The Road to HMA 1955: Laws 'Enacted' in/for India during the Victorian Era

Lord Cornwallis, the Governor General of Bengal promulgated the Cornwallis Code or the Bengal Code in 1793. This set of laws was used to govern British India till the promulgation of the Charter Act in 1833. In 1829 Lord Bentinck promulgated the Bengal Sati Regulation aka Regulation XVII, A. D. 1829 of the Bengal Code. This was the first law made by the British government to mitigate the oppression wrought upon women due to their marriage with a man who subsequently died an untimely death. Widows in that part of India were often burnt at the pyre of their dead husbands.

The idea of compelling a woman to die ­–that is to say, to murder her– in the event of her husband's death came from hoary gender-biased concepts which came to be due to ignorance. The 'guardians' of society did not feel the need to murder a woman when her father died. Nor when her mother died. Or when her brother died. But they felt the need to murder her when her husband died. Why was this so? The only plausible explanation is that the husband was deemed to own her vagina, and that the vagina had to go to heaven or hell with the husband, where he would continue to use this facility afforded him by Manu of the Smriti. Manu, as has been mentioned elsewhere in this website, had declared that only virgins could be given away in marriage. Therefore the oppression of widows arose directly from the law related to marriage. Interestingly if you combine the explicit instruction that only a virgin was eligible to be given away as a bride with the total ownership of a woman's vagina by one man, and multiply it by 72, you reach a point where your logic approaches the logic used by the creators of the '72 virgins waiting in heaven for dead jihadists' concept, which has been much talked about in recent times.

Bentinck did his bit to eradicate this oppression. The Bengal Sati Regulation (decreed at the cusp of the Victorian era by the governor general in council) is a great example of a law which contributed to the reduction of the oppression of women in marriage. As an aside let me mention that I remember a young frenemy from Auckland who said that the Indian and Sri Lankan obsession with virginity was a remnant of colonial oppression. Bentinck was a colonial master, the highest of the lords in the entire Indian sub-continent, a veritable king of kings. And he was born before the dawn of the Victorian era. He could be said to be the archetypal patriarch. Indeed he could not just be said to be such a one, he was one. A number of historians, feminists, social scientists would have us believe that such a man would be incapable of thinking about the general good of women. Why then was he trying to stop the oppression of Indian women? One possible explanation here is that the man can be greater than the system, if he is an exceptional man. (Bentinck, as has been mentioned elsewhere in this website, was no ordinary man. He signalled the end of the medieval age in India, in my humble opinion.) Another is that the oppression of women in the Victorian era in England has been exaggerated by historians.

The Caste Disabilities Removal Act was promulgated in 1850, in keeping with the way laws were forced upon the Indian people during the Raj. It quashed all provisions of any law which prevented a convert from getting any or all privileges which he would have got under those laws had he remained a follower of his original religion. This Act is often described as a path breaking law. The fact of the matter is that there was not too much that was path breaking about this law, except extending a legal provision from the territory of one state of India to the whole of India. Lord Bentinck had already decreed –eighteen years before this Act– section 9 of regulation vii of the Bengal Code. The Act itself did not claim to be path breaking. It clearly mentioned in its preamble that it was only extending Bentinck's law to the territory of the whole of India.

The path taken by this law after the birth of the modern day republic of India and the 'modern' republic of Pakistan is instructive in terms of revealing the degree of legitimacy of these republics. In India there continues to be full freedom to convert to any religion. A R Rehman is one example of a man who converted from Hinduism to Islam, and this fact did not stop the Indian people from letting him grow into a musical superstar. Any man can convert to any religion and any woman can convert to any religion. The only limitation is that if a Muslim converts to Hinduism then he can longer claim the right to marry four women. However he can continue to have normal marital relations with any number of wives –permitted by Muslim personal law– whom he married before his conversion to Hinduism. In Pakistan today, not only does a person lose the right to inherit property if he abandons Islam, he forfeits the very right to live.

It is not that Bentinck managed to free Indian society from oppression totally. He did not have that kind of power over the British government. Oppression continued, and the imperialists made some extremely sadistic laws, like the Madras Compulsory Labour Act for example.

The Indian Penal Code, written by Macaulay, and enacted in 1860, after his death, was a mix of good and bad. It was a great introductory step in the promotion of the rule of law, but some provisions were reflective of a backward mindset. The sections relating to adultery for example, treated the lover of the wife as a criminal and not the wife herself. The fact of the matter is that adultery qua the husband cannot take place if the wife is not the prime mover. Also there was no provision for punishing straying husbands or their lovers. This law continues to this day. It only provided a pretence of a civilised country by virtue of its label. But the law is pretty much worthless, and can only be used for the oppression of men.

The Converts Marriage Dissolution Act of 1866 introduced the concept of divorce to Indian law. It was also the first time that the idea of restitution of conjugal rights was put in a statute. The latter idea is wonderful in theory, and purports to provide legal backing to marriage in terms of preserving its sanctity. However it is not really a workable concept unless backed up with the threat of punishment as can be seen by the total lack of utility in the RCR provision (section 9) of the Hindu Marriage Act. This Act provided for the dissolution of marriage in the event of non compliance by the offending party. It is not clear to this writer whether this was done in good faith or was simply a sly way of permitting the legal death of dead marriages.

You may also wish to read The Road to the Hindu Marriage Act: William Bentinck and/or The Road to the Hindu Marriage Act: Legislatures under the British Raj and/or The Road to the Hindu Marriage Act: Laws 'Enacted' in/for India during the Victorian Era (Part 2) and/or The Road to the Hindu Marriage Act: Laws 'Enacted' in/for India during the Victorian Era (Part 3) and/or The Road to the Hindu Marriage Act: The Anand Marriage Act 1909 and/or The Road to the Hindu Marriage Act: The Indian Succession Act 1925

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Published by Manish Udar

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Last updated on 13th September 2013
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