v Union of India (2017) 10 SCC 800.

57 Sanjam Ahluwalia, Reproductive Restraints: Birth Control in India, 1877–1947 (University of Illinois Press, 2007) 26–27.

58 Legg above note 7 at 173.

59 See T Sareetha v T Venkata Subbaiah (1983) AIR AP 356.

60 Breeding, reproduction and eugenics, see Ellis above note 5 at 61.

61 Florence Dixie, ‘A Woman’s Plan of Campaign’ Women’s Herald (London 24 January 1891) 211.

62 Frances Power Cobbe, ‘The Final Cause of Women’ in Josephine Butler (ed) Woman's Work and Woman's Culture (Macmillan 1869) 8; Alma Gillen in (1894) 13(2) Shafts 229.

63 Mona Caird, The Morality of Marriage and Other Essays on the Status and Destiny of Women (G. Redway 1897) 135.

64 Bland above note 51 at 124; Oliver Ross McGregor, Divorce in England: A Centenary Study (Heinemann Educational Publishers 1957) 882.

65 The Custody of Infants Act of 1839 had permitted the mother to petition the courts for custody of her children up to the age of seven and for access in respect of older children, curtailing the father’s near absolute right to custody.

66 Ann Sumner-Holmes, ‘The Double Standard in the English Divorce Laws, 1857–1923’ (1995) 20(2) Law and Social Inquiry 601; Margaret K Woodhouse, ‘The Marriage and Divorce Bill of 1857’ (1959) 3(3) The American Journal of Legal History 260.

67 Frances Power Cobbe, ‘Wife Torture in England’ (1878) Contemporary Review 82, Lee Holcome, Wives & Property: Reform of the Married Women's Property Law in Nineteenth-Century England (University of Toronto Press 1983) Chapter 1; Mary Lyndon Shanley, ‘Suffrage, Protective Labor Legislation, and Married Women's Property Laws in England’ (1986) 12(1) Signs 62.

68 Weldon v Weldon (1885) 10 PD 72.

69 Shanley above note 51 at 178.

70 John Francis Compton Miller, ‘Restitution of Conjugal Rights’ (1937) 20 Bell Yard: Journal of the Law Society’s School of Law 3.

71 Virasvami Chetti v Appasvami Chetti (1863) 1 Mad HCR 375.

72 Lalla Gobind Pershad v Dowlut Butee (1870) 14 SWR 451.

73 Gantapalli Appalamma v Gantapalli Yellayya (1897) ILR 20 Mad 470.

74 For age of consent in England, see Laura Lammasniemi, ‘“Precocious Girls”: Age of Consent, Class and Family in Late Nineteenth-Century England’ (2020) 38 Law and History Review 241.

75 The instrumental case on the issue was the death of the child wife Phulmoni due to injuries succumbed through sexual intercourse. Queen Empress v Hurry Mohun Mythee (1891) ILR 18 Cal 49.

76 A minimum age of marriage was only introduced three decades later when the Child Marriage Restraint Act 1929 set the minimum age of marriage for girls at 12 and men at 18.

77 Chandra above note 42 at 161.

78 As above.

79 Hindustan (Kalakankar), 7 February, Selections from the Vernacular Newspapers Published in the Panjab, North-Western Provinces, Oudh, Central Provinces and Berar, 14 February 1888. South Asia Open Archives (Hereafter SAOA).

80 The Sind Times, 22 June 1887, Report on native papers published in the Bombay Presidency for the week ending 2nd July 1887 (no. 27 of 1887). SAOA.

81 The immolation of a Hindu widow on the funeral pyre of her husband.

82 Subodh Sindhu (Khandwa), 6 July, Selections from the Vernacular Newspapers Published in the Panjab, North-Western Provinces, Oudh, Central Provinces and Berar recvd upto 11 July 1887, 423. SAOA.

83 Bharat Bandhu, 29 July 1887 (Aligarh) Selections from the Vernacular Newspapers Published in the Panjab, North-Western Provinces, Oudh, Central Provinces and Berar, 8 August 1887. SAOA.

84 Aftab-i-Panjab (Lahore) 26 March 1888, Selections from the Vernacular Newspapers Published in the Panjab, North-Western Provinces, Oudh, Central Provinces and Berar, 03 April 1888. SAOA.

85 Manusmriti Verse 9.17 in Wendy Doniger (trans), The Laws of Manu (Penguin Book 1991).

86 Mitra above note 14.

87 ‘Restitution of conjugal rights’, Subodh Patrika (Bombay), 26 June 1887. Report on native papers published in the Bombay Presidency for the week ending 2nd July 1887 (no. 27 of 1887). SAOA.

88 As above.

89 Manusmriti Verse 9.3 in Doniger above note 124.

90 Oudh Akhbar (Lucknow) 24 August, Selections from the Vernacular Newspapers Published in the North-Western Provinces and Oudh, Central Provinces and Rajputana, 28 August 1894. SAOA.

91 ‘The Last of the Rukhmabai Case’ The Times of India (Bombay), 7 July 1888, 3.

92 Quoted in Chandra, above note 42 at 168.

93 As above, 176.

94 ‘A Timid Refusal,’ The Times of India (Bombay), 5 March 1895, 4.

95 Indian Spectator (Bombay), 10 March, Report on native papers published in the Bombay Presidency for the week ending 16th March 1895 (no. 11 of 1895), 16. SAOA. The punishment of imprisonment for disobeying an RCR decree was finally done away through Act 29 of 1923, sec 2.

96 R v Jackson [1891] 1 QB 671. See also Lois Bibbings, Binding Men: Stories about violence and law in late Victorian England (Routledge 2014) Chapter 5.

97 R v Jackson [1891] 1 QB 671, 682.

98 ‘A Hindu Clitheroe Case’, Englishman's Overland Mail (Calcutta) 20 May 1891.

99 Above note 56.

100 D'Arcy above note 53; Angus McLaren, ‘Abortion in England, 1890-1914’ (1977) 20(4) Victorian Studies, 379-400; Patricia Knight, ‘Women and Abortion in Victorian and Edwardian England’ (1977) 4(1) History Workshop Journal, 57-68.

101 Stephen Cretney, Family Law in the Twentieth Century (OUP 2005) 146.

102 Sec 20 of the Matrimonial Proceedings and Property Act 1970.

103 Flavia Agnes, Family Law: Family Law and Constitutional Claims, vol 1(OUP 2011) 25–26.

104 For instance, see Puspa Kumari v Parichhit Pandey (2005) MLR 551.

105 T Sareetha v T Venkata Subbaiah (1983) AIR AP 356.

106 At 52.

107 (1984) AIR Delhi 66.

108 Saroj Rani vs Sudarshan Kumar Chadha (1984) AIR 1562 (SC).