The Indian Feminist Judgments project [IFJP] is a collaboration between feminist legal academics, litigators and judges, practitioners, and activists from law and other disciplines who use a feminist lens to re-write alternative opinions to existing judgments. Indian Law Review, Volume 5 (Issue 3) presents a set of six re-written judgments and accompanying commentaries prepared as part of the IFJP. 

This interview with Kanika Sharma and Laura Lammasniemi was conducted over a Zoom call and edited for length and clarity. Kanika Sharma is the Chair of the Centre for Law in Asia at the SOAS University of London. Her research focuses on South Asian colonial legal history, political trials in India, and the development of feminist rights in the country. Laura Lammasniemi is an associate professor at Warwick University, and her research is focused on the legal history of women and crime in 19^th-century England. This interview pertains to their rewriting of the judgment of Dadaji Bhikaji v Rukhmabai, which uses the legal rules of the period and puts forward an alternative application of the doctrine of Restitution of Conjugal Rights, which is primarily based on consent and makes a case for taking into account female consent to both marriage and conjugal relations in the same.

[Ed Note: You can find information with regards to the podcast and can access all the episodes by clicking here]

 

Ajitesh: Hello, everyone, I am Ajitesh, and I’m one of the legal editors with Law and Other Things Blog and today, we have Laura and Kanika with us. As Law and Other Things has a segment called the New Scholarship segment, where we discuss the recent developments in public law, in furtherance of which I’m interviewing Kanika and Laura on their article published in the Indian Feminist Judgment Rewriting Project. They have rewritten the judgment of Dadaji Bhikaji v Rukhmabai, and in this interview, we will be elaborating on the same.

To start with the introduction, Kanika is the Chair of the Centre for Law in Asia at the SOAS University of London. Her research focuses on South Asian colonial legal history, particularly political trials in India and the development of feminist rights in the country. Laura is an associate professor at Warwick University, and her research has focused on the legal history of women and crime in 19^th-century England. The article was also co-authored by Tanika Sharma from Jawaharlal Nehru University. Unfortunately, due to personal and professional reasons, she could not join us today.

The article deals with the trial of Dadaji Bhikaji v Rukhmabai, a case on the restitution of conjugal rights, where Rukhmabai, a minor, was married to Bhikaji, and later on, he went on to institute a suit for restitution of conjugal rights, but Rukhmabai contested it. At the high court, the judges had differentiated between the concepts of institution and restitution of conjugal rights and located consent to deny the remedy of restitution. However, when the appeal was referred to an appellate court, the court, focusing on the sacramental nature of Hindu marriages, disregarded the element of consent and sent the case back to trial, where ultimately, the decree of restitution of conjugal rights was granted.

In the paper, the authors have the objective to rewrite the judgment from a perspective of a feminist judge challenging the remedy of restitution of conjugal rights and locating consent in Hindu Personal laws. Going ahead in this regard, my first question to both Laura and Kanika is, what motivated you to choose this particular case to rewrite?

Kanika: Hi Ajitesh, thank you for having us. I’m Kanika, and I’m very pleased to be here and share our research with the audience. Just to note, our co-author on this piece wasn’t Tanika Sharma but Tanika Sarkar, who couldn’t be with us here. I came across Rukhmabai’s case while teaching about the age of consent to my students at SOAS. Their early introduction has sparked years of work on this case, including multiple collaborations with Laura and the Indian Feminist judgments rewriting project article, where we had the opportunity to work with professor Sarkar, whose work I have always admired.

Now, this case is an interesting one, not only for the legal precedent it sets for restitution of conjugal rights in Hindu Personal law but also for the personalities involved. In fact, it was Rukhmabai’s own life story which drew me to the case. In the mid-1870s, when she was only 11 years old, Rukhmabai was married to her stepfather’s cousin, Dadaji Bhikaji. As there was no minimum age for marriage at that time, it was entirely legal. But once married, contrary to the customs at the time, Rukhmabai refused to live with her husband once she attained puberty. She, as we know, sued for the restitution of his conjugal rights. She fought the case for years and was even willing to take the case to the Privy Council in London if needed, which was unusual for a Hindu woman in late 19^th century India. She was very vocal about her unwillingness to live with her husband through anonymous letters to the editors published in the Times of India newspaper. She later wrote her concerns more publicly.

Though her views attracted the wrath of Hindu traditionalists, she also garnered the support of reformists, who collected funds to support her, and these funds not only helped her court case, but when that was resolved, they paid for her to study medicine in the UK. She returned to India as the country’s first practicing female doctor and continued to practice medicine until the 1930s. It is precisely that point where Rukhmabai, because she hadn’t ever lived with her husband in a marital home, allowed Justice Pinney, as Ajitesh mentioned, to distinguish between restitution of conjugal rights and the institution of conjugal rights.

From the legal point of view, that distinction was not upheld by the appellate court. This case helped establish suits for restitution of conjugal rights in Hindu personal law, where such suits have flourished and continued to operate even in the 21^st century, long after they’ve fallen into disuse in the UK. For me, at its heart, the case is about the question of consent. Can a woman, with her consent to conjugal relations within marriage, by choosing not to return to the marital home? As Justice Choudhury highlighted in the T Sareetha case a century later, this issue of consent is particularly important when the legal system such as the Indian legal system upholds the marital rape exemption.

The case also allows us to challenge some deeply held beliefs about Hindu personal law. For instance, even today, supporters of restitution of conjugal rights, in a similar vein to those who supported the continuing existence of Section 377 of the Indian Penal Code and the continuing criminalization of homosexuality argue that these laws are intrinsic to Hinduism and Hindu society. However, this case shows very clearly that a lot of what we today regard as intrinsic to Hindu law is in fact a late 19^th-century addition often directly borrowed from British law at the time. Similarly, this particular Rukhmabai case also helps us to dismantle the widely held belief that colonial interventions in Indian personal law were driven by the desire to improve the condition of Indian women. As her case shows, suits for restitution of conjugal rights actively worsened the limited rights that Hindu women such as Rukhmabai held at the end of the 19^th century.

Lastly and I think, quite importantly, this case shows how Indian men colluded with British men to restrict the rights of Indian women who were rarely allowed to speak on their own behalf. The fact that Rukhmabai spoke so strongly on her own behalf allows us to recover some of the earliest thoughts of Indian feminists who, I must stress here, may not have described themselves as feminists at that time, but whose legacies have helped strengthen these incipient feminist ideas in India.

Laura: Hello, my name is Laura and I’m very happy to be here. Thank you Ajitesh for hosting this conversation. I’ll be continuing from where Kanika ended and come in on a few things that Kanika said. Like she said how she came through the case of Rukhmabai while teaching and as she was teaching this case, she knew that I was working on the issues of consent and feminist campaigning in 1880s England, which was in the same time period, but I was looking at England instead. We started to have these conversations about consent and through these conversations, there was a significant overlap in our interests. The doctrine of restitution of conjugal rights was the focus of our article and a lot of legal reforms, both in England and India at the time. Importantly, there was a feminist discourse, even though it was not called as such, but there existed feminist consciousness around this doctrine and resisted this doctrine as well.

There was a lot of feminist campaigns that I was looking at England at the time and then they became involved in doing the same in India as well. Some of these would collect Rukhmabai to let her study in England and some of them publicly wrote in her support. There was a clearly a transnational feminist network happening in that time and in our work, we wanted to acknowledge its histories in England and in India and how they were intertwined socially as much as they were intertwined legally.

The case of Rukhmabai really bought mine and Kanika’s research together and at the time of the Indian Feminist Judgments Project, we were already working through these ideas and were quite invested in the case and planning some comparative work on this. When we saw the call for papers regarding the Indian Feminist Judgment Rewriting Project, it was a no-brainer for us to be involved because we knew that this was what we wanted to do. The year the Indian Feminist Judgments Project was launched, we held a conference in London about the age of consent and we had the opportunity to speak to work with wonderful scholars such as Tanika Sarkar and Ishita Pandey. We were delighted to know that Professor Sarkar later joined us in writing the commentary and we had the opportunity to work with her on the case.

Ajitesh: Thank you so much. Even I think that this case was very hot in the feminist discourse in India. Following up on the question, what were some specific considerations you had in mind, and what were some of the challenges you had to face especially considering the fact that this is an old judgment from the year 1886?

Kanika: Thanks, Ajitesh, that is a really interesting question. Listeners may know that the Indian feminist judgment project is part of a larger series of a Feminist judgments project across the world. So, it started in Canada and we had feminist judgment projects in India, in England, in Scotland, Australia, New Zealand, Northern Ireland. There are also similar projects going on in Africa, in Pakistan, etc. What these projects have is a shared methodology, which is to rewrite judgments from a feminist point of view but to do so while remaining true to the laws that existed at the time of the case.

As you mentioned, our case is pretty old and is from the 1880s. so it was quite tricky to rewrite the judgment by locating it in 1880 but giving it a feminist outcome. Luckily as you would have seen it on our article on the Indian Law Review, Justice Pinny had already laid the ground work in the original judgment, which were not explicitly feminist on their own but it lent itself very well to a feminist reading and we sort of built on it in our own judgment. Crucial for us was the point of how do we center the issue of female consent, especially in the context of how Hindu marriage is treated as a sacrament, so the consent of the parties to the marriage is immaterial to the validity of the marriage. That is to say, when a bride has not given her consent to the marriage in the first place, can she meaningfully withhold the consent to conjugal rights within that marriage. We argue that it is absolutely so.

Lastly, something that we grappled with was the issue of how it was quite easy to dismiss restitution of conjugal rights as a misogynistic tool that aided men alone, but the early legal history of the doctrine in India and the UK shows that such suits were often initiated by destitute women who were abandoned by their husbands, either as ways to let their husbands take them back to their martial home or to secure maintenance through the courts. So how do we reconcile the two parts of the suits for restitution of conjugal rights; since it is a device which forces women to live with their husbands against their will but also as an important legal remedy that allows a destitute wife to secure financial relief. These were some of the points that we had in mind as we were constructing our feminist judgment. I will give way to Laura now to discuss some of the difficulties we faced while doing so.

Laura: Thank you Kanika. I think the points that Kanika stated were very important points that we grappled with. But we had some more pragmatic problems. One of the difficulties we had was that the case of Rukhmabai and her life story was very well known, to the point that there was a movie made on her life. Most of the writing made on her life was made by historians and not legal historians. So, we found that the core concept of Restitution of Conjugal Rights was not well explored in this case, particularly in England. When we were doing so, we had to deal with some major gaps, both legal and in existing knowledge. We also had sparse source material from that period. We had to do a bit of original research for the piece since the court records from 19^th century England were badly preserved. It took us quite some time to piece everything together and to really understand how this doctrine operated in 19^th-century courts in India and England as well. So, we had the key challenges of accessing source material and bridging the existing gaps in knowledge.

But this work of bridging the gaps was the richness of the project for us. We had to do a deep dive in the source material, put ourselves in the mindsets of judges in colonial times and think about language carefully. It was a fruitful process, even though it was quite challenging at times. We also had a disciplinary challenge, which we have reflected on at the end of the article. Both Kanika and I come from legal backgrounds and we worked on the piece with Tanika Sarkar, a well-known social historian who has written about the case on the past few decades.

The three of us also had conversations on how do we marry social history and legal history respectively. What kind of arguments do we put forward? How do we include other histories of the social period while working within the constraints of the feminist judgment project that Kanika was talking about early on? So, these were the challenges that we faced while working through the case.

Ajitesh: Yes. When I first read your article, I also felt that even getting records of recent cases become very hard due to ill preservation and how difficult it must have been to get the relevant records from the 1800s. Continuing, another interesting thing that I noted in the article was that you had mentioned how the caste customs specific to Rukhmabai were not been brought into the fold. My question is what difference would it have made if they were introduced in the court? I’m coming from a point if a colonial court would have considered diverse customs as against the prevalent Hindu customs that they have drawn from.

Kanika: Thanks for the question Ajitesh. So, from the start, I had to be clear that our discussion in the paper about the impact of customs in the case is more of an intellectual and academic exercise rather than a legal one. The question we pose to ourselves in the paper was given that Hindu personal laws in colonial and post-colonial India was overwhelmingly influenced by the practices and customs of the upper castes. Could Rukhmabai potentially have used customs from her own lower caste background of belonging to the Sutar or carpenter caste to get a judgment more favorable to her?

Of course. Caste-based customs as you’ve mentioned were one kind of customs available to her, the others being lineage-based and locality-based customs. So, you ask a relevant question if the courts had taken customs into account. We know that in colonial India, courts were more likely to take customs into account than in the post-colonial period. One of the main reasons for this was the Hindu Code Acts of the mid-1950s, which gave a statutory footing to Hindu personal law that was not available to it previously.  Through the colonial period, because Hindu personal law acted as a common law system, there was much more willingness to change and adapt it.

Now let’s focus here on Rukhmabai’s caste customs on the limited knowledge we have of them. Following the Widow Remarriage Act of 1856, the Hindu widows were legally allowed to remarry following upper caste customs, such marriages were still socially stigmatized. Uma Chakraborty, has succinctly called this “Brahmanical Patriarchy”, where higher the caste, the more restrictions were placed on women. We know that this was clearly not the case for Rukhmabai’s caste, since her own mother had remarried and in fact, it was upon the remarriage that she had transferred the property left to her by her deceased husband, that is Rukhmabai’s father. This made Rukhmabai a rare, independently wealthy Hindu woman in the 19^th century. In fact, many argue that it was precisely Rukhmabai’s wealth that enticed Dadaji Bhikaji to bring about this case. It was not the restitution of conjugal rights he wanted, but access to Rukhmabai’s wealth.

In the paper, we focus on the appellate court judgment of 1886, where we rewrite the judgment, but in the original judgment, the court gave a decision in favor of Bhikaji. The case was retried and went back to the High Court and back again to the Appellate court for the second time. During the second time when it went back to the Appellate court, Rukhmabai’s counsel offered Bhikaji 2000 Rupees to drop the case and he dropped the case immediately. It was financial gain that seems to have motivated Bhikaji. Let’s come back to the caste and customs in the same.

As you may know and as we mentioned in the article, Rukhmabai’s lawyer did not raise her caste’s customs in the court, and because of the fluid nature of such customs, they are no longer accessible to us here in the 21^st century. But we do wonder given the fact that customs of the lower castes were far more likely to recognize the dissolvability of marriages, whether under her own customary laws, Rukhmabai would have been forced to remain in a marriage that she clearly did not want or if she would have been able to leave the marriage, which would have rendered the suit for restitution of conjugal rights meaningless. We can only guess what could have happened because those customs remain inaccessible to us. However, this exercise allows us to think about what were some of the more options that were available to women, particularly women of the lower castes, which Brahmanical patriarchy has erased.

Ajitesh: Thank you Kanika for succinctly putting it. The next question I have is for Laura. As in the paper you have discussed how the remedy of restitution of conjugal rights in foreign to Hindu personal laws and was transplanted from the colonial laws or rather, from the British law, so this is not the only scenario where foreign law was transplanted in India, whereas parallel laws have already been repealed but we continue to use them. I was hoping you could comment more on this comparative angle and the question of transplantation of laws.

Laura: Thank you and yes, it’s a great question actually. You are right, restitution of conjugal rights is a good example of a doctrine that became engrained in India while at the same time it was losing its importance in England. We can see this in family law concepts like restitution of conjugal rights, but we can also see it in other areas such as criminal law. So, in the same period in the late 19^th century, the very notion of punishment in criminal and the very idea of criminality diverges between England and in India. We wanted to explore this complexity in the article to some detail as to how the concept of restitution of conjugal rights becomes so important in India while it is also losing significance in England.

When we think about the history of conjugal rights, we start by acknowledging that it is an ecclesiastic doctrine and primarily Christian in nature, which explains some difficulties that were later experienced after its transplantation as well. Since it is a Christian doctrine, it is based on the notion of insolubility of marriage. The key idea behind restitution of conjugal rights is that if a married spouse leaves the family home, the court has the right to order them to return back and resume their lives as husband and wife. This was used at a time when divorce was not an option in Christian marriages and was enforced by ecclesiastical courts in the early days. From the mid-19^th century, the concept moved from its ecclesiastical roots and became a part of civil law in England.

As it became a part of civil law, it quickly lost its prominence and became less popular to the point till Kanika said, being used to settle issues of maintenance. One of the last nails in the coffin for the same in England was the high-profile case of Weldon v Weldon. In the case, rather unusually, the claim for restitution of conjugal rights was made by the wife, who had been abandoned by her husband. Instead of maintenance, she wanted her husband to resume their marital life and continue living together as husband and wife. The court had no choice at the time but to give her the writ for restitution of conjugal rights. The husband was ordered to return to the family home and continue living together as husband and wife.

The case was huge at the time. The press, the parliament, everyone was outraged about the poor man having to live with his wife against his will and if he didn’t, he could face imprisonment. It is interesting to note that much of the commentary at the time was ignorant of the fact that many women had been in this situation before. As a response to this case and this idea, the parliament changed the law in England and removed the punishment for failing to comply with a writ for restitution of conjugal rights. Before this change, if a court allowed a husband or a wife to go live with their wedded partner, they could be imprisoned. In 1884 and after the Weldon case, imprisonment was removed as a penalty, and failing to return to marital home after a writ of restitution of conjugal rights opened the door for divorce. In many cases after 1884 in England, restitution of conjugal rights claims made divorce easier and speedier than it would have been otherwise. This was aligned with the social norms of the time and a sprawling acceptance of the fact that marriage could break down in law as well as in practice. This idea of the insolubility of marriage didn’t exist in society anymore. What is clear is that in late-19^th century England, restitution of conjugal rights had fallen out of favor and became meaningless as a doctrine.

At the same time, you have the case of Rukhmabai in India, which firmly transplanted the doctrine in the Indian legal system. It wasn’t an easy transplant, since practices around law and marriage in England and in India were different at the times. During the time the Rukhmabai case was heard, restitution of conjugal rights could no longer lead to imprisonment in England but the courts in the Rukhmabai case ignored it and used the doctrine as it had been in England years before the change. The Rukhmabai case is a clear illustration of how this transplant became a part of the Indian legal system and at the same time, was being rejected by British lawmakers, the courts and the press at home. 

To conclude, as the doctrine was transplanted, the original doctrine was somewhat ousted to. We see in the case of Rukhmabai that the doctrine of restitution of conjugal rights was not used exactly in the same way in India as it had been used in England at the time. The courts here used a more punitive version of the doctrine, one which allowed for imprisonment, which was not allowed in England.

Kanika: If I had to come in here, just to bring back what Laura said into the focus of the Rukhmabai case, two things stand out here that listeners may not know. One, as Laura mentioned, the concept of restitution of conjugal rights in India, particularly in the late 19^th century was punitive in nature, so Rukhmabai was threatened with six months of imprisonment if she did not go live with Bhikaji. The other thing was that during the late 19^th century, divorce had been recognized in the UK, so women did not have to follow the decree of conjugal rights in order to divorce their husbands. Listeners may know that this was not an option for Hindu women since Hindu women did not gain the right to divorce on a national level till the Hindu Marriage Act of 1955 was passed. To resist this doctrine is what makes it more important for us and also for the feminist project.

Ajitesh: Thank you so much for that. I guess we are running out of time, so ill quickly jump to the most contemporary question, as you have just discussed that it was the Rukhmabai case that led to the remedy of restitution of conjugal rights to be ingrained in the Indian jurisprudence. At that time there were arguments for the abolition of the doctrine, but it has become so ingrained that is now being creatively used for getting a decree of divorce or maintenance. Could you comment on the contemporary situation of the doctrine and where we can go from there?

Kanika: Sure. Thank you for the opportunity to reflect on contemporary times. Rukhmabai’s case set the precedent and embedded this doctrine in our law and completely changed what restitution of conjugal rights looks like in Hindu personal law today. Restitution of conjugal rights as we know at the time of the Rukhmabai case was a common law doctrine and it was given statutory footing in post-colonial India by Section 9 of the Hindu Marriage Act of 1955. As you say, it has become ingrained in Hindu law and larger Indian law as well.

The doctrine was put to creative uses by men in India, often in the 1960s and 70s against most middle-class Hindu women, who had started working out of the home. Their husbands would use this doctrine to ensure that the women were living the home and not in another city or town, where her job might take her. Around the same time, the Marriage Law Amendment of 1976 noted that following a decree for restitution of conjugal rights, if the spouses did not resume cohabitation within one year, it could be used as a ground for divorce. Thus, we see men who wanted to divorce their wives would initiate such suits against them, wait for the 12-month period to run out, and then initiate divorce proceedings against the wishes of their wives. In cases where the spouse sought maintenance from the husband, many brought countersuits for restitution of conjugal rights against the wives in the hope that the threat of cohabitation may deter the wife from seeking financial remedies.

The courts took a dim view of such collusive cases, but Figueres show that husbands were willing to take the risk. Flavia Agnes’ study of Indian family courts has shown that women are considerably more likely to file for annulment, judicial separation and divorce, almost 80% of cases regarding restitution of conjugal rights cases were the same.

Just like the Rukhmabai case, the most famous post-independence case on the doctrine of restitution of conjugal rights in Hindu law was brought by actress T Sareetha’s husband against her. In 1983, Justice Choudhary in the Andhra Pradesh High Court, struck down Section 9 of the Hindu Marriage Act on the grounds that it violated Article 21 of the Constitution and by extension, also violated the right to privacy and human dignity while acknowledging the marital rape exemption meant that women who first return to their husband may be subjected to not only what he calls “sexual molestation within the marriage”, but also “to bear babies born out of marital rape against their wishes.” He also contended that restitution of conjugal rights violated Article 14 of the Indian Constitution, the right to equality, by treating the wife and husband, who are inherently unequal in the Indian society as equals under the law.

However, this judgment was overturned the next year by the Supreme Court in the case of Saroj Rani v Sudarshan Kumar Chaddha. In this case, the wife had been turned out of her husband’s house and she had filed a suit to return to her marital home. Here, the abandoned wife did wish to live away from the husband. This was due to the stigma attached to separation and divorce, which attached more to women than men in the Indian society, she did not wish to permanently leave her husband. Even though the case went in favor of the man, the court upheld suits for restitution of conjugal rights as serving a special function in preventing the breakdown of marriage and read down the T Sareetha judgment on the grounds that cohabitation does not necessarily mean intercourse. However, we must ask ourselves if men are not punished for raping their wives, how meaningful is the distinction between cohabitation and sexual intercourse? I would say it is entirely meaningless.

Herein lies our dilemma: on one hand, we have wives such as T Sareetha, who do not wish to cohabit with their husbands and are forced by decrees to do so. On the other hand, we have women like Saroj Rani, who fear the stigma attached to being abandoned in the Indian society and seek to return to their marital home, having no tool other than the doctrine of restitution of conjugal rights to affect that return. Given that our listeners are aware of the recent Delhi high court’s marital rape exemption resulted in a split judgment and failed to strike down the marital rape exemption, I argue that it is far more important to protect women from rape within the marriage than to protect them from a social stigma of a failed marriage.

Lastly, even if the marital rape exemption is removed, I hope that the current public interest litigation that is challenging suits for restitution of conjugal rights in the Supreme court at the moment is successful because I think, and I’m sure that Laura also agrees with me, that whether man or woman, no one should be forced to live with their spouse against their wishes. However, this needs to be accompanied by eliminating any remaining attractiveness for Indian women for such suits by legally strengthening maintenance provisions so that they do not need to rely on the restitution of conjugal rights. Also, by socially working to remove the stigma of failed marriages, we can render suits for conjugal rights invalid and also unattractive so that the remedy becomes meaningless.

Ajitesh: thank you so much Kanika for your insights. Now, this brings an end to my questions. Before concluding, does any one of you have anything to add for our readers and listeners?

Laura: I would like to say thanks for being on this podcast. It was nice to talk to you about our work and I enjoyed this recording. We wanted to say that our article for the Indian Law Review that we had been discussing today is open access. We know how difficult it is to access articles in India and in many places including England as most articles are behind paywalls. This is problematic for people who are not affiliated with universities or working with academia. Anyone can read our article in the Indian Law Review, so if anything we said today sparks your interest in this topic, then please do go ahead and read our full piece. Thank you.

Kanika: Thank you so much for having us here, Ajitesh.

Ajitesh: Thank you so much Laura and Kanika, I’m sure your piece in this recording will help listeners to have a deeper understanding of feminist discourses in India. It was an amazing and enriching experience for me to have this talk with you. Thank you very much. I’ll be ending the meeting. It was a pleasure having you with Law and Other Things.

Kanika: Our pleasure too, Ajitesh. Bye!

Laura: Bye!