Locating Consent: The Social and Historical
Contexts of ‘Choice’ in Marriage
Uma Chakravarti

Section I
    One afternoon at a seminar on mapping gender in Colombo in 1999 Kumari Jayawardena, who had been fairly silent up until then, suddenly began to liven up the proceedings by recounting how she resolved a dilemma about being appropriately dressed for a conventional wedding she had to attend. Explaining that since she did not invest too much in the institution of marriage her normal reaction to weddings was to not attend. However this one was of a very close relative and so she could not get out of it. In the course of this anecdote about how she designed an appropriate outfit, leading to much laughter, she dropped a sentence that has stayed with me because it describes marriage so very aptly-- as an occasion when a man and woman come together to reproduce the nation. It is that now but in times past it was to reproduce the family, caste and community and it continues to be all of this even now. It is well to remember that especially in Asia and more so in south Asia from which I will draw my understanding of the contexts of women’s choices in marriage.
     A text from south Asia states quite succinctly what marriage is about: One should marry a woman whose virginity is intact, with auspicious marks, not previously wed to another, younger than oneself, not of the same gotra and pravara, not diseased, possessed of a brother, from a great lineage but not from one afflicted by a hereditary disease however wealthy it may be. The groom too should be endowed with these qualities, he must of the same varna, [and] his potency diligently tested….     Yajnavalkya Smriti1

An anthropologist, who has explored the normative structures of marriage, writes that certain violations of the norms nullifies the act of marriage because wifehood cannot arise in such cases. And the purpose of wifehood is to procreate; reproduction therefore is at the heart of legal notions of acceptable unions2, and reproduction has historically been a social act rather than an individual act. It is also inextricably linked to the political economy of communities and the ways in which these communities organize themselves as well as reproduce themselves.
Feminist research since the seventies and eighties of the last century has attempted to outline the longstanding structures of reproduction, including the reproduction of caste and class hierarchies which has necessitated a tight control of women’s sexuality in particular, but also of all segments of the population. Property structures and the imperatives of patriliny, and the endogamous marriage system to pass on the substance of caste blood have thus shaped the marriage and kinship systems of south Asia. The exchange of women is therefore a highly structured act.  Further, given the relationship between caste and class and the consequent links between control of property among certain castes and the relationship to labour of other castes who are/or have been, denied of access to productive resources, and the centrality of gender structures in reproducing the map of inequality into the future through the prevalence of the endogamous marriage system, the exchange of women must perforce itself be tightly controlled.  A woman’s sexuality is both ritualised and bounded. For an acceptable reproduction, marriage must be within the group that seeks to reproduce itself in terms of status and control over property. The norm in south Asia where hierarchies are not simple but elaborate legitimate reproduction requires that women are formally passed on by fathers to husbands. This is explicitly stated to be the best kind of marriage in early texts and is now the norm in caste society. The structures of production and reproduction determine decisions in marriage.3
    The political economy of marriage in the context of class and caste are accompanied, or rather overlaid by the ideological norms on marriage which are in turn embedded in notions of culture, tradition and social constructs of honour which must be upheld by families to retain their status and their social power which are deeply gendered. Since women’s sexuality is a resource, a form of property, the honour of the men of the community is constructed as being contingent upon guarding this resource till it can be acceptably disposed.  Marriage was a sacrament where the question of consent was in a sense irrelevant. When anyone, but specially a woman, acts autonomously and or asserts choice the entire edifice of the caste and class system is disrupted; such choices therefore represented a dystopia that meant an end of the social order according to traditional ideologies. Desire, choice and love were separated from the institution of marriage which was about social reproduction and not about individual needs and their fulfilment. (These, however, could be provided for through arrangements, always along an axis of gender—permitted for the husband and banned for the wife.) Marriage was a duty and that duty required the observance of a strict set of rules. It is therefore not surprising that oral literature and medieval tales in south Asia were rarely of romances that could end in marriage but of lovers who literally died for love. Love was doomed more often than led to a ‘happily ever after existence.’ The structures of production and reproduction were quite stable. Only the monastic order provided an exit from this tight structure but it was required that the world of production and reproduction were explicitly renounced by the renouncer. This alternative society was supported by laymen and women who themselves continued to enact their specific roles/duties and thus perpetuated the very system that the renouncers had left behind.
 
Section II
The gradual development of colonial law in the 19th and 20th centuries unwittingly produced certain tensions in this fairly stable structure. In this section I will explore some of these tensions through selected legal acts, the discussions around them and the arguments in cases where consent figures implicitly or explicitly, as well as in judicial pronouncements. What this exercise will suggest is that despite unprecedented changes introduced by British legal policies in the legal field, questions of marriage and consent were never centrally addressed.  But, they worked around, and the structures of reproduction in south Asia were not disrupted in any significant way. And yet there were reverbrations that led to more sustained interrogations in the post independence period.    
      At the heart of the contradictions that emerged with British Indian administrative law with respect to marriages in most of south Asia was the custom of ‘infant marriages’ or child marriages which were a euphemism for pre-pubertal marriages with respect to girls, linked also to marriages for the upper caste Hindu girl being considered a sacred union. Sacramental marriages in turn did not require consent of the marriage partners to establish it as a valid marriage, unlike Islamic law which was a contract and required the parties to explicitly state their consent to the marriage.   In practice, according to custom it was the right of the agnatic kin to give the girl away in marriage across communities in south Asia. The courts of Bombay and Madras held the view that the marriage of Hindu children was an arrangement between parents, and the children themselves had no volition. The order of those who had to give the girl away in marriage was her father, paternal grandfather, elder brother, kinsmen and finally the mother. Further since marriages were a sacrament in the case of Hindus, once performed even if the boy was an ‘idiot’ or a ‘lunatic’ (and by implication incapable of performing or consenting to his obligations in marriage), it was valid.  
     The Widow Remarriage Act of 1856 first pointed to the difficulties of locating consent in the context of marriage. It stated that if the widow who was being remarried was still a virgin, i.e., if her marriage was unconsummated only her agnatic kin could give her away into a second marriage.  If however she was of full age or her marriage had been consummated even though she was a minor in the legal sense of the term, ‘her own consent was sufficient to ‘constitute her marriage lawful and valid.’ It was a girl’s virginity that was the ‘property’ or resource of her male agnatic kin; once it was used or when she was legally a major she was capable of providing consent to disposing of her sexuality.
    A significant arena of ambivalence, tension and perhaps even contestation during the colonial period deeply impacting women’s lives was the newly constructed legal notion of ‘consent’ which came to underpin the law on rape and by extension on marriage.  Although the legal notion of consent is neutral and could apply to both men and women—as for example in the context of a contract to buy and sell between majors—in a specific sense it came to congeal around women in a deeply gendered way.  In India it entered the public sphere in 1861 when the first Age of Consent Bill was passed making 10 the age of consent in the case of girls for sexual intercourse even within marriage.  The relationship between ‘age’ and the capacity to act autonomously, and act with discretion, which defined the legality of a contract, was in the context of marriage in India never a factor in the legality, or otherwise, of the marriage given the marriage system.  For a variety of reasons, as outlined earlier, marriages were in the past, and continue even today, to be arranged.  Further, because of the widespread prevalence of child marriage the question of consent between the partners in a marriage could never actually be located in the partners themselves but in the fathers/ brothers/ guardians of the bride and the groom. Tensions between a formal age defining the capacity to act with discernment and make decisions for oneself in relation to marriage can be seen in the clauses of the Age of Consent Bill of 1861.  The colonial state devised a legal difference between the age at which marriages were legal and the age at which sexual relations within marriage was legal. While marriage could take place at any age, the age at which sexual access to the girl was regarded as legal was fixed at 10.  Since ‘infant’ marriages were the norm in south Asia, and girls were therefore incapable of giving ‘intelligent consent’ to sexual relations, and husbands and perhaps fathers could not be trusted to protect the girl-wife against physical harm the colonial state took it upon itself to, in a sense, ‘protect’ consent on her behalf at a fixed age.  This provision introduced for the first time the possibility of rape within marriage, a point that became much more highlighted in the 1890’s when the age of consent was raised from 10 to 12.4        
But before we get to the controversies of the 80s and 90s, we need to examine the consequences of the passing of the ancestor of the Special Marriage Act we still have in place.  This was perceived by many as opening up the possibility of acting outside parental choice and making inter-caste and inter-community marriages, and thus circumventing the norms of endogamous marriages: in a sense it recognised asserting consent as a matter of choice of the marriage partners rather than made on their behalf by parents.5  
    Act III of 1872, which introduced civil marriage into India was a significant stage in testing marriage practices in south Asia. This law was merely to be ‘enabling’ and was intended to make marriages between various communities among the Brahmos, the reformist group of Bengal, legal. As it turned out it had much wider application and generated extreme anxiety from caste Hindu society as it made possible marriage across caste, and across religious communities. Most importantly it was registered as a legitimate union between two consenting partners without needing the sanction of the families of the couple. It also introduced the notion of a ‘love-marriage’ into public debate, a notion that has still to work itself out in terms of marriage practices in India: under it theoretically any two Indians could “legitimately marry out of choice and love rather than by dictates of birth.”  As the debate around this proposed law unfolded—it had three versions before it was enacted as law—it became clear that there was violent dissent from many quarters to the legitimation of love unions through state sanctioned and legalised marriage. The import of this move was understood by the debating public which was unwilling to admit agency on the part of the couple and the privileging of the individual over the social. For them agency was to be located only in the community and therefore any move towards weakening the hold of the community generated a range of responses, from moral ambivalence to extreme anxiety about the survival of caste hierarchy. It was perceived as unnatural (caste on the other hand was natural) and an attack on maintaining the class, status and the standing of the families concerned. Among the responses to the proposed Act was the view that “native society would never countenance a state of affairs in which distinctions of caste and creed were threatened.” Petitions to the government against the proposed Act played on the notion of brahmanical purity and hierarchy, and the challenge to such a law was mounting against authority. Inter caste marriage was looked upon with hatred and it was argued that the children of such a union would be regarded as bastards. One opponent went on to celebrate the rigidness of caste, “ India as she now stands is proud of her unmixed blood which would scarcely be found in any other part of the world.”  Further, “the chastity of her women is proverbial,” he boasted. Indian women were also extolled “as reproducers of moral communities” and as upholding the pure traditions of the land, a situation that was now bound to be corrupted. The dangers of inter caste marriages and its impact on the caste system was such that an honorary magistrate Lachmi Narain wrote passionately to the government, “parents would rather kill her in her cradle than allow her, when of age to disgrace her family.”
It was this outraged sentiment that built within its provisions to ensure that eloping couples did not get the chance to marry undetected.  The minimum residence period of two weeks before and two weeks after, rather than the original 5 days was a concession to the strong reactions to the proposed Act.  (In post Independence India the period has been raised to one month before and one month after).  Such modifications made it impossible for a couple on the run to sustain themselves for the requisite period without being found out and thwarted by the families.  Finally, when the Act came into operation with its modifications in the minimum age for the girl (which was raised from 18 to 21) and an increase in the residence requirement, the process of criminalising the love marriage by public opinion was well underway and it has remained that way ever since as a later section will demonstrate.6  This is made possible through surveillance of the couple, but particularly the girl which is always possible under the residence requirement, and disputing the age of the girl as under the age stated in the Act. Additionally, the husband can be charged with abduction, and with rape. The girl can on frequent occasion be charged with abetment to her own abduction! All this to prevent a “love marriage” from being legalised.  In the post Independence period one can see all these contradictions further exacerbated as social, economic and political changes have introduced fresh complications in marriage structures in south Asia.    
Other tensions and contradictions that the British administered laws introduced into the notion of consent in the context of sexual relations and marriage hit the public arena in the famous case of Rakhmabai.  A brief account of the case is in order before we can proceed to the dilemmas it generated for the British, for the emerging middle classes, and for women in particular.
Rakhmabai, a sutar, was married to Dadaji, also a sutar, (the sutars were carpenters, and came to play a role in the house construction business in the urban areas like Bombay as opportunities opened up) at the age of 11 according to the contention of her family and 13 according to the contention of Dadaji’s family. Rakhmabai was the sole heir to considerable urban property as her father had died willing the property to her. Her mother was remarried to a doctor, who was well known in the circle of social reformers.  Rakhmabai was educated and for the first few years of the marriage Dadaji lived in the house of Rakhmabai as a ghar jawai—a resident son-in-law, with the consent of both sets of families and was sought to be educated by Rakhmabai’s family. Throughout this period the marriage was never consummated. After about eight or nine years he went back to live with his mother and uncle and sought to have Rakhmabai come to live with him. Rakhmabai refused to do so on the ground that he could not support her, was consumptive, and lived under the authority of a person with questionable morals. Thereafter Dadaji moved the court to seek ‘institution,’ or restitution of conjugal rights, which had been introduced into Indian law in the 1860s,  the plaint was that Rakhmabai should be ‘ordered’ by the courts to go and live with her husband.
A crucial issue that came up in the course of the arguments was the question of consent.  Rakhmabai used the argument that she had not consented to the marriage as she was married when she was still a legal minor while the plaintiff’s side argued that the issue of ‘personal’ consent was immaterial on the ground of infancy in Hindu law because under Hindu law girls were to be married before puberty.  On the basis of the submissions the judge held that he could not compel Rakhmabai to go and live with her husband, and forcibly consummate a marriage which she did not want to do in order to complete a ‘contract’ entered into by her guardians, on her behalf, while she was of ‘tender’ age.
Dadaji appealed against this judgement and the matter went into appeal.  Among the arguments that came up at this stage was the anomaly of introducing the restitution of conjugal rights, which drew its principles from British ecclesiastical law where marriages were based on the ‘free consent’ of the partners. But the more serious dilemma was the one faced by the court of appeal at a moment when the press and the middle classes in India had dramatised the case: if consent was defined as intelligent consent freely given, as Macaulay had intended when he drafted the Indian Penal Code which could automatically push up the age to 15 or 16 then all Hindu marriages would become invalid as they were predicated on the pre-pubertal requirement of marriage—that is on the marriage occurring during what was described as ‘infancy.’ If the court denied conjugality to the husband on the exercise of volition by the partners, on the ground that the wife had not consented, then no Hindu marriage would stand. Consent and pre-pubertal marriages were mutually contradictory; the law of the land it was emphasised did not require the girl—in whose case the taking of consent was an ‘impertinence’; the bride was the subject of a contract not a contracting party herself, it was argued. The court was therefore forced to uphold the legality of non-consensual Hindu marriage as it existed in the 19th century and order the imprisonment of Rakhmabai for her failure to effectuate her marital obligations. Ultimately a compromise was worked out as Rakhmabai ‘bought her independence’ from Dadaji for the sum of Rs. 2000.
The judgement, although it satisfied the conservative lobby which welcomed the imprisonment order with jubilation, was both an embarassment to British judicial practitioners and was viewed as an outrage by Behram Malabari who had already begun a campaign both in India and England for an end to ‘infant’ marriage. He argued that Hindu marriage was a sanskara—a sacred rite—only when women gave intelligent assent to it. Otherwise she was as little a party to the marriage as the judges were to it. The British government was accused of functioning in the triple capacity of marriage broker, policeman and jailor in forcing Rakhmabai to act against her will.
Others argued that no marriage among Hindus was complete without consent although it might have been lost sight of in practice.  The question of false and forced consent as a fundamental facet inhering in contemporary Hindu law thus became quite apparent in the public debate, and in the judgement.  The whole issue of non-consensual marriages and the rights of husbands over their wives within them were severely tested in the Rakhmabai case but stood as far as judicial practice was concerned.  Further it was recognised that the Hindu matrimonial structure would collapse if the community was unable to use social coercion against the parties or the state were to hesitate to uphold the sanctity of Hindu marriage.  And finally the whole question of consent of the girl to a choice made on her behalf by her parents and being forced to accept that choice was thrown into bold relief by a restitution of conjugal rights case.7
The Age of Consent controversy of the 1890s was an extension of the problem of the non-consensual Hindu marriage.  When a young girl of 11 Phulmoni, bled to death following sexual intercourse with her 35 year old husband the British government decided to raise the age of consent from 10 to 12 for girls; under the age of 12 if a man had sexual relations with a woman even if she was his wife it was to be deemed rape. What is notable is that it was not the age of marriage that was raised but the legal age for a woman to be regarded as a consenting partner for sexual relations whether married or not—otherwise it was rape.  This was an extension of the principles underlying the Age of Consent Bill of 1861.
The Age of Consent Bill of 1891 was the most fiercely fought issue between the colonial government and upper caste men who formed the spine of what is regarded as the nationalists in the 1890s led by Tilak.  In Bengal it was a moment to close ranks against any form of social reform and treat the household as a private sphere which must be guarded against invasive colonial legislation; Hindu conjugality necessitated sacred obligations and was above individual rights.      
Significantly the debate on the Bill also subjected the woman’s body to the most critical gaze in the public sphere as issues of female sexuality, the medical development of a woman, age of puberty, and her preparedness for sexual intercourse and reproduction were bandied about in the press. The problem of locating consent—female consent—was particularly acute: was it to be puberty which varied widely, or a fixed age for all women, or the age of discretion? What was the relationship of women’s consent to marriage? Could there be a relationship at all given the marriage arrangements in Hindu families where fathers or other male guardians decided the marriages of their off-spring.  Why was Hindu marriage non-consensual in the first place both according to law and custom? Regardless of the passage of the Bill the problem of women’s consent continued to elude a decisive location in a woman’s autonomy to decide for herself in matters of marriage and sexual relations.  It is not surprising therefore that in terms of the law elopements could be presented as ‘abductions’, and women could be regarded as ‘accomplices’ in their own abductions.  Communal fears increased these contradictions where widows who were forced to remain celibate often eloped with men, sometimes Muslim men; the agency of women, or their own oppressions as widows could not be recognised as factors in which widows might ‘choose’ to elope and therefore such cases would have to be ‘recast’ as abductions. There was thus a convenient intersection of female consent and abduction in dealing with elopements in interpreting patriarchal power in the field of marriage. These legal categories and situations have continued to be an important dimension of marriage in post independent India too, as we shall elaborate in the next section.
It is also well to remember that throughout the colonial period at no point was the marriage system and its relationship to caste ever addressed as a central issue; only Rakhmabai, herself the victim of an non-companionate marriage which was not regarded as a privilege women were entitled to, referred to the relationship between caste and marriage—but that too obliquely. She wrote anonymously to the newspapers on the problems of child marriage and enforced widowhood, and stated that the difficulties in the marriage system were exacerbated by the fact that the caste system forbids intermarriage, suggesting thereby that women had no choice in finding suitable partners as the boundaries of caste circles had to be maintained.8  Many factors kept the caste system and endogamous marriages out of the purview of serious discussion in the public sphere including a benign face that was given to caste and endogamy. Maintaining boundaries between different castes for example was treated by the erstwhile radical Annie Besant and firebrand ‘Indian” nationalist who wrote:

Manu provided the most orderly and perfectly arranged code for India.  His social organisation of caste was based on the recognition of different types of human beings. India no longer needs caste but endogamy was a way to ensure that the Aryan minority was not swamped by an aboriginal majority. Heredity was a means by which specific types of individuals were built up.9

But keeping caste going was not merely a matter of benign ideologies. We must also remember that the powerful means of disciplining individuals through excommunication by the caste to which an individual belonged was a very effective way of sustaining and enforcing the practices of caste and endogamous marriages.
Towards the last few decades of colonial rule the government finally legislated directly on the age of marriage in 1929 in the Child Marriage Restraint Act and did not confine the legislation to the age of consent for sexual relations. The age of consent for legal access to the female body remained an explicit issue however in the rape laws and remains an implicit issue in marriages of choice as we will see.

Section III
In the newly independent states of south Asia questions of individual rights, including those of women and the deeply entrenched marriage practices which continue have thrown up further tensions. The secular constitutions of these nation –states have made women the bearers of rights even as in practice these rights are violated continuously and in a variety of ways. The constitutions have also made equality before the law a principle which should legally free women from the control of families, caste groups and communities.  Property laws too have been changed such that women have better rights to property. The practice of caste discrimination too has been made punishable by law.  And yet both caste, its relationship to class and productive resources and endogamous marriages that perpetuate the structures of production, and reproduction, remain fairly undisturbed by the package of constitutional and legal changes.  It is the tension arising from these two contradictory situations that needs to remain in context when we look at the undercurrent of violence in marriage practices.  The tensions which spring from material conditions are overlaid by taking recourse to the argument that families and communities are seeking to preserve their cultures and traditions and therefore there is resistance to changes in marriage practices.  A wide-ranging consensus, a kind of social compact, has set such an understanding in place and we need to break that consensus to examine what this violence is about.  Honour and izzat are embedded in the structures; they are ways by which the structures are sought to be reimposed in a complex situation where multiple factors are at work.    
    To begin with we need to have a discussion of Honour or izzat as it is known in parts of south Asia. Izzat is a wide-ranging concept, very masculine because even women of the upper castes cannot evoke izzat outside of how it is perceived by the men of their families or communities. Further, action to uphold izzat is always a male preroragative: women may only ‘incite’ action as they are reputed to have done in the many recent cases in India. Izzat, or sammanam or honour is a term that I am personally deeply uncomfortable with even when, as feminists, we may put it in quotes to distance ourselves from it. The very use of it implicates us in the meanings attributed to it by a patriarchal discourse and its symbology. Since violence is sanctioned as a way to uphold izzat the use of the term masks its real meaning for those who experience the violence. In actuality, as we will see below, the concept of honour in punishing those who are seen to ‘defile’ it is in essence a means of maintaining the material structures of ‘social’ power and social dominance.  This, as we have argued, is a complex formation of maintaining control over land, status, and women’s sexuality intact. Social power then is located at the intersection of material power or class, status based power or caste, and power over women or patriarchy as they work together. The concept of dominance and dominant caste have unfortunately been treated as gender neutral categories but they are in actuality deeply gendered and deeply permeated by patriarchal codes. I must emphasise that while class and caste have been seen as making for social power, patriarchal power has not and needs to be recognised for what it does to the whole structure of hierarchy in India. But before we turn to the ways in which this power is being viciously manifested in parts of the sub-continent we need to look at how ‘honour’ appears in its apparently ‘neutral’ and sanitised manifestation and particularly at the meanings attached to it by women.   
The notion of Honour/izzat in the sub-continent:
Honour is one of the most valued ideals in the sub-continental patriarchies whether Hindu or Muslim. Most communities pay constant attention to gaining and maintaining honour.  In general, honour or prestige—izzat—is measured by the degree of respect shown by the others.  No matter how much honour is ascribed to their particular caste individual families can gain or lose honour through money and power.  But since all families do not have money or power other aspects are also critical.  A family can gain or lose honour through proper or improper behaviour—most critically through the behaviour of its women.  In sum actions that are appropriate, or according to the dharma, maintain the purity and honour of the family, lineage, or caste whereas actions that are inappropriate defile the honour and purity of the caste, family and lineage.  Thus, because the purity of women is crucial to maintaining the blood purity of the lineages but also the position of the family within the wider social hierarchy, women are seen to have a special place in families.  Women are the repositories of family honour-- of their own family as daughter, and of their husband’s family as a wife and mother. ‘The prestige of the family is in the hands of its daughter’ is a common saying and oft repeated to girls by the parents and to married women by the in-laws. The implication is that if their conduct is dishonourable, women can ruin their family forever.  The concept of honour serves as a link between the behaviour of an individual woman, and the idealised norms of the community.  By constantly evoking the twin notions of honour and dishonour, families either condition or shame women into appropriate and inappropriate behaviour.
This somewhat benign notion of izzat along with women’s own stakes and therefore their complicity in the material and social power of their communities, for those who have access to such power, creates the conditions for upholding the normative codes of their families and communities. Even those women who occupy the bottom rungs of the social hierarchy, and do not necessarily derive material benefits from their place in the social structure, share in the cultures of their castes and communities. They too have codes to uphold and marrying an appropriate partner which negotiated by male kinsmen is as much an aspect of their lives as it is for other women. The endogamous marriage is ubiquitous and is practised even by non-Hindus, as many such communities also practice caste and status differentiation.10
    This intricate web of social, material and cultural factors, which require the specific marriage structures that operate particularly in the caste-based societies in India to perpetuate the hierarchical systems in place, are deeply threatened by ‘love’ between partners as the basis of marriage. Once this is conceded as a principle, reining in the choice to suitable partners from within an acceptable circle becomes difficult. Elopements then are a way to demonstrate  ‘love’ or ‘choice’ as families actually prevent or are seen as preventing these marriages from being made. This is the ground upon which the ‘criminality of marriage’ is played out in India, as the work of Prem Chowdhry, Pratiksha Baxi and Parveez Mody shows, and elsewhere in the sub-continent as Neelam Hussain’s work demonstrates.11  The classic pattern is that the elopements are contested by parents, especially of the girl.  Invariably the girl’s age, i.e., of her being incapable of granting consent and as being still under the custody of her guardian—is brought into question.  Parents file complaints against the husband charging him with ‘abduction’ or of seducing the girl away from her lawful ‘custodians’ and the ‘love’ marriage, often surreptitiously entered into, is criminalised in order to nullify the marriage. Abduction could also be accompanied by charges of rape if the girl’s age is stated as under 18, the legal age for a woman to be able to exercise consent and contract a valid marriage. If the marriage is hypogamous, i.e., between a high caste girl and a low caste boy it will almost certainly be contested and criminalised; the whole weight of the police and even of the legal system works to uphold the cultural codes of marriage. There is widespread ‘consent’, in the sense in which Gramsci outlined it, within civil society to regard choice, particularly when articulated by a woman, as disruptive of the whole social order: This creates a major anomaly. While the weight of new social forces celebrates, at least notionally, freedom of choice in buying, selling, and in the political system—freely elected parliaments, freely elected heads of state and so on, “whenever an innovation has to do with free choice of partners involving women, the whole social fabric seems to suffer a terrible tear.”12  The criminalisation of love is to be seen as a response to such disruptive actions on the part of women.    
The process of criminalising love is apparent in the cases recounted in the box here. 

In Pursuit of love
This is the story of a love affair between Chetna, a young Patel woman in Ahmedabad and Roshan a Prajapati, a young scheduled caste man, who lived in the same neighbourhood.  Chetna was only 17 and therefore still legally a minor when her mother chanced upon a letter written by Chetna to Roshan which made her feelings for him explicit. Earlier Chetna’s parents had tried to break up the relationship between them. Angry at her daughter’s ‘recalcitrance’ the mother threw Chetna out of the house and Chetna promptly went to Roshan’s house.  Even before Roshan could persuade her to return Chetna’s mother filed a complaint and accused her of stealing jewellery. Her mama (uncle), accompanied by his sons and a number of young men, arrived at Roshan’s house, beat him up and demanded that Chetna should return.  They also threatened to abduct Roshan’s younger sister, who hid herself, in retaliation for abducting their sister. Chetna stood her ground and refused to go.  The mama and his troop left but soon afterwards the police arrived, acting on the complaint of the mother who charged Roshan with abduction, with the motive of having illicit sex with Chetna; Chetna was charged with decamping with valuables from the house.  Both Roshan and Chetana were taken into custody and beaten in the police station; they were also sent for a medical examination and bodily samples were sent for a forensic examination which ‘established’ that Chetna was still a ‘virgin.’ Roshan was arrested and secured bail a week later. Chetna was also arrested, and first sent to the Central jail and then to a remand home till she was 18.  She sat for her 12th class exams from the remand home.  Nine months later the police moved the court to drop the charges against Chetna.  After she turned 18 and the charges against her were dropped she married Roshan.  By the time the case came up for hearing on the complaint against Roshan a couple of years later they had a small baby.  Her mother then changed her stance and agreed to a ‘compromise’ by not pressing the charge of abduction and rape against Roshan and suitably amending her story in court.  At least in this case the story turned out to have a ‘happy’ ending but in the meanwhile both Roshan and Chetna—who was only 17-- had been arrested, beaten, and subjected to an invasive medical examination to rule out rape. All because the relationship was across caste—in fact it was transgressive because it was a pratilomic relationship, as the girl was from a higher caste, and the parents of the girl were opposed to it.  It was regarded as a criminal connection according to caste norms though perfectly legal according to the 1956 amendments in the Hindu law.  Since it could not be criminalised according to the extant marriage law other criminal clauses were used to criminalise the relationship.  The residue of what the young couple suffered haunts their narrative.  Death executed by caste panchayats may be the worst articulations of violence related to inter-caste marriages but there are other and deeply scarring dimensions of violence in the manner in which inter-caste marriages are punished which go unnoticed by us.13 

Love Denied
A not so happy ending to a similar romance between a Jat girl and a dalit boy of Narela was aborted after a legal marriage some months later.  The couple had eloped and were untraceable for a few months while the girl’s father, who had connections in the police, filed a case of abduction charging the dalit boy and his family of abducting the girl who he claimed was under 18.  The police picked up the boy’s brother for questioning and beat him up.  The brother then tried to mobilise women’s groups, civil liberties groups, and the press to stop the harassment and make it possible for the couple to return to Narela.  The boy’s family circulated evidence of the girl’s age by attaching her 10th class certificate—widely regarded as an authentic proof of age for purposes of official records such as obtaining a passport or getting admission into college.  A marriage certificate at an Arya Samaj temple and a statement by the girl of having chosen to marry the boy of her own free will, and that she had not taken anything from the father’s house when she left it to get married, were also appended to petitions to various fora to intervene in the case.  The way the documents were assembled suggests that the couple were seeking to pre-empt the standard charges against runaway couples who are pursued by their families.
    It was at this point that I got involved in the case: another democratic rights activist and I went to the Police Commissioner’s office in New Delhi.  After a long wait at the office we finally got to meet the officer that we had been asked to see in this case. The response of the police official was to bark at me—I was the older of the two of us and could have had a daughter who was of the age to elope: ‘why are you pursuing this case? If your daughter had done such a thing as this girl has you too would have pressed the same charges.’ He was talking about a shared set of ‘norms’ that regarded such a marriage as ipso facto criminal.  When we referred him to the girl being legally a major he went on to dismissing the 10th class certificate as worthless; everyone knew how easy it was to fraud anything in this country.  The only foolproof evidence he was willing to accept was a bone density test for the girl to undergo in order to establish her real age and nothing else! 
    We then went to the SC and ST Commission.  We got a more sympathetic reaction here but there was really nothing that they thought they could do—there were hundreds of cases of violations of all kinds that they were confronted with. In the meanwhile the father’s influence worked; the couple was located and by the time she was presented in court she had apparently been coerced into conforming to parental pressures. Cases are still pending in court instituted by the husband for the custody of the wife who appears to be under house ‘arrest’ by her parents.  Like hundreds of other such abortive ‘love’ marriages, the endogamous marriage is still the norm, the father still decides for the girl (and the boy too), even as the edifice of such marriages are occasionally interrogated by young men and women in pursuit of self choice.  
While the police and the courts may not overtly strike down the ‘choices’ made by women in the context of marriage they subvert the legal provisions governing marriage through the ‘great universals’ in the unwritten codes to which they subscribe: ‘morality’, ‘family’, ‘filial obedience’ as seen in the context of religion based traditions and notions of ‘cultural identity.’ Occasionally the honourable judges may also indicate that consent in India was never meant to apply in reality to the partners contracting a marriage: A judge of the Madhya Pradesh High Court observed even as late as 1992—and this sentiment would be widely shared even today: consent in the context of a Hindu marriage includes a consent “to marriage given by a spouse through his/her parents, elders in the family, and other friends and relatives.”14  Although this judgement suggests the validity of consent on behalf of the partners by parents as one of the acceptable ways of locating consent, in reality this is the only notion of consent that operates in the minds of most people.  A valid marriage in India that practices caste remains one that is negotiated and contacted by the parents on behalf of the actual partners in it.     
    In the above discussion we have outlined the violence and uncertainty experienced by some young couples for forging socially transgressive alliances in the urban areas. However in the examples cited above, the violence though reprehensible falls short of actual killing although these do occur even in cities. Both in cities and in rural areas social transgressions are also perceived as tempered by caste and class hierarchies such that when an upper caste/class man desires a lower caste woman, and rapes or seduces her, the act is regarded as violative of the caste norms of permitted sexual relationships, but is accepted or even naturalised. Feminist research has shown that,
Dalit women’s bodies are seen as collectively mute and capable of bearing penetration and other modes of marking by upper class/caste hegemony without the intervening discourse of desire because of the over determination of this violence as ‘caste privilege.’15

While in recent years mobilisation by dalit and Naxalite groups has focussed attention and created the basis of resistance on the issue of rape, or the abuse of the lower caste woman’s sexuality, i.e., on the naturalness of this ‘privilege’ there is no vocabulary as yet by which the lower caste man who desires an upper caste woman, and who in turn desires him, can express this publicly.  Certain modes of desiring are prohibited and have been regarded thus from the time caste itself is referred to in the Brahmanical textual traditions.  The very mention of such a possibility can lead to violence: thus a statement made during a speech after the murder of a dalit woman that dalit men should seek brides from the upper castes let loose a wave of repressive violence in which 30 people were killed.16  There is thus a close connection between caste, desire, and patriarchy which undergirds the possibility or impossibility of love and marriage in caste society.  The nature of caste-related violence also points to this connection.
Given these structures of love and desire when the lower caste man dares to fall in love or enter into a relationship, or elope with and marry a higher caste woman he is thus still subject to the collective power of the upper castes who will stop at nothing to punish the transgression. The last few years have witnessed a spate of brutal killings of such couples.  Since a woman’s sexuality is still under patriarchal and caste control, and still requires to be formally transferred from father to husband, these killings have the explicit consent of the community, especially that to which the woman belongs.  Thus while the lower caste man is killed, even the ‘erstwhile’ daughter (who loses her status as daughter through her transgressive relationship) of an upper caste household is regarded as someone who must die for her sin of violating the pratilomic codes of marriage.  Both men and women of the upper castes uphold this gruesome ideology of ‘private’ justice, or rather retribution, to deal with ‘errant’ couples who violate the norm of endogamy—no matter what the law says about the legality of such relationships.  This brutal and informal application of the death penalty upon young people is yet to receive the serious attention of human rights activists in India although it has been the basis of a campaign in Pakistan.  It is only in the last few years that interventions are being made by AALI a legal group in Lucknow, the AIDWA in north India, especially in Haryana, and the PUDR, a Delhi based democratic rights organisation.  These interventions need to be supported by women’s groups and civil rights groups across the country. 
What is now routinely called ‘honour’ killings (both in south Asia and among South Asian feminist groups in the United Kingdom) first hit the headlines in a big way in India with the Mehrana killings in 1991. Roshni, a Jat  (the dominant caste in western UP) girl of the village eloped with Brijendra, a Jatav boy regarded as a low caste in the region, assisted by his friend.  All three were caught. The Jat Panchayat sat all night and passed a judgement on the ‘errant’ couple and their friend: under its decree they were tortured all night, hanged in the morning, and then set on fire.  The entire village is said to have witnessed this brutal murder. When the story broke and the press came to investigate the villagers both men and women, including family members of the girl defended the action on the ground that it was necessary to restore the violated ‘honour’ of the family and the community.  Even Jat peasant leaders regarded the ‘punishment’ as justified.  Needless to say no male political leader of the country publicly condemned the killings—or scores of other similar cases.  It is as if a woman who is regarded as violating sexual norms of their caste is not a citizen of the country and entitled to the right to life that the constitution of India gives to all its citizens. In other cases the punishment meted out extends to those who may extend support to the ‘transgressing’ couple: for example a dalit woman was stripped, beaten and paraded through the streets for aiding a runaway couple.  In another case in North India, in a village named Ali Nagar near Muzzafarnagar, a Jat girl Sonu (the region is a predominantly Jat belt) was seen with a Brahmin boy Vishal under a neem tree; they were both killed in August 2001.  They were in their teens and were believed to have been in love with each other, and had been to the same school. Sonu was killed by her father for ‘wrongdoing’ and for bringing shame upon him; he thrashed her, put a rope round her neck and killed her. Once Sonu was killed, Vishal’s brother was called upon to do the same to Vishal and he readily complied. The judge sentenced four people to life terms in 2002 including Sonu’s father and Vishal’s brother. Sonu’s mother and Vishal’s sister-in-law were said to be present when the killings took place. But while no one in the village claims to know anything about what happened—no one from within the village is usually willing to give testimony to such incidents, many will defend the need to punish ‘errant’ couples as Bhopal Singh did in this case. His statements give a clue to the way people think: “people in this village live within their caste. Big people like Indira Gandhi can afford to marry whom they please, but we do not. If something happens to my daughter I will have to do something about it, “ says Bhopal Singh. The judge recognised the deep-rooted prejudices of caste, and said “villagers here consider such incidents as a blot on the social standing of their village.” He upheld the charges against 4 of the men named, let off 8 others and particularly let the women off on the ground that since women’s opinion carried no weight in the panchayat decisions they could not be held to be complicit in the crime. As Pamela Phillipose, who visited the village after the judgement, wrote:

While the local cinemas celebrate Bollywood’s latest essay on young love, under the neem trees of Ali Nagar, deeply entrenched and horrifically cruel caste hierarchies script another story. There, only the pregnant words of Bhopal Singh hold sway: “if something happens to my daughter, I will have to do something. [Indian Express, August 18, 2002.]

    Brutal killing then is the communitarian response to the ‘oppositional agency’ of women who may attempt to renegotiate the traditional boundaries of their lives. Such women are given the ‘death penalty’ with no qualms by their own families and communities. It appears that as the norms of the caste system and its marriage patterns are increasingly disturbed through social changes—upward mobility, caste assertions, changes in the land and occupational structures, and political transformations the virulence with which the control over female sexuality is asserted increases, as these cases show.      
    Two further points may be made before I conclude this part of the paper; I have been struck by a comparison of men and women in relation to taking recourse to the bone density test. In the case of girls it is almost invariably used as a way of establishing the age of discretion or majority to ascertain her capacity to exercise consent when she is asserting choice in marriage or a sexual relationship and her age is contested by her parents. In a recent case it was ordered by the courts to establish the age of a boy charged with rape where the defence was arguing that he was a minor. [Indian Express, 6 December, 2002 & 19 January 2003]. Thus in the case of men it might be used to establish criminal liability in the law, in the case of women it is implicitly being used to establish incapacity to act independently and to establish the criminal liability of her partner. Similarly when one compares the habeas corpus petitions of men and women where the person is asked to be produced in court (as that person is perceived to be in grave danger), it is striking to note that men are in danger of arbitrary actions by the state; the conflict of interest is perceived to be between the family of the victim and the state authorities. In contrast, women in habeas corpus petitions are the subject of disputed control between the natal family and her husband/partner to establish who is entitled to ‘control’ over her—even as legally she is meant to be an individual who is an independent entity and can act as she pleases. Arbitrary actions here emanate from or are perceived to emanate from two sets of men. What is ironical is that a democratic legal provision such as the habeas corpus is actually used to often subvert a woman’s capacity to act for herself. The question then is how and when this situation can change and when and how women can take control over their own lives and actually claim their rights as citizens, which constitutions do enshrine. At the beginning of the new millennium we are still faced with the question: when will women be accepted as rights-bearing individuals and not be regarded merely as culture-bearing icons?       

Section IV
    The right to choice in marriage and the issue of consent has to be implemented within the broadly laid framework that I have outlined above although each of the countries of our region in South Asia will have distinctive and varying features that will make for crucial differences in strategies to be adopted in each country. Among features that are likely to be common is that recourse to culture and tradition by communities, or even by nation-states.  It is a convenient mask, and a very useful one at that, for these same communities and nation-states to reproduce structures of inequality, subordination and control over women especially upon their sexuality in their respective societies. It is useful to remember that there is a material basis for these structures which a controlled marriage system helps to perpetuate. And yet through the recourse to the spheres of culture and tradition the material basis of these structures ‘disappears’ from view; in its place culture and tradition ‘appear’ as autonomous realms with a force of their own to continue in existence. This is also the basis for the norm of heterosexuality being regarded as culturally appropriate whereas alternative sexual orientations are claimed to be culturally unacceptable. The application of force to uphold norms of sexual and marital behaviour and deny choice is also regarded as culturally desirable and socially acceptable.
In this context while constitutions and legal interventions spanning many decades have given individuals the right to choose, to decide upon when, if and whom to marry, in practice it is possible to obstruct and prevent such choices from being made and sustained. Ideologies of family, community and caste as well as the existence of quasi- judicial bodies which can, and do, use their power to punish individuals whose behaviour is regarded as errant make it difficult for choices to be made. The relationship between community law, caste-based law, quasi judicial bodies, and individuals have not been explicitly addressed or dealt with by formal legal bodies; further even the relationship between caste panchayats and the new statutory elected local bodies have not been spelt out so that multiple justice delivery systems are in operation simultaneously. It is not surprising that traditional caste-based institutions have been described as a state within a state. And since these bodies are very powerful in some regions no one wishes to take a stand against their diktats, or even notionally take a stand against them by supporting the right to choice in marriage, which is conveniently regarded as a ‘family’ affair. 
    The survival of traditional ideologies and practices of marriage in most parts of south Asia has also meant that if there is an assumption of choice of partner in marriage by word or deed on the part of a woman it is regarded as a display of ‘irresponsible’ female sexuality. This irresponsibility is enhanced by the dangers to such a woman from ‘predatory’ men who are immediately regarded as ‘seducers’ or abductors since choice itself lacks legitimacy. This danger provides the double rationale for the family or community’s continued control of marriage choices. The police share this perspective especially if the woman is perceived as having made a transgressive choice by seeking to marry a man who is not of her class/caste but belonging to a lower rank.  The family is then more than ever able to use the police to back its own attempts at retaining control over such a woman by making arrests, filing serious criminal charges against partners or their female kin and putting them into custody for long periods of time.17 In practice state institutions thus uphold or reinforce the power of the family and community to make decisions about marriage, even using force because there is an unstated social compact between individuals manning state institutions and families and communities managing the lives and bodies of the younger members of their communities. Given this circuit of relations between the social power of the dominant and their ideologies and between the state and civil society, the commitment of nation-states to implementing article 16 of CEDAW would not be sufficiently serious in much of south Asia. We have yet to witness open condemnation of even the violence women face by any major political or respected public figures, far less can we expect a positive endorsement of the right to choice in marriage. Article 16 is likely to be a low priority issue for the South Asian states in terms of real commitment to change.
Most south Asian states are also post-colonial societies with their particular histories of nationalism strongly pegged on the construction of a pristine culture especially in relation to women. Under processes of globalisation as economic borders open up the rhetorical and substantive attempts to close the national boundaries to cultural penetration is tending to recreate untainted conceptual domains around family and community, even if these are being eroded legally and statutorily in practice. A variety of processes are therefore denying women their status as rights-bearing individuals and insisting that they continue to remain culture-bearing icons.
But there are other possibilities emerging too. As many young people are staking their right to choice in their relationships, and as punitive action and retributive violence is being reported, women’s groups and civil rights groups are beginning to respond to the situation. Civil rights groups have conventionally addressed state repression or state inaction as the responsibility in these cases of violation have been clear; when it comes to civil society, working out whom to address and how to address these issues is always more difficult. Women’s groups on the other hand have long years of practice in dealing with oppressive ‘customs’ and institutions which emanate from civil society. Once we are clear about what we are confronted with we can mobilise democratic and legal strategies to make the choice of partner in marriage more meaningful in the everyday lives of women and men.