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Rukhmabai: Debate Over Woman's Right to Her Person Sudhir Chandra

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Rukhmabai: Debate Over Woman's Right to Her Person Sudhir Chandra Rukhmabai: Debate Over Woman's Right to Her Person Sudhir Chandra Justice Pinhey's verdict rescinding Dadaji Bhikaji's claim to restitution of conjugal rights over his wife, Rukhmabai, snowballed in the late 19th century into a verbal duel between the Anglo-Indian press and the native press. While the Anglo- Indian press was exultant at the proven moral superiority of the British legal systemt the native press was alarmed at the threat of socio-cultural subversion of Hindu family and society the judgment posed. Only in the writings ofMalabari and a few other reformers do we find a justification of the verdict based on native discourse of conjugal norms. I pronounce a hard-hitting and morally charged and early marriages in India, marriages in verdict. Ever since he heard the case on England were between persons of mature ON September 21, 1885, an extraordinary Saturday, he had been "looking into the age, and consequently the nuptial and the judgment was delivered by Justice Pinhey authorities'' which had convinced him that consummation of marriage were not normally of the Bombay High Court in a suit for "the plaintiff cannot maintain this action". separated much in time. He regretted - and restitution of conjugal rights. Filed a year- Having given the verdict straightaway, he this is important - that "the practice of and-a-half before, the suit involved Dadaji proceeded to elaborate the grounds thereof. allowing suits for the restitution of conjugal Bhikaji and Rukhmabai who, during the 11 It waw a "misnomer", Pinhey began, "to rights", which had "originated in England years that they had been married, had never call this a suit for the restitution of conjugal under peculiar circumstances", was at all lived together. When in March 1884 Dadaji rights". According to the practice in England transplanted in India. It had "no foundation made the first legal move to claim the and British India, a suit for restitution of in Hindu law - the religious law of the parties company of his wife, Rukhmabai refused on conjugal rights was one that, in the event of to the suit" before him. "Under the Hindu the ground of his poverty - be was unable separation and living apart after cohabitation, law", he emphasised, "such a suit would not "to provide her lodging, maintenance and cither spouse could bring against the other. be cognisable by a Civil Court". Indeed, for clothing" - and bad health, which was such The suit filed by Dadaji was not of that many years after he came out to India - in that she could not ''safely live with him". To character. In a narrative reflective of his 1851 - the courts did not admit such suits. They began doing so only in the wake of the these contingent objections Rukhmabai axiomatics Pinhey observed: post-1857 judicial and legal reconstruction soon added a principle of cardinal im- The parties to the present suit went through that occasioned the amalgamation of the portance. She questioned the validity of her the religious ceremony of marriage eleven supreme and sadar courts into the high courts. marriage with Dadaji. Married when she was years ago when the defendant was a child of eleven years of age. They have never 11, before she had "arrived at years of Pinhey's regret about the transplantation cohabited. And now that the defendant is a discretion", she refused to be bound to it. in India of English legal practice was woman of twenty-two, the plaintiff asks the A marriage - even a Hindu marriage - ought heightened by the fact that it had been Court to compel her to go to his house, that not to be binding on a spouse who had not discredited in England, Crystallised in Sir he may complete his contact with her by consented to it. James Hannens judgment in Weldon vs consummating the marriage. The defendant, The case came up for hearing on September Weldon,2 English opinion against the practice being now of full age, objects to ratifying had resulted in the Matrimonial Causes Act 19. The same morning The Times of India and completing the contract entered into on - Stat 47 and 48 Vic, cap 68 - of August carried a long letter by 'A Hindu Lady' her behalf by her guardians while she was which detailed the tragic plight of Hindu of lender age. 1884. The act removed the penal provisions women. To make sure that it did not escape Having unabashedly shown his sympa- of the law which subjected to imprisonment the readers' attention, The Times of India thies, sympathies natural in one favouring and/or attachment of property a spouse who 1 carried an editorial to commend the letter. marriage as a contract and consent as essen- disregarded the court's directive to resume 3 Given the importance of the premier Bombay tial to it, Pinhey unburdened his shocked cohabitation. The act had in fact rendered daily, and the everyday routine of Anglo- sensibility in morally charged diction: "almost inoperative' the practice of allowing 4 Indian officials, it can be assumed that Pinhey It seemes to me that it would be a barbarous, such suits. must have read the letter and the editorial a cruel, a revolting thing to do to compel a However salutary the changes in England, before leaving for the court, and that the young lady under those circumstances to go and whatever the position under the Hindu proceedings in the case later in the day must to a man whom she dislikes, in order that law, Pinhey knew that he was bound by the have confirmed the impressions of the he may cohabit with her against her will ... unregenerated English law that still obtained morning's reading. It was, however, on legal grounds that in India. All he could do was to refuse to The following day was a Sunday and the Pinhey avoided doing what appeared to him enlarge its application ever so little to include hearing in the case resumed on September 21. barbarous, cruel and revolting. As he examined institution within the meaning of restitution After the evidence and the arguments for the case law over the agonising weekend, he of conjugal rights. Legally not incumbent, the plaintiff had been presented, Latham, the found that no court had ever ordered "a such an enlargement would be morally advocate-general, got up to present woman, who had gone through the religious reprehensible. In his impassioned words, he Rukhmabai's defence. Before he could speak, ceremony of marriage with a man, to allow was not bound. the judge told him: that man to consummate the marriage against „.to carry the practice further than I find Mr Advocate-General, unless you are her will". Neither the law nor the practice of support for in the English authorities, particularly anxious to make some remarks the courts in England and India would there- especially when the granting of the relief for the assistance of the court, I think I need fore justify him in "making such an order" prayed would produce consequences not trouble you as I am prepared to dispose or Dadaji in "maintaining the present suit". revolting not only to civilised persons, but of the case at once. Pinhey realised the futility of expecting an even to untutored human beings possessed The advocate-general naturally evincing English precedent that wouldbe "on all fours" of ordinary delicacy of feeling... I am certainly no such anxiety, Pinhey proceeded to with the suit before him. For, unlike infant not disposed to make a precedent, or to Economic and Political Weekly November 2, 1996 2937 extend the practice of the Court in respect collaborators to the false evidence tendered Happily Justice Pinhey "declined to allow of suits of this nature beyond the point for by them. But he was ill-prepared for an the law to be made an instrument of torture". which I find authority. appeal in the name of the plaintiffs "He showed", the paper continued, "that a Secure in the belief that he had devised innocence. It brought forth the wrath that had suit of this kind was a creation of the English a legal way out of a moral dilemma, Pinhey been welling up since the week-end; law, which was intended to refer only to was 'glad' that5 When the plaintiff found that the young lady persons of mature age, who accepted the was unwilling to share his home, he should responsibilities of marriage with their eyes in the view of the law which I take, I am not have tried to recover her person, as if she open". "There was", moreover, "'no authority not obliged to grant the plaintiff the relief had been a horse or a bullock (The Times in English law to support a case like this, which he seeks, and to compel this young of India, September 25, 1985). and his lordship did not wish to extend the lady of twenty-two to go to the house of the law further". He also said that there was plaintiff in order that he may consummate the marriage arranged for her during her II "nothing more barbarous than to compel a young lady to go to a person whom she helpless infancy. Pinhey's judgment immediately aroused disliked". diametrically opposed reactions. It was for The moral exuberance of Pinhey's oration The Times of India jaw in the judgment some a bold declaration of the Indian belonged in the tradition of those trenchant "a shrewd blow at the whole system of infant woman's right to personal freedom and judicial pronouncements - a classic example marriage' that could not "fail to have a most dignity.
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