How 'Consent', 'Agency' and 'Age' Play out across the Complex Terrain of Family Laws in India: A Socio-Legal Exploration

The central theme of this paper is an exploration of terms such as 'age', 'consent' and 'agency' and the manner in which they play out in judicial discourse across different time zones, and the implications for women from the Hindu and Muslim religious communities in India, who are governed by their respective personal laws. The area explored is matrimonial law, which is approached methodologically through comparative analyses of rulings of the higher judiciary and grounding them within their socio-political locations. Part one contextualises the theme of the paper. Part two then describes the political context of religion-based personal laws in India. The following two parts explore the adverse implications for Hindu women of viewing Hindu marriage as sacramental; and the advantages to Muslim women of viewing Muslim marriage as a civil contract. When we examine reported judgements, Muslim personal law appears to be far more progressive and seems to grant a greater space for the negotiation of rights than the Hindu law. This contradicts the popular perception that Muslim law is regressive and denies Muslim women agency. Continuing further, the fifth part of the paper offers a detailed exploration of the various strands of the historical Rukhmabai case. The case deals with the issue of a decree of restitution of conjugal rights sought by the husband, in the case of a girl who was married when she was a minor. The following section examines the implications of religious conversions for Hindu and Muslim women. Here too, Muslim law appears to provide women with greater scope for exercising an active agency in matters of sexual desire. While the above discussions deal with the colonial period, the next two parts turn to the postindependence period. Even after the codification of Hindu law which rendered Hindu marriages contractual, various court judgements on the realm of restitution of conjugal rights continued to stress the sacramental aspect of a Hindu marriage, to the disadvantage of women. The final part considers the issue of elopement marriages of minor Hindu girls where there is a rupture between age and consent. The challenges this poses to contemporary feminist discourse in India are examined in detail.