This article is written by Diksha Paliwal. It talks about the Act of 1891 brought in India during the colonial period relating to the age of consent in marriage and a reasonable age limit below which a girl is incapable of giving consent, especially for cohabitation. It starts by giving an introduction to the Act, followed by a brief history behind the enactment of the Age of Consent Act, 1891. It further talks about the impact of this enactment. 

It has been published by Rachit Garg.

The offences of sexual abuse, marital rape, or forcing underage girls into sexual intercourse are not just crimes against the victim; these offences are crimes against the entire society as well as against humanity. They do not just impact the victim physically but shatter her mentally as well. It is the most heinous of offences and has been condemned since ancient times. 

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The Manu strongly castigates the abuse, harassment, and outrage of women’s modesty. According to Manusmriti shloka 8.352, persons accused of rape, molesting of a woman, adultery, or inciting a woman to adultery must be given the harshest punishment. According to Katyayana Smriti, shloka 69.2, 830, the punishment for forceful sexual activities includes a sentence of death along with a fine. The Adi Parva in the Mahabharata in its Shloka 1.74.50 – 51 states that no man has the authority or power to do anything that is against the will of his wife. 

Apart from this, the extracts of various Muslim religious books and their laws also condemn the offence of rape and other forced sexual activities and consist of punishment ranging from the death of the accused by stoning to the infliction of other harsh methods of beating on the accused. Extract 17:32 of the Quran mentions forceful sexual activities like unlawful sexual intercourse as shameful and are said to be opening the roads to many other evils. 

During the British Raj, generally, the prevalent personal laws applied to the people, and the Courts adjudicated the cases and punished the convicts based on their laws. However, the Crown felt a need for a better criminal justice system, owing to which a few facts and codes like the Code of Criminal Procedure, 1882, the Indian Penal Code, 1860, and many other Acts and ordinances were brought into force by the British. 

The subject matter of this article is, however, restricted to the Age of Consent Act, 1891 (Act X of 1891), which was implemented to change the then-existing age of consent. Before the enactment of the Act of 1891, the consent age was 10 years, beyond which the consent given by the girl was valid in the eyes of the law. The Act brought a great revolution to the emancipation of women in the 19th century. In an Indian patriarchal and male-dominated society, the concept of consent and a woman’s choice was irrelevant. This Act emphasised the concept of consent by a woman in marriage and cohabitation, thereby bringing a ray of hope and giving women a voice in their own lives. 

The term ‘age of consent’ connotes the age at which a person is considered legally competent to give consent to marriage or sexual intercourse. In India, the age of consent for marriage or sexual intercourse before the enactment of the Act of 1891, as discussed, was  10 years. The Act amended the then-existing age of consent and raised it to 12 years. This means that a girl under the age of 12 years was considered to be incapable of giving consent to marriage or sexual intercourse. 

The Age of Consent Bill, 1891 was introduced in the legislature on 9th January 1891, by Sir Andre Scoble and received the signature of the Crown on 19th March 1891 under the regime of Lord Lansdowne. The Act raised the age of consent from 10 years to 12 years for consummation or sexual intercourse in marriage or otherwise. The Act did not talk about the legal age of marriage, it merely stated the statutory age for giving consent, which was 10 years, before which a girl was considered incapable of marriage. This Bill of 1891, later on, took the form of the Criminal Amendment Act, 1891, whereby the Indian Penal Code, 1860, and the Code of Criminal Procedure, 1882 were amended. 

Section 375, IPC

The Act of 1891 amended Section 375 (old) of the Indian Penal Code (Act XLV, 1860) where the word ‘ten’ was substituted by ‘twelve’ years in clause Five and in the ‘Exception’ provided under Section. The Act was introduced to protect girls from premature cohabitation and immature prostitution, which often resulted in the death of the girl child. 

Entry in Schedule II, IPC

The Act also added a new entry with reference to Section 376 of the IPC in Schedule II, which categorised the offence of rape by a husband as a bailable offence and in any other case as a non-bailable offence. It also stated that summon is to be issued in cases of marital rape in the absence of consent and in any other cases warrants were to be issued. 

Section 561, CrPC

The Act further added Section 561 in the Code of Criminal Procedure, 1882, after Section 560, which included special provisions regarding offences relating to rape by a husband, was inserted. By virtue of this amendment, it was laid down that only the Chief Presidency Magistrate or the District Magistrate is empowered to take cognizance of the offence of rape committed by a husband. It also added that no police officer below the rank of a police Inspector shall take part in or conduct the investigation concerning this matter. 

Origin of the Act of 1891

The Act X of 1891 was mainly the result of the widespread and widely discussed horrifying incident of the death of a minor child aged about 11 years due to forceful sexual intercourse by her husband, who was 35 years of age. An article titled “Status of Women in India: In British Period” talks about the sorry state of women in the country during the British period. In the 19th century, the concept that women had any inalienable human rights, i.e., rights that could not be taken away and to which a person was entitled irrespective of the circumstances, was not in the picture. They were rather a part of her family, having no individual identity before her marriage, and after her marriage, she was considered to be under the possession of her husband, having complete rights over the girl. Irrespective of the age of the girl, if married, she was considered to be under the full control of her husband. People at that time were blinded by superstitions, customs, and traditions. Child marriage was an inseparable part of the traditional customs prevalent in Indian society at that time. All these situations were worsening the conditions of the female children and it became of paramount importance that a law that addressed these issues be brought before the legislators. 

Criminal litigation

Generally, the British preferred not to interfere with matters of customs and traditions, as they restricted themselves and focused their approach on expanding their reign over trade and commerce. Up until 1813 AD, the British followed the policy of non-interference. However, there arose certain instances which led to the enactment of various laws and Acts relating to criminal jurisprudence. The Act of 1891 is one of those Acts which was enacted after the shocking death of a minor girl. Although this was not the only reason behind the enactment of the Act, it acted as a catalyst for the same. 

Another important event that played a pivotal role in the enactment of this Act was the case of Rukmabai who was married at a very young age, i.e., at the age of 11 years. Rukmabai, a 22-year-old girl, was married to a man named Dadaji Bhikaji Raut, who was 8 years older than her. The marriage was solemnised on the terms that Dadaji would stay with Rukmabai’s family and pursue her further education. However, after she attained the majority and continued with her education, she refused to accept her marriage to her husband. When Dadaji insisted Rukmabai start living with her and accept her marriage, she denied it, and so he moved before the Bombay High Court by applying for restitution of conjugal rights. The court ordered that since Rukmabai is an adult and she does not wish to live with her husband, she cannot be forced to do so. Her marriage was performed at a very young age and was not in a capacity to give consent for the same, and thus, it cannot be binding on her. This case also orchestrated the enactment of the Age of Consent Act, 1891.

The aforementioned Rukmabai case and the Phulmoni rape case have been discussed in detail in the later part of the article.

Present applicability 

The Amendment Act was repealed later on, and the existing criminal laws set the age of consent at 18 years. Eventually, with the passage of time and the passing of various amendment laws, the age of consent kept increasing. The Child Marriage Restraint Act, 1929, also known as the Sarda Act, changed the age of consent from 12 to 14 years for marriage, which was later amended to 16 years in the year 1940 (amendment in the Child Marriage Restraint Act, 1929 and IPC, 1860). 

Presently, the legal or statutory age of consent is 18 years as per the Indian Penal Code, 1860, the CrPC, 1973, and the POCSO Act, 2012. This implies that before the age of 18 years, a person is not competent to give consent for sexual activity. In the eyes of the law, even if a person below the age of 18 years has given his or her consent, it is not valid.  

Impact of the Act

The enactment of the Act of 1891 was among the most emotionally charged conflicts that arose between the people of India and the British. The Indians thought that this enactment was an attack on their customs and traditions. The Act regarded sexual intercourse by a man with a woman under the age of 12 as an offence of rape. This was made applicable even to the husband who entered into sexual activity with a girl who was below the age of 12 years. This step by the British hurt the sentiments of the Indians, as they thought it was interference with Indian social customs. This Act resulted in widespread protest, especially in Bengal. It was felt that for the Indians, this Act challenged the control of males over female sexuality.

Put simply, people felt that it was a challenge to the patriarchal system prevalent in society. The Act received strong opposition from the orthodox sections of society. It was also quoted by these people that the consent of a woman, her judgements, and her self-control over her thoughts are questionable and, thus, are of no importance and need. The dependence of woman in several aspects of life was equated to her complete subservience to a man and so her consent was immaterial according to the orthodox people. 

Rukmabai’s case

Brief facts of the case 

The case of Dadaji Bhikaji v. Rukmabai (1885) was filed by the husband, Dadaji Bhikaji Raut, against his wife for the restitution of conjugal rights. Rukmabai was born in the year 1864. Two years later after she was born her father died after which her mother remarried Dr. Shakharam Arjun. When Rukmabai was 11 years old, she was married to Dadaji Bhikaji who was 9 years younger than her. Rukmabai’s stepfather insisted that she must continue her studies and till her studies are complete, she will live in her natal home. When Rukmabai completed 20 years, her husband demanded that she start living with him; however, she denied that as she wanted to continue with her studies and did not want to live with him. Due to Rukmabai’s denial, Dadaji Bhikaji filed a petition in the Bombay High Court for the restitution of his conjugal rights. Rukmabai contended that since the marriage took place without her consent, she could not be forced to honour that marriage.  

Issue before the court

The question before the Bombay High Court was to decide whether under such a child marriage, where the girl after attaining majority has refused to live with her husband can be asked forcibly to live with him against her will. 

Judgment

The court dismissed the application filed by the husband for the restitution of conjugal rights and stated that no law states that an adult young lady whose marriage took place without her consent can be forced to live with her husband and consummate the marriage against her will. Later on, Rukmabai also appealed to Queen Victoria to dissolve her marriage. Eventually, her marriage was dissolved, and in return, she paid Dadaji monetary compensation. 

Phulmoni rape case

Brief facts of the case

In the case of Queen-Empress v. Hurree Mohun Mythee (1890) (also known as the Phulmoni rape case), the victim Phulmoni, who was a girl aged about 11 years, was married to a man named Huree Mohan Mythee. He was about 35 years old when his marriage was solemnised with the victim. On the same day on which their marriage was solemnised, the husband forced himself on his wife who was an 11-year-old girl at that time. The forceful sexual intercourse led to the death of the girl, as she suffered various injuries and her vagina was also ruptured. The charges made against the accused were; culpable homicide not amounting to murder, voluntarily causing grievous hurt, causing the death of the girl by rash and negligent behaviour, and causing grievous hurt by an act so rashly or negligently done as to endanger the life of the girl.

Issue before the court

The court was to decide under what offences the accused would be held liable if found guilty. 

Judgement and observation

The Calcutta High Court observed that since the law of rape does not apply to the relations of husband and wife, the accused cannot be convicted of rape. However, due to the negligent and rash behaviour of the accused, which led to the death of the girl, he was convicted of culpable homicide. It was also addressed by the Court that under no law, there exists any provision that provides the husband with an absolute right over his wife and that under no law the husband is immune from the criminal law. He was punished with rigorous imprisonment for a period of one year for committing an offence under Section 338 of the Indian Penal Code, 1860. 

The age of consent was 16 years from 1940 until the enactment of the Protection of Children from Sexual Offences (POCSO) Act, 2012. The aforesaid Act has fixed the age of consent as 18 years, below which the consent given by the child is invalid in the eyes of the law. Sexual intercourse with a girl below the age of 18 years amounts to rape as per Section 375 of the Indian Penal Code. The amendment pertaining to the age of consent in the CrPC, 1973 was done by the Criminal Law (Amendment Act) of 2013, wherein the age of consent as mentioned in Section 375 was changed to 18 years from 16. 

However, the recent rise in false cases of the POCSO Act and the conviction in even those cases in which the girl consented to sexual intercourse out of love, has left many in doubt regarding whether the age of consent should be lowered to prevent such misuse. 

The Age of Consent Act, 1891, was a landmark legislation in history pertaining to the rights of women. Child marriages in India were very common at that time, and with such marriages came the horrifying consequences of the death of women at a very tender age due to forceful cohabitation and pregnancy at a very young age. Various events acted as a catalyst in the enactment of these acts including Phulmoni’s rape case, Rukmabai’s case, etc. The law aimed to prohibit sexual intercourse with a girl who had not completed the age of 12 years, and was applicable to both married and unmarried girls. The orthodox Hindus and Muslims contended that the Britishers had no authority to adjudicate and make laws on this matter and stated that these were purely matters of their traditions. This consent Act received severe opposition from the Indians and raised many controversies across the country. Many people believe that the Act was one of the main reasons that radicalised the national movement against the British. 


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