Par. 1. “Now that the Age of Consent Act has been passed by his
Excellency the Viceroy, in Council, and as there is every likelihood
of its provisions not being sufficiently well understood by the
Mahomedan community in general, and by the ignorant Mahomedans in
particular, owing to the use of technical legal phraseology in the
drafting of the Act, it seems to the Committee of Management of the
Mahomedan Literary Society of Calcutta, to be highly desirable that
the object and intention of the Government in passing this Act, as
well as its scope and the manner in which it is to be administered by
the Criminal Authorities, should be laid down on paper in the clearest
and easiest language possible, for the information and instruction of
the Mahomedan population, and particularly of such of them as are not
conversant with legal technicalities.”
Par. 2. “The Committee are of opinion that such a course will be
highly beneficial to members of their community, inasmuch as it will
show to them distinctly what action on the part of a Mahomedan husband
towards his young wife has been made, by the recent legislation, a
heinous criminal offence of no less enormity than the offence of
_rape_, and punishable with the same heavy punishment.”
Par. 3. “It is hoped that they will thereby be put on their guard
against committing, or allowing the commission of an act which _they
have hitherto been accustomed to think lawful and innocent_, but which
has now been made into a heinous offence....”
Par. 9. “... There has already been a provision in the Indian Penal
Code, passed more than thirty years ago, that a man having sexual
intercourse with his own wife, with or without her consent, she _being
under the age of ten years_, shall be considered guilty of the offence
of _rape_, and shall be liable to transportation for life, or to
rigorous or simple imprisonment for ten years.”
Par. 10. “From this it follows that, under the Penal Code a man having
sexual intercourse with his own wife, with or without her consent, if
she is _above ten_ years of age, shall not be considered to have
committed the offence of _rape_. But the Act that has just been
passed, in amendment of the above provision in the Penal Code,
_raises_ the age of consent from _ten_ to _twelve_ years, and provides
that a man having sexual intercourse with his own wife, even with her
consent, shall be considered to be guilty of the offence of rape, if
the wife be of any age under _twelve completed years_. This is all the
change that has been made in the law.”
Par. 11. “It having been ascertained, from various sources, that in
some parts of the country husbands cohabit with their wives before
they have attained to the age of _twelve_ years, and even before they
have arrived at _puberty_, the result of such intercourse being in
many cases to cause injury to the health, and even danger to the life
of the girls, and to generate internal maladies which make them
miserable throughout their lives, and such a state of things having
come to the notice of Government, they have considered it their duty
to put a stop to it, and this is the object of the present
legislation.”
Par. 12. “The law does not interfere with the age at which a girl may
be married, but simply prohibits sexual intercourse with her by her
husband before she is _twelve_ years of age.”
Par. 13. “It is therefore _incumbent_ upon all husbands and their
guardians (if they are very young and inexperienced lads) to be very
careful that sexual intercourse does not take place until the
girl-wife has _passed_ the age of _twelve_ years. It will also be the
duty of the guardians of the girl-wife not to allow her husband to
cohabit with her until she has attained that age.”
Par. 17. “... The Mahomedan law (_i.e._, religious law) distinctly
sanctions consummation of marriage _only_ when the wife has reached
puberty, and has besides attained such physical development as renders
her fit for sexual intercourse, and it is _not imperative_ upon a
Mahomedan husband to consummate marriage with his wife when she is
_under_ the age of _twelve_ years. Even in those rare cases in which
the wife attains to puberty and the necessary physical development
before the age of _twelve_, a Mahomedan husband _may_, without
infringing any canon of the Mahommedan Ecclesiastical Law, _abstain_
from consummating his marriage with her _until_ she attains that age.
Par. 18. “The above will clearly show that the Act recently passed by
the Legislature does not, in any way, interfere with the Mahomedan
religion, and _no_ Mahomedan husband will be considered to have
committed a sin if he abstains from consummating marriage with his
wife _before_ she is _twelve_ years of age.”
(The pamphlet is published, as aforesaid, by the Mahomedan Literary
Society of Calcutta, of which the patron is the Hon. Sir Charles A.
Elliott, K.C.S.I., C.I.E., and the president Prince Mirza Jahan Kadar
Bahadur (of the Oudh family), and is signed by the secretary, Nawab
Abdool Luteef Bahadur, C.I.E.; Calcutta, 16 Taltollah, 22nd June, 1891.)
The italics, as above, exist in the original (with the exception of
those in Par. 3), and serve, singularly enough, to point for us a moral
very much deeper than that intended. It is a happy fact that British
feeling, supported by the growing sentiment of the more intelligent and
educated of the native population, has effected even so slight an
amelioration of law and custom, and we may hope for and press forward to
further improvement. Though the utterance quoted above is only that of
the Mahomedan section, it is, of course, understood that the law does
not apply or point to them alone, but to all the peoples and sects of
India; and that the approval of this legislation is also general among
the enlightened of those other creeds. (See end of Note XVII., 8.)
Singular confirmatory evidence as to the distressing prevalence of this
child-marriage is incidentally given in the following paragraph from the
_Times_ of 31st March, 1892:—
“A correspondent of the _Times of India_ mentions some odd instances
of minor difficulties which have occurred in the working of the
amended Factory Act, which came into force in India at the
commencement of the present year. The limit of age for ‘full-timers’
in factories is fixed at fourteen years, and as very few native
operatives know their children’s ages, or even their own, the medical
officer has, in passing lads and girls for work, to judge the age as
best he can—generally, as in the case of horses, by examining their
teeth. If he concludes that they are under fourteen, he reduces them
to ‘half-timers.’ In one Bombay mill recently a number of girls were
thus sent back as under age who were actually mothers, and several
boys who were fathers were also reduced; and one of the latter was the
father, it is said, of three children. The case of these lads is
particularly hard, for, with a wife and child, or perhaps children, to
support, life, on the pay of a ‘half-timer,’ must be a terrible
struggle.”
Lest it should be objected that such abuses—with their consequences—as
have been instanced in India, are peculiar to that country or
civilisation, and that their discussion has therefore no bearing on our
practices in England, and the physical consequences ensuant here, it
will be salutary to recall what has been our own national conduct in
this matter of enforcement of immature physical relations on girl
children or “wives” within times of by no means distant date. Blackstone
tells in his “Commentaries,” Book II., Chap. VIII., that “The wife must
be above nine years old at her husband’s death, otherwise she shall not
be endowed, though in Bracton’s time the age was indefinite, and dower
was then only due ‘si uxor possit dotem promereri, _et virum
sustinere_.’” Whereupon Ed. Christian makes the following note, worthy
of the most careful meditation:—“Lord Coke informs us that ‘if the wife
be past the age of nine years at the time of her husband’s death, she
shall be endowed, of what age soever her husband be, albeit he were but
_four_ years old. Quia junior non potest dotem promereri, _et virum
sustinere_.’ (Coke on Litt., 33.) This we are told by that grave and
reverend judge without any remark of surprise or reprobation. But it
confirms the observation of Montesquieu in the ‘Spirit of Laws,’ Book
XXVI., Chap. III. ‘There has been,’ says he, ‘much talk of a law in
England which permitted girls seven years old to choose a husband. This
law was shocking two ways; it had no regard to the time when Nature
gives maturity to the understanding, nor to the time when she gives
maturity to the body.’ It is abundantly clear, both from our law and
history, that formerly such early marriages were contracted as in the
present times are neither attempted nor thought of.
“This was probably owing to the right which the lord possessed of
putting up to sale the marriage of his infant tenant. He no doubt took
the first opportunity of prostituting (_i.e._, selling in marriage) the
infant to his own interest, without any regard to age or inclinations.
And thus what was so frequently practised and permitted by the law would
cease even in other instances to be considered with abhorrence. _If the
marriage of a female was delayed till she was sixteen, this benefit was
entirely lost to the lord her guardian._
“Even the 18 Eliz., cap. 7, which makes it a capital crime to abuse a
consenting female child under the age of ten years, seems to leave an
exception for these marriages by declaring only the _carnal and
unlawful_ knowledge of such woman-child to be a felony. Hence the
abolition of the feudal wardships and marriage at the Restoration may
perhaps have contributed not less to the improvement of the morals than
of the liberty of the people.”—(Blackstone’s Comm., Christian’s Edition,
1830, Vol. II., p. 131.)
6.—“... _manner_ ...”
“Manner,” or “custom” is the early Biblical definition for this habit
(_vide_ Gen. xviii. 11, and xxxi. 35). It may be noticed that the word
is not rendered or translated as “nature.” It is also called “sickness”
(Lev. xx. 18); and “pollution” (Ezek. xxii. 10). See also Note XXV. 8.
The authorised version of the Bible is here referred to. The euphemisms
attempted in the recent revised version as amendments of some of these
passages are equally consonant with the argument of this note.