XXIV.
1.—“Misread by man ...”
“You say ‘We marry our girls when they reach puberty,’ and you take as indication of that stage one only, and that the least certain, of the many changes which go to make up maturity. It is the least certain because the most variable, and dependent more upon climate and conditions of life than upon any true physical development. No one would deny that a strong country girl of thirteen was more mature physically than a girl of eleven brought up in the close, unwholesome atmosphere of a crowded city, yet you say the latter has attained to puberty, and that the former has not. Into such discrepancies has this physiological error led you. Without going into the domain of physiology for proof of assertion, let me draw your attention to the very practical proof of its truth, which you have in the fact well-known to you all, that girls married at this so-called period of puberty do not, as a rule, bear children till some years later, i.e., till they really approach maturity. I allow that you share this error with all but modern physiologists. Even if marriage is delayed till fourteen, where conception takes place immediately, sterility follows after; but where the girl is strong and healthy there is a lapse of three or four years before child-bearing begins, a proof that puberty had not been reached till then, although menstruation had been all the time existent. Of course there are exceptional cases, but does not the consensus of experience point to these as general truths?”—Mrs. Pechey Phipson, M.D. (Address to Hindoos).
Id. “... sign of his misdeed.”
See Note XXVI., 6.
4.—“... victim to his adult rage.”
Of this, as existent to the present age, abundant direct and collateral evidence is given by a brochure entitled “A Practical View of the Age of Consent Act, for the benefit of the Mahomedan community in general, by the Committee of the Mahomedan Literary Society of Calcutta,” published by that Society, in June, 1891, as “an accurate exposition of the object and scope of the new law, in the clearest possible language, for the benefit of the Mahomedans, particularly the ignorant classes, and circulated widely in the vernacular languages for that purpose.”
The following are extracts from the pamphlet:—
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.