Abstract
The colonial period and the legal regimes that it introduced continue to be an inexhaustible mine for feminist historians, who may return to well-known legislative landmarks, but pose new and innovative questions. Ishita Pande’s Sex, Law and the Politics of Age (SLPA) similarly ‘returns’ to the Child Marriage Restraint Act (CMRA) of 1929, but to investigate the histories of childhood, or more properly, the centrality assumed by ‘age’ in definitions of childhood, enmeshed in anxieties about sexuality. It is a deeply researched and theoretically grounded work, in which Pande relies as much on the nuances afforded by case law as on broader discourses about the law and representational practices, in the writings and communications of colonial officials, reformers, communalists, those resistant to reform—and not least, women themselves. Pande’s meticulous engagement with the feminist scholarship of the last four decades succeeds in unsettling, in provocative ways, what she sees as feminist methodological and conceptual orthodoxies.
The book, organised around three sections of two chapters each, takes us first through two well-known legislative landmarks, the Age of Consent controversy of 1891 and the CMRA of 1929, to establish what is central to Pande’s book: how and when does chronological age attain its categorical status, bestowing rights of protection, creating opportunities and exclusions, which together amount to an ‘epistemic contract on age’? The second section focuses on the ways in which the temporalities of law and the discourse on sexology reconfigure sexuality and child protection among Hindus, creating and defining childhood and adolescence with enduring consequences. The third and last section focuses on two moments that foreground on one hand, Hindu communal representations of Muslim ‘child marriage’ practices, and creative Muslim engagements with, and complex resistance to, the CMRA on the other.
Through this densely hatched portrait of a period and a problem, Pande makes at least three critical contributions. First, she challenges liberal feminist historiography and its commonsensical ‘acceptance’ of age in the debates on child marriage by demonstrating that age too is a construct, an expression of ‘law’s temporality’ and the task of the historian is to detail the processes by which it was ‘universalised’. Pande thus joins a small but growing band of historians who are detailing these specificities for different parts of the world (Fielf & Syrett, 2020). Secondly, Pande’s book engages with gender in the fullest sense of the term, by incorporating anxieties and concerns about boys’ sexuality/maturity, as much as girls. This is done by highlighting legislative attempts and reading case law in the crucial period of the 1920s that focused, both directly and indirectly, on the appropriate age of marriage and fatherhood for boys. ‘I focus’, she says, ‘on the boy-child, not from a desire to retrieve a subject “lost” to history but to visit anew archival materials rendered invisible after child marriage became cast solely as a question concerning women and girl children, and to use the boy as a heuristic device to capture the textures of what I call “sex/age systems”’ (SLPA, p. 125).
Finally, Pande’s book questions the ‘methodological Hinduism’ of Indian—and feminist—historiography, with her focus on Muslim dissent, by bringing it into conversation with the preoccupation with age, and through a reinterpretation of the resistance to the child marriage act in the North West Frontier Provinces as a form of Civil Disobedience itself. In reading the particularities of the ‘option of puberty’ in important cases involving Muslim women/girls, Pande reinterprets resistance to the CMRA ‘not as a rejection of the principles of gender justice and child protection but as a repudiation of “cut and dried details of a uniform nature for each and every individual without regard for his individuality” as their basis’ (SLPA, p. 260–261).
That said, the determined foregrounding of age as the singular marker of ‘childhood’ has been noted in some detail by historians of themes other than child marriage. Aditya Sarkar has queried, in words almost identical to Pande’s, the absorption with age in defining the child worker, who had already furrowed the brows of those elaborating a salvationist logic, such as Mary Carpenter and Sasipada Banerjee in the 1860s (Sarkar, 2018). These ‘imperial engagements’ culminated in passage of factory laws that prohibited children below 7 from work in the mills, and only ‘half time or 9 hours’ for those between 7 and 12, with the working childhood ending at age 12. Though Pande gestures towards these concerns (SLPA, Section 1.2), they remain peripheral to her argument on law’s temporalities. The relationship of age to ability was also central to those obsessively concerned about ‘female education’ from the beginning of the nineteenth century, repeatedly acknowledging that ‘females’ had learned too little before they were systematically withdrawn from schools at the age of 12. How do these engagements with the age of (boy) workers and (girl) pupils, even when they escape the overtly ‘protectionist’ logic of child marriage laws, contribute to the emerging ‘epistemic contract on age’?
We also know that the female, and especially the ‘deviant’ and usually marginal female, was brought under particular and intense surveillance, documentation and penal sanctions throughout the nineteenth century, via the Cantonment Acts, Contagious Diseases Acts, infanticide regulations and acts identifying the Criminal Tribes, as Radhika Singha has pointed out (Singha, 2003; see also Mitra, 2020). The penal code of 1860 itself criminalised the exposure and abandonment of a child below 12, which with infanticide regulations called for scrupulous records of marriages and births, though no doubt of specifically targeted populations. Moreover, registers of births, deaths and marriages, as in church, though rejected by the court for not having been maintained under any special requirement of the law, revealed how they had gained evidentiary value, and how actively they were being deployed to claim inheritance, pensions, even to avoid coming under the dreaded Contagious Diseases Act of 1868. In short, records of age (or marital status) were engaged within creative and even enabling ways by men and women through most of the nineteenth century.
The robust challenge of ‘methodological Hinduism’ in this book stops short of acknowledging the place of caste in this debate. For instance, what of the large number of castes that permitted widow remarriage were repeatedly castigated for having alarmingly lax marital ties and were therefore less easily persuaded that early marriage was ‘offensive’—morally and legally? This became quite evident in the prosecutions following the 1894 prohibition of ‘infant’ marriage in Princely Mysore, seen as needless interference in local law-ways? (Nair, 2011). Unlike the Muslims, these castes remained unrepresented in the debates that changed their lives.
Pande quite rightly signals at the outset that the CMRA marked a break from 1891, since there was a visible engagement in the debate by women themselves (SLPA, p. 23). Yet the work, while giving voice to female litigants, particularly in Chapter 7, finds less reason to engage with those women themselves who significantly altered the terms of the CMRA debate (SLPA, pp. 101–103), meticulously and passionately proclaimed in Mrinalini Sinha’s Specter of Mother India (Sinha, 2006).
Ishita Pande has instead found it productive to bring ‘queer theory’ to bear on the CMRA, using Kathryn Bond Stockton’s concept metaphor ‘growing sideways’ to ‘prick (deflate or just delay) the vertical forward moving motion metaphor of growing up’ (SLPA, p. 23). Pande surely, and with panache, emplaces her arguments in the thick contexts of the time, by connecting them to parallel events and discourses. But it is now accepted well enough among feminist historians that human (or indeed societal) development does not proceed in a linear fashion; so too, the role of the historian in ‘creating pasts’. Ishita Pande’s use of the heavy artillery of queer theory and this book’s method (i.e., reading sideways) may also be parsed as what feminists have been engaging with for the last 40 years without even knowing it—rather like Moliere’s seventeenth-century bourgeois gentleman. Nevertheless, this is a book that will be profitably read and debated for a long time to come.