Sex played no small part in the history of early capitalism. There has been much theoretical and historical engagement with the intensification of sexual discipline and the emergence of a discourse of sex in early modern Europe.Footnote 1 But was this just a European story, another aspect of the ‘great divergence’ that separated the West from the rest? Was it only with colonialism that states began to intervene in the sexual lives of their subjects in the non-Western world? Or did early modern capital accumulation, playing out in pockets across the globe, have consequences for status and sexuality elsewhere in the world? Through a focus on the western Indian principality of Marwar, governed by the Rathor dynasty, I suggest that the changes unleashed on the ground by the early capitalist order worked to both sharpen and reshape caste and gender hierarchies in parts of eighteenth-century South Asia. This played out through an intensification of sexual discipline, particularly upon merchant and Brahman women, and the generation of a fragmented archive dwelling on ‘illicit’ sex. In the legal imaginary of this archive, sex within caste-sanctioned marriage was the most licit type of sexual relations, while sex outside such a marriage was categorized into degrees of illicitness. In the legal logic undergirding the taxonomy of ‘illicit’ sex that emerged,Footnote 2 the state only held men culpable for illicit sex and did not accord agency in sexual acts to women.Footnote 3 Women's willing or unwilling participation was beside the point in the eyes of state law. I argue that this passivity in sexual acts which some state-enforced legal regimes attributed to women denied them sexual agency and, therefore, sexual personhood in law, which in turn strengthened the conception of women as a type of property.
By ‘sexual personhood’, I mean the attribution of agency in sex acts. This denial stood in contrast to women's ability in eighteenth-century Rathor law to be held culpable for a range of other violations, such as theft or murder. These findings corroborate the idea that personhood in pre-colonial South Asia was contextual and fluid, unlike the bounded individuals that modernity introduced.Footnote 4 Rachel Sturman, for instance, suggests, drawing on Sumit Guha's findings, that proprietary claims could be read as among the qualities that constituted persons and bodies in pre-colonial Maharashtra.Footnote 5 So when it came to sexual acts, women lacked personhood in law even as they possessed it for other kinds of actions.Footnote 6 Women's legal status in sexual ‘crimes’, then, offers us a glimpse of the role of law in pre-modern societies in crafting conceptions of personhood. Elsewhere in the early modern world, the possession of property came to be viewed as a necessary attribute of personhood.Footnote 7 In parts of early modern South Asia such as Marwar, the intensification of male proprietary controls over women—through the negation of women's sexual personhood—may similarly have been part of new political regimes that shaped elite male claims to localized political membership (such as in merchant caste organizations) and social standing (such as status in temple communities and Jain sanghs, or congregations). In keeping with the contextual nature of early modern personhood, among the ‘crimes’ that women were liable for, as I will show, was the termination of an unwanted pregnancy. The Rathor state considered abortion illegal but this seemingly universal legal stance impacted most on women of aspirant and upwardly mobile castes.
In the fragmented archive dwelling on sex, it is certain subjects—women and vagrant, landless castes—that emerge as inherently resistant to obedience and who elicited anxieties on the part of pre-colonial administrators. An absence in Rathor records is the woman protagonist of sexual violence and abortion, who emerges only as an archival silence, as a ‘surplus’ or ‘excess’ of state anxieties.Footnote 8 Rather than trying to recover her consent or resistance to sexual relations, I seek instead to reflect upon why it was that Rathor law in the eighteenth century expended so much energy on persecuting sexual deviance even as it did not place emphasis on whether women willingly or unwillingly participated in ‘deviant’ sex. This is in contrast to some other contemporary legal frameworks, such as the Hanafi law practised in Mughal India, that did assign significance to women's consent in ‘illicit’ sex. I approach these issues not as autochthonous changes stemming only from the inner processes of South Asian society. Instead, I consider local and sub-continental developments, even as I suggest that this history was a local chapter of a global story: the birth of the modern world.Footnote 9
As Frank Perlin has shown, by the eighteenth century, prior to colonialism, the Indian economy had become deeply intertwined with European commerce creating closer ties than before between South Asia and regions such as the Americas, Africa, and East Asia. The emergence of the capitalist order, he suggests, was a global process which saw Indian mercantile capital develop stronger control over domestic production and which facilitated capital accumulation both in South Asian merchants’ hands as well as further afield in western Europe.Footnote 10 While the business and economic history of early modern South Asia has received much attention, with some scholars demonstrating the enmeshing of trade and finance with statecraft, the impact of this global integration and an early capitalist world order on society at large is an area that demands further inquiry.Footnote 11 In the pages that follow, I suggest that the same global processes that reshaped flows of capital and the production of goods in South Asia also help to explain the intensification of caste and gender hierarchies and proprietary controls over women in parts of the region as it stood on the cusp of colonial modernity. The rise of a more integrated global economy, then, holds significance not only for the ports and court cities of the pre-colonial, non-Western world but also for seemingly disconnected localities in the hinterland.
I will show that this the quickening of global economic integration reshaped social relations and the administration of sexuality in four ways. First, social relations became mediated to a greater degree than before by money, and the intersection between money and social relations became a key site for the state's intervention in the making and breaking of social bonds such as marriage. Money became the salve healing social ruptures caused by injury as well the glue sealing social and political bonds. The regime of fines, cesses for state recognition of marriages and remarriages, and payments of dowries and bridewealth in cash kept capital on the move. Even as constant circulation, rather than investment into fixed income, was a characteristic of early modern commercial capitalism,Footnote 12 the ubiquity of these monetary transactions across Marwar demonstrates how the exchange of women facilitated this movement.Footnote 13 Second, the imprint of these economic changes can be seen on the sources upon which this study is based. These began to be compiled in Marwar only in the mid-eighteenth century, that is, the period in which mercantile power was at its peak. Mercantile participation in the state, then, had an influence on the nature of the state's documentary regime. These records—the Jodhpur Sanad Parwana Bahis—resembled merchant ledgers and account books, also known as bahis. Third, merchants—primary beneficiaries in South Asia, and particularly in Marwar, of the intensified trade and expanding credit markets that global exchange brought—deployed their skills with accounting and writing to wield greater influence not just on the economy but also within state bureaucracies and localized societies. Brahmans, also beneficiaries of early modern processes of circulation and state formation, began to command greater influence at court in Marwar than they had prior to the eighteenth century. Merchants and Brahmans translated their participation in the state, I suggest, into an effort to elevate their caste groups to the pinnacle of local caste society. A central plank upon which this effort rested was the regulation of their women's bodies. Fourth, the intensification of proprietary regimes due to early modern economic and political processes was a key plank through which these upwardly mobile communities tightened their control of women's bodies. This manifested through the state's implementation of the aforementioned property-like qualities of women as wives and daughters which until then may have been more open to negotiation in practice.
Marwar in the eighteenth century
[To the Nagaur magistracy, 1776 ce] There is much illicit sex in the town and abortions are common (saihar maiṁ chāmchorī ghaṇī huvai hai nai adhūrā nakhījai hai). Such deeds should not occur. Be especially vigilant about this (visekh talāś rākhjo).
The Muslims let their daughters grow a lot before they get them married (musalmānāṁ nai ḍāvḍīyāṁ ghaṇī moṭī kar parṇāvai hai). This is not okay (duras nahīṁ). In future, have it ensured (tākīd kar deṇī) that they should not let them grow so much.
—By the order of (duvāyatī) the Pyad Bakhshi [Officer in Charge of Non-Military Personnel, at the time, Brahman Purohit Bansidhar]Footnote 14
The office of the king of the western Indian principality of Marwar, occupied by the Rathor dynast Vijai Singh (r. 1753–1793), dispatched these words in 1776 to its provincial magistracy headquartered in the busy trading and pilgrimage town of Nagaur.Footnote 15 The above command was just one of many that the Rathor state issued in the latter half of the eighteenth and the early years of the nineteenth century that pertained to the sexual activities of its subjects. These commands reflect not just the legislative agenda of the Rathor king and his state bureaucracy but also the petitions, appeals, and customs of a vast array of the people of Marwar. They make it clear that abortion and ‘illicit’ sex were not just immoral but criminal from the perspective of eighteenth-century Marwari state authorities. Commands such as these also bear the imprint of the role of officers of merchant and Brahman castes in shaping governmental policy, as is suggested in the above order by the role of a Brahman, Purohit Bansidhar, in issuing an order applicable to the entire town of Nagaur prohibiting ‘illicit’ sex and abortion while also directing that girls ought to be married by a certain (unspecified) age.
The eighteenth century in South Asian history was witness to a wide range of changes, prominent among which was the emergence of new social bases of power. Groups of peasant origin, such as the Sikhs, Jats, and the Marathas, became martial and kingly, while other ‘middling’ groups such as merchants and scribal communities began to more successfully translate their social and economic capital into political authority.Footnote 16 In Marwar, as elsewhere in Rajasthan, mercantile communities took the lion's share of the opportunities created by an elaboration of state bureaucracies that had been unfolding in many parts of South Asia since the sixteenth century.Footnote 17 That is, merchants in Rajasthan, most of whom were Osval Jains and Vaishnavs and were designated by the umbrella caste title ‘Mahajan’, parleyed their literacy and facility with accounting into administrative positions such as kotwal (magistrate), hakim (provincial governor), and diwan (chief minister to the king).Footnote 18
In the quest to transform Marwar from a clan-based, fraternal polity into a monarchy, Rathor kings built a bureaucracy and staffed it not with Rajputs (who could assert blood- and caste-based challenges to Rathor monarchs) but with men from mercantile and, to a lesser extent, Brahman and scribal castes.Footnote 19 As Mughal authority weakened in the eighteenth century, Rathor efforts at state building and expansion were kept in check by the rise of the Marathas from the Deccan. In Vijai Singh's reign, the Marathas repeatedly defeated the Rathors and other Rajput kings in battle, forcing them to pay heavy indemnities and tribute.Footnote 20 Vijai Singh showed resilience in the face of Maratha demands and managed to win over the rich province of Godwad from the neighbouring kingdom of Udaipur in exchange for military aid.Footnote 21 His forces also conquered Umarkot in Sindh in 1782. With steps such as these, Vijai Singh managed to create new revenue streams to meet the exigencies of the military-fiscal order of eighteenth-century South Asia.Footnote 22
Lists of office-bearers from Vijai Singh's reign in both the central and provincial administration, including the offices that decided the types of petitions discussed in this article, are compiled in volumes called the Ohda Bahis.Footnote 23 These lists reflect the grip that Jain and Vaishnav merchants and, to a lesser extent, Brahmans had on the rank and file of Rathor bureaucracy.Footnote 24 Rajputs, by dint of their blood-based claims upon land and rank, remained key planks of the polity but merchants used their command over political office, combined with their hold over capital flows locally and across the sub-continent, to emerge as powerful players in state and society.Footnote 25
Brahmans, another ‘high’ caste group, were in an anomalous position. Nominally, they were at the highest echelons of the caste order due to a type of ritual authority rooted in their monopoly over Sanskritic learning and indispensable role in key life-cycle, religious, and kingly rituals. On the basis of this ritual authority, Brahmans received hereditary tax-free grants of land (sāsaṇ or ḍohlī) or shares of the state's tax collections, adding a material aspect to their ritual dominance.Footnote 26 Like merchants, Brahmans in the region also saw an improvement in their standing by the eighteenth century. For some, this rested on the expansion of trade and moneylending and for others, on a heightening of their ritual prominence within the Vaishnav devotional sect of the Vallabh Sampraday, which in turn was deeply influential upon merchants as well as upon leading Rajput lineages, including the maharaja himself.Footnote 27 As Rathor bureaucracy expanded, Brahmans’ literacy resulted in their incorporation into the state.Footnote 28 Elsewhere in South Asia, Brahman beneficiaries of the political and economic changes made possible by the Mughal and post-Mughal orders took the lead in ‘reforming’ their caste through efforts at unity and uniformity.Footnote 29
Unlike in peninsular India, where Brahmans had been beneficiaries of particular trajectories of agrarian and state expansion since the medieval period, by the dawn of the early modern era Brahmans in North India, including in Rajasthan, had not been able to amass economic and political power to accompany their high ritual status.Footnote 30 In Marwar, Brahmans were not able to commandeer political authority and key offices to the extent that their counterparts in the Maratha polity famously had done; they came to some political power by occasionally holding influential positions in the Rathor administration. Still, some Brahman castes in Marwar, such as the Palliwals and Nandwana Bohras, thrived as traders and moneylenders.Footnote 31 To that extent, like merchants, the literacy of Brahmans positioned them to also become beneficiaries of the expanding play of credit and trade. In Marwar, where local ritualists such as Charans had a historically rooted command on ritual authority and where land was under the control of Rajputs, all of the above factors combined to make the eighteenth century one of new opportunity for Brahmans.
The mid-eighteenth century saw the merchants and Brahmans of Marwar capitalizing on their slow accumulation of wealth, scribal skills, and political authority over the past centuries to attempt inclusion into the top-most rung of this localized caste order, occupied until then by Rajputs. Mughal consolidation and peace as well as the intensification of commercial flows in the course of the early modern period had fuelled this diasporic spread of Marwari merchants.Footnote 32 In addition, the merchants of western India—Gujarat and just north of it, Marwar—worked as money changers (sarrafs), brokers (dallals), and bankers (sahukars, seths, and Mahajans) for the European trading companies that became active in South Asia at this time. They could loan money and remit it over long distances using bills of exchange.Footnote 33 Deposit banking, insurance, and bottomry were other sources of profit for bankers as South Asia became drawn into webs of global exchange. The eighteenth century saw North Indian banking firms, prominent among which were Vaishnav and Jain Marwaris, stepping in to underwrite the investments of ‘portfolio capitalists’, state officers whose investments spanned revenue farms, military infrastructure, and trade.Footnote 34
This combination of political office and economic power resulted in an assertion of distinction and distance from the mass of peasants and artisanal castes through the imposition of new forms of social and sexual discipline among their members. In this effort, the state, of which they were part, served as a powerful instrument. The judgments and decrees that I discuss below were issued by precisely these same Vaishnav and Jain merchants and Brahmans, as the records themselves often testify. The ‘Rathor state’ or ‘crown’ that I refer to in the pages to come was not an anonymous or abstract body but rather one run by merchants and was linked to them not only as its personnel but also as influential members of society and as fiscal actors.
The caste order of Marwar, then, was in a state of flux. Mid-seventeenth century sources such as the Mārvāḍ rā Parganāṁ rī Vigat and Muṁhtā Naiṇsī rī Khyāt, both compiled by the merchant-administrator Mumhta Nainsi at the behest of the Rathor court, offer a picture of Marwari state and society that is quite different from that which emerges from eighteenth-century records.Footnote 35 The Vigat and the Khyāt reflect a polity in which, even as merchants were participants as warriors and administrators, Rajputs stood at the pinnacle of the order due to their caste- and descent-based claims to superior rights over land and labour as well as their alliances with Mughal overlords.Footnote 36 In its compilation of local lore, the Khyāt for instance remains centred on Rajput clans. The Rathor polity emerges as one that was in the process of attempting a transition from being a more fraternal and decentralized order to a monarchy.Footnote 37 From these texts, it does not appear that the seventeenth-century Rathor state was involved in adjudicating localized disputes at the scale it did in the latter half of the eighteenth century. In addition, loyalty-based webs of service (naukarī, chākari) and kinship (sagāī) enjoyed greater value in seventeenth-century Rajasthan, while the eighteenth century saw the spread of cash salaries and debt relations.
Ledgers and archives
Eighteenth-century Marwaris, like others across time and place, had sex both within and outside wedlock. By this time, however, the courtly Rajput households of western India were experiencing a hardening of boundaries between wives and other female sexual partners.Footnote 38 The status of ‘wife’ was now the preserve of Rajput women alone and was not open to women of other caste groups. In Marwar, Maharaja Vijai Singh's attachment since the early 1770s to his concubine, Gulab Rai, and her involvement at court provoked much resentment and ended ultimately in her assassination in 1792.Footnote 39 In the courtly Mughal context as well, ethical discourse warned against attempting to incorporate a courtesan into one's household, whether as wife or consort.Footnote 40
Did ‘popular’, less elite attitudes differ from the aristocratic ones described above? The Rathor record suggests that more quotidian sexual activity too was tightly policed by custom and law into fitting within the straight and narrow path of the licit. What was licit, in turn, was coded by custom and could vary by status. Women's sexual purity indexed the honour of their families and their caste groups, and their bodies were sites for the reformulation of caste rank. This idea of sexual purity rested on women only having sex within a caste-approved marriage and intersected, particularly for elite castes, with notions of bodily purity. When it came to women, ideas of caste purity intersected with chastity and adherence to caste-specific sexual codes. Further, these records show that unlike aristocratic, Rajput women, the disciplining of whose bodies and desires was much more the preserve of their male kinsmen, merchant and other castes whose grasp on power was more recent were open to channelling the more public authority of the state towards enforcing sexual discipline upon their women. This in turn generated complaints, petitions, judgments, and orders—an archive—centred on the sexual relations of the residents of Marwar in general and of merchants and Brahmans in particular.
This fragmented archive is scattered through the Jodhpur Sanad Parwana Bahis, which are annualized compilations of the orders issued by the Rathor state's central headquarters to pargana administrators. These orders can be decrees applicable to the whole kingdom and responses to petitions submitted by subjects or to reports brought by news writers (itlak naves or uvaka naves).Footnote 41 We know from Mughal historians that parwanas, one of the kinds of documents transcribed in these records, were orders issued not by the king himself but by his high-ranking deputies.Footnote 42 Many, though not all, orders name an issuing officer (‘duvāyatī’ or ‘by the command of’), with the names often not accompanied by any office or rank. When checked against Rathor officer lists, these names largely do not correspond with prominent office bearers. At the same time, these names are overwhelmingly those of merchants and, occasionally, of Brahmans and Kayasth Pancholis.Footnote 43 The Sanad Parwana Bahis were inscribed and compiled at the śrī hajūr rā daftar or the royal chancery, housed in Fateh Pol in Mehrangarh Fort in the capital Jodhpur.Footnote 44 The office of the head or darogha of the royal chancery, we know from Rathor officer lists in the Ohda Bahi, was held by Mahajans or Brahmans throughout the latter half of the eighteenth century. This office entailed not only scribal skills but also knowledge of the customs and practices of the many peoples and places within Marwar.Footnote 45 This suggests that the holder of this office played a role in the resolution of disputes and petitions that subjects brought to Jodhpur. In addition, this office came under the authority of the diwan (akin to the foremost minister) of Marwar. This office too was held by merchants throughout most of the eighteenth century.Footnote 46 All of this indicates that many of the orders proclaimed in the name of ‘śrī hajūr’ or the king in Marwar were in practice issued not by the king himself but by his administrators.
Even as the issuing authority of these orders is often identified in them, they usually designate the recipients of the orders by their offices rather than their names. So the orders were addressed to the magistracy (kotwali chauntra) or the governor's office (kachaidi) rather than to the individuals occupying them. Once again, we know from the officer lists of the Rathor court that the governors (hakims) and the magistrates (kotwals) of Rathor parganas were overwhelmingly merchants. These documents, then, were orders written by merchant and Brahman officers in the capital to their merchant and Brahman subordinates in the provinces.
Studies of documents from Mughal and Maratha territories have noted the role of community attestation, visible as signatures, seals, or symbols, in the generation of authoritative documents.Footnote 47 These studies have read these documents as evidence of the role of local power relations in shaping judicial decisions, particularly vis-à-vis property, in early modern South Asia. The Sanad Parwarna Bahis, however, do not quite fit the pattern observed for these other kinds of documents. This might be because the passages inscribed in the Bahis were copies of the original orders dispatched from the capital to pargana authorities. It may well be that the original orders, sent to the parganas, bore the seal of the darogha of the śrī hajūr rā daftar and perhaps of other participants in the adjudication of the case. The copies of these orders entered into the Sanad Parwana Bahis, however, do not bear any seals, signatures, or marginalia. Still, the role of locally rooted adjudication is legible in the records in other ways, as I will show below.
What do we make of the unattested and unadorned nature of the Jodhpur Sanad Parwana Bahis? These are long, plain pages, roughly two to three feet in length and ten inches or so wide. When bound together, they can run into hundreds of folios. In their current form, they are bound in cloth-covered canvas. Written in a neat, scribal hand and in black ink, these documents are in Old Marwari language and the local variant of the Devanagari script. It is worth noting that in physical form, the Sanad Parwana Bahis are exactly like the account-books (bahis) of the merchants of western India. Thus the mercantile scribes and accountants that constituted the bureaucracy of the Rathor state also shaped its documentary regime. Rather than bundles of loose paper, as was the case for the seventeenth-century records of the neighbouring kingdom of Jaipur and in the eighteenth-century Peshwa kingdom, Marwari merchant-bureaucrats generated a new documentary system—well-ordered, bound together by Vikram Samvat (VS) year into books very much like their own ledgers, and reflect an economy, standardization, and efficiency of language. In anonymizing addressees (the officers to whom the command was addressed) and sometimes even the issuing authorities, the merchants of Marwar may have shepherded the kingdom towards a new type of state form in which offices held greater symbolic authority than their occupants.
As middling groups aspired to the prestige of ancien régime elites, they channelled their power over and participation in the state and economy to reshape their own caste cultures in pursuit of an embodied distinction from the mass of ‘commoners’ beneath them. In this quest, they embraced a culture of chastity and expected conformity from both men and women. In practice, however, women were held to a higher and far more exacting standard. This changed milieu generated not just disapproval of sex outside of wedlock, but by the eighteenth century, a typology of sexual relations. Responses to ‘illicit’ acts ranged from tolerance to total opposition.
The ideologically most acceptable sexual relationship across the entire caste order in Marwar was that which occurred within a marriage.Footnote 48 This attitude was in conformity with that prevalent among elites, as discussed above, in which sex and reproduction within wedlock enjoyed the highest esteem. Among marriages, that of a man with a virgin bride was the most ideal and was formalized through ritual and the payment of a cess to local representatives of the state. In return for the payment of the cess, the groom's family received papers recognizing the marriage.
Remarriage (nātā) of a widow or divorcée was permissible to all but the most elite women. Non-elite castes also tolerated ‘ghar maiṁ ghālnā’ (literally, to put in one's home) or living together out of wedlock, as long as it was between a man and a divorced or widowed woman of the same caste.Footnote 49 The Rathor handling of a small sample of such ‘live-in’ relationships highlights this pattern:
[To the governor of Merta, 1766] Jat [peasant] Kana of the village Boruda was living with (ghar maiṁ ghālī thi) the wife (lugāī) of Jat Davar of Kharchiya village. For this you asked him to pay a fine of 45 rupees and handed the wife back to Davar. Give a discount of 20 rupees on the fine that you have affixed. The jat woman has since given birth to a girl. The jat caste group should be made to arrive at a consensus and whatever is decided by them as customary (uvājabī) should be done. This is by the order of the crown (śrī hajūr).Footnote 50
[To the governor of Sojhat, 1777] Balai [leatherworker] Deva of Ramasni Charna village came here and said: ‘My daughter had been married in Malwa [a region several hundred miles south-west, in modern-day Madhya Pradesh] around 15 years ago to Balai Baliya of the same village. In Samvat 1822 [1765 ce], I came back [to the village in Marwar] from Malwa with my daughter. She had told her husband that she would return to Malwa soon. Yet, she soon received news that her husband had taken in another woman (aur hī lugāī ghar maiṁ ghāl baiṭho) and that he had no room for her in his home. I now have my daughter re-married [nātai dīyū chhū]. I am a vasī [bonded laborer] of Kalavat Bhiva's and now Bhiva is refusing to let me go forth with this re-marriage.’ Call Bhiva over and tell him that the girl was no longer welcome in her husband Baliya's house. Summon Baliya as well, giving him four months’ notice. If he does not show up in four months, then tell Bhiva to not prevent the girl's father from giving her away in re-marriage to someone else. Tell him to take the customary [vājabī] amount as rīt rā rupīyā [a wedding cess] and issue the papers needed.
—Issued by [Mahajan] Singhvi TilokmalFootnote 51
[To the Merta magistracy, 1780] Mehra [a mercantile caste] Rupa informed śrī hajūr that Mehra Toda had taken Rupa's aunt (kākī) into this home (ghar maiṁ ghālī thī). The chauntra [magistracy] here investigated it and she was released from the relationship (chhuḍāy dīvī). Now, Mehra Toda has taken Rupa's aunt off to Merta. The order is that the Mehra woman should be thrown out of Toda's home and the two should be expelled from the town of Merta.
—Issued by [Rajput] Parihar Manrup and [Brahman] Asopa FatehramFootnote 52
[To the governor of Jaitaran, 1785] Shri hajur (the crown) received this news from the news writers’ (itlak naves) reports and the following orders have been issued: The brother of Dhobi [washerman] Rama, of Sojhat, was married into a dhobi family from Talakiya village. Another dhobi, of Nilva village, took her into his home (ghar maiṁ ghālī) while her husband was still alive. For this you fined the dhobi of Talakiya [her father] 21 rupees but did not fine the dhobi of Nilva [with whom she moved in] at all. Instead, you dismissed the summons against the dhobi of Nilva… [Discussing another, unrelated case.] The dhobi of Nilva should be fined. Why did you not do so? Now, fine him in proportion to his means.Footnote 53
[To the town (kasbā) of Bilada, a provincial capital, 1787] Jatni [peasant woman] Sujki came here to the crown (śri hajūr) and submitted an appeal (araj) stating: ‘I had been married to Jat [peasant] Dipa of Patva village. He died after which I started to live with (ghar maiṁ paiṭhī) Jat Ratna of Chhitariya village. I was expecting a child fathered by him when we fell out (mhārai nai ūṇ nai nā banīyo) so he left me (monai chhoḍ dīvī). A mutually agreed upon deed (āmāsāmā likhat) was written up. Since then, I have given birth to a boy that Ratna had fathered and my eyes are wounded. How am I supposed to make ends meet?’ Her eyes are injured and [the father of her child] Ratna has left her. The order is to give her 12 rupees from the kachaidi [the governor's office] there. Her daughter lives in Khariya village. Summon the daughter's in-laws and assign the funds meant for Sujki to them. Take a written commitment from them stating that they will never let her come here again.Footnote 54
—Issued by the officer of the court of justice (adālat rā ohdedar)Footnote 55
The sample cases above, which involve peasants and artisans, show that among ‘lower’ caste groups, live-in relationships with widows and divorcées of the same caste were common and acceptable. It was when such relationships involved a still-married partner or if they crossed caste boundaries that they became ‘deviant’.Footnote 56 It is also noteworthy that state administrators, as the case involving a Mehra man and woman above shows, were not willing to tolerate non-marital cohabitation even if it involved an unmarried man and a widowed woman of the same sub-caste, unlike the case with artisanal and peasant castes. This was one of many ways in which merchants were in a process of effecting a move into the region's elite. Research from nineteenth-century Bengal too has shown the ubiquity of a range of cohabitation arrangements among non-elite castes in Bengal, which British colonial authorities sought to sweep under the umbrella category of ‘temporary’ marriages.Footnote 57 There too a mark of non-elite caste status was the practice of remarriage and non-marital cohabitation. These findings from Bengal are suggestive of a similar strengthening of patriarchal controls over women of mercantile castes, with consequences for women's labour and wealth, as they lost the ability to remarry, divorce, or enter into non-marital sexual relations.
A number of other points also emerge from the references above. First, it becomes clear that paper documents could be issued as proof of state recognition and that possession of such papers helped cement a marital bond. Second, the role of money is once more in evidence in the form of fines, levied here as state punishment upon male participants in ‘live-in’ relationships deemed illicit. Third, the enmeshing of these moral concerns with economic ones is indicated by a command shown above in which an unnamed Jat woman's cohabitation in a Merta village with two different men in a short span of time caused confusion over which of the two men should be recognized as the father of her child. The paternity of the child was clearly of importance, probably for a range of reasons such as the need for a male guardian who could be held responsible for raising her and in case future disputes over inheritance ever arose. This need for a male guardian is also noteworthy in the case of the Jat widow Sujki above, whom the state assigned, possibly due to the absence of a son, to the charge of her daughter's marital family and not to the daughter herself.
Fourth, many of the cases demonstrate the local and socially rooted nature of the judicial resolution of cases, which Nandita Sahai has already observed for eighteenth-century Marwar.Footnote 58 It is possible to see that Rathor authorities in Jodhpur often returned the case to local caste elders or a creditor in control of a bonded labourer at the heart of the dispute.Footnote 59 This evokes Nandini Chatterjee, Farhat Hasan, and Sumit Guha's findings,Footnote 60 discussed above, about the role of attestation by members of the local community in pre-modern documentary regimes. While orders such as the ones about non-marital cohabitation in the Sanad Parwana Bahis do not bear the physical marks of the sort of community adjudication that Guha and Chatterjee have identified for early modern documentation, the content of the orders conveys the role of localized community in adjudication. That said, ‘community’, ‘trusted informants’, or the establishment of what was ‘correct’ cannot be divorced from the play of local politics and asymmetric power relations on the ground. To that extent, merchants, as creditors and state officers, could have had an upper hand in reshaping custom in their favour or producing a favourable judgment. In addition, there were limits to the local and caste-wise variability of law, for there also were occasions, such as the blanket ban on abortion, in which the Rathor crown sent out orders that would override locally variable and caste-based custom.
Fifth, the role of money (here, as rīt rai paise) in mediating social relations is notable in the payment of a small cess by the groom's side to local authorities (for bonded peasants, this would mean the creditor in whose debt they were) for state recognition of marriage or remarriage ties. The importance of money and documentation can be seen in other types of tolerated sexual relations as well. Craftspeople, farming castes, and service groups—that is, a majority of Marwar's population—also practised remarriage.Footnote 61 For a remarriage and, ideally, also to set up a non-marital household, the man involved would secure papers (kāgad) recognized by the state that documented the woman's guardians’ assent (phārgatī) to the remarriage, pay a widow price (rīt rai paise) to her guardians, and hand over a small cess (sukrāṇā) to the state. In Marwar, as in many other parts of South Asia, elite women did not remarry, only non-elite women did.Footnote 62
The coexistence of these two orders of sexual exchange—chaste widowhood for elite women and remarriage for non-elites—was accompanied by two different kinds of economic transactions.Footnote 63 Marriage among the elite castes, the same ones that did not permit women's remarriage, entailed the giving of dowry, whether in cash or kind, from the bride's family to the groom's. Among peasant and artisanal groups, it was the opposite: the groom's family gave money (bridewealth) to the bride's at the time of marriage. In this latter marriage, the gift of the bride was a debt for the groom's family, who repaid it in the form of bride price. In elite marriages, such as among Rajputs and, increasingly, Brahmans and merchants, the gift of the bride did not place a debt upon the groom's family. Instead, the gift of the woman generated honour for her natal family, for which they incurred a debt to the groom's family. This debt was repaid in the form of a dowry. Among elites, then, a daughter could be exchanged for honour and political power, which incurred the added price of a dowry.Footnote 64 Among peasants and artisans, a daughter or widowed daughter-in-law was exchanged for something more fungible than honour—money. Even as the coexistence of these two economies of sexual exchange demarcated ‘low’ from ‘high’, this traffic in women facilitated the circulation of capital—between families and between state and society. Among the elite, the money earned from dowries would no doubt have been invested in trade and moneylending as capital.
Elite status generally inhered in entire caste groups, and by the late eighteenth century in Marwar, Mahajans joined the Rajputs and Brahmans in most effectively claiming it. For Mahajan women, the expression of elite rank meant a severe restriction of their sexuality within the bounds of the one marriage they were permitted in their lifetimes. Elite widows elsewhere in eighteenth-century South Asia, such as in the Peshwa-ruled Deccan and early colonial Bengal, also suffered the same expectations.Footnote 65
Perhaps due to its informality and familiarity to most of Marwar's population, the practice of living together out of wedlock also created an opening for the establishment of marriage-like relations between individuals whom caste and social codes deemed ineligible for sexual intercourse with each other. Examples of unacceptable non-marital households included those that crossed caste lines, those within the same family, or those involving at least one still-married partner.
In upholding these proscriptions, local caste groups held men and women to different standards. So if a still-married man started living with another woman, the local caste group often turned a blind eye and it was only if his wife or her family protested that the state or the caste took action to address the issue.Footnote 66 In contrast to the possibility of tolerance towards married men cohabiting with women who were not their wives, married women did not receive the same degree of latitude. If a married woman started living with another man, the local caste group would mobilize to rectify the situation, often appealing to the state for help. Recorded instances of this involved merchants, peasants (Jat), camel herders (raibari), washermen (dhobi), barbers (nai), and potters (kumbhar).Footnote 67 Notably, in all cases it was the men who were punished for the violation of social norms and the law, whether through fines, arrest, or both.Footnote 68 This suggests that men were the only accountable subjects in the eyes of Rathor law when it came to sexual deviance. While women were capable of participating in illicit acts, they were deemed incapable of resisting them.
Given the ranked nature of caste, inter-caste cohabitation raised the danger of intimacy with those lower in station. Establishing marriage-like ties with members of castes lower in the social order was risky for the entire local caste group, raising the prospect of sliding lower in social rank. Cobbler (mochi) Padiya's local caste group (nyāt) excommunicated him because his wife was said to have earlier moved in with a balai, an ‘Untouchable’ caste of leatherworkers.Footnote 69 The cobblers refused to include Padiya in their communal feasts, a key marker of caste membership.Footnote 70 Cobblers were only a degree removed from leatherworkers, but as artisans working with treated leather, they enjoyed higher status than leatherworkers who did the much more ‘polluting’ work of skinning animal carcasses and treating hides.
Occupational proximity perhaps made the cobblers more sensitive to maintaining social boundaries with leatherworkers. For this reason, the cobblers of Sojhat refused to reintegrate Padiya into their local caste. He appealed to the crown at Jodhpur for help. After the court's mediation, the local caste agreed to take Padiya back if he atoned by making a pilgrimage to the Ganges, which is likely to have been an expensive undertaking. But when Padiya returned from his pilgrimage, the cobblers of Sojhat still refused to take him back, in all likelihood because they had made the earlier concession under state pressure. Padiya petitioned the crown in Jodhpur again and in response, the crown ordered its functionaries in Sojhat to ensure that the local cobblers kept their word and took Padiya back into their caste.Footnote 71
As with most cases inscribed in these records, it is unclear how the dispute was eventually resolved, but the episode illustrates the limits of tolerance towards non-marital cohabitation in eighteenth-century Marwar. Unlike among aristocratic and landed elites, inter-caste cohabitation risked the blurring of caste boundaries and the loss of social status for more ordinary Marwaris. Inter-caste live-in relationships also held the danger of producing children of uncertain caste, creating room for disputes over property inheritance.Footnote 72 So, while wealthy Rajputs were able to attach lower-caste women as consorts and female slaves to their households, albeit at a distinct and lower station than wives, for artisanal and peasant castes, socio-economic precarity served to corral long-term sexual relationships within caste lines. If members of a local caste group failed to break up an inter-caste household they would rather see dissolved, they often succeeded in petitioning the Rathor state to intervene in their favour.
Lagvāḍ (lit. ‘attachment’) was a pejorative label given to ‘illicit’ sexual relationships, that is, those covertly conducted between parties across caste boundaries or against kinship rules.Footnote 73 In lagvāḍ relationships, it is possible to discern the willing participation of women as well as traces of affect, of love. The men and women involved had to meet the following conditions for their lagvāḍ relationship, if discovered, so that it could be rendered into a more tolerable ‘ghar maiṁ ghālnā’ or live-in union: they had to be of the same caste group, their caste group permitted women's remarriage, they were not already kin, and they were unmarried at the time.
If a married woman fell in love with another man, even of the same caste, she could not initiate divorce in order to free herself for a second marriage. Driven to desperation, some women conspired to kill their husbands so as to set up new households with their lovers.Footnote 74 False allegations of lagvāḍ and the investigations and fines they resulted in could be used as a means of exacting revenge.Footnote 75 When no witnesses were available to verify lagvāḍ allegations, local authorities could rely on ordeals (dhīj) to establish the truth of the matter.Footnote 76
The Rathor state, along with local caste groups, worked to end lagvāḍ relationships generally by issuing fines and sometimes by supporting creative solutions.Footnote 77 For instance, when Mahajan Kesro of Nagaur had an affair with another Mahajan's wife, the local Mahajan community forced him to marry his lover's daughter. A continuation of the affair would therefore take it into the even more serious territory of incest. Even after taking this step, the Mahajans of Nagaur continued to taunt and humiliate Kesro.Footnote 78
Lovers who transgressed the boundaries of caste received punishments from both their caste fellows as well as the state and had to contend with insurmountable obstacles to be together. Faced with the imminent consummation of his betrothal to a Brahman girl, Brahman Sama of a village near Merta preferred to run away with a woman from the carpenter (khati) community. Local authorities rounded up all of the Brahman's male kinsmen and may also have exerted pressure on the woman's family. The woman carpenter soon returned but Sama preferred to stay on the run rather than return to the fate, marital and otherwise, that his family and caste had arranged for him.Footnote 79 Mahajan Manrup's sister ran away from her village in Koliya province into the desert with her Rajput lover. The Mahajan girl's father and brother petitioned the state for help, and the state in turn ordered its provincial officers to harass the Rajput's kinsmen into helping in the effort to trace the eloped couple.Footnote 80
In the 30 orders responding to lagvāḍ that I found, the majority (unsurprisingly) were issued by Mahajans. Some of the authorizing officers named in the orders are Singhvis Tilokmal, Dhirajmal, and Motichand; Bhandaris Gangaram, Dayaldas, Shivchand, and Bhavanidas; and Muhnot Bhani Das and Sibhukaran. The Rathor bureaucracy, staffed largely by men of mercantile castes, then, was most intensely focused on the sexual activities of the region's elite. The other significant feature of the state's response to lagvāḍ reports is that only in cases of incest were women punished. Otherwise, as with live-in relationships, the state did not punish the women involved as it did the men, if caught. It appears that each act of incest, as defined by caste and state in eighteenth-century Marwar, was so grave a threat to the moral and social order at large that Rathor law drew women too into the ambit of culpability. Often, men and women discovered to be in an incestuous relationship committed suicide, indicating the power of the incest taboo and hinting at the severity of extra-state punishments for it.Footnote 81 Despite the policing of illicit relationships, lagvāḍ's inscription into the archive shows that there were occasional, yet significant, instances of individual defiance against the writ of the family, caste, and state in the pursuit of love.
Rape or adultery?
Farhat Hasan has observed with respect to Mughal cities that, ‘Exchange of property was more often seen as a transaction in prestige, one that compromised for the vendor the honour of his person and family—and, if the person purchasing it came from outside his social group, that compromised the honour of his community and kin, as well.’Footnote 82 Even though Hasan's study is focused on material exchanges, it is striking how much the argument he makes here about property is applicable also to the exchange of women, as suggested by my arguments above about the relationship between prestige, on the one hand, and sexual relations within or outside the caste group, on the other. The line between licit and illicit when it came to sexual exchange, then, was deeply enmeshed with the honour and prestige of caste and family. This helps to explain the lack of concern in Rathor law for women's willing or unwilling participation, that is, consent, in other kinds of ‘illicit’ sex as well.
It is worth pausing here to ask if a discussion of ‘consent’ in eighteenth-century, pre-colonial South Asia ahistorically imposes upon the past an expectation of the liberal notion of the choice-making individual.Footnote 83 Early modern South Asian conceptions of selfhood, the body, and of gender, as in other pre-modern societies,Footnote 84 differed from those that developed in the colonial era. Responses to being forced to have sex, especially that which violated customary norms and brought ‘dishonour’ to caste and family, would surely have differed from twenty-first century reactions. From scholarship on other parts of the early modern world we know that even if a term for rape existed, its definition in law was often left vague, such as in early modern England,Footnote 85 and its prosecution was rare and nearly impossible in places as far afield as Massachusetts, England, Ottoman Aleppo, Xhosaland in southern Africa, and China in the eighteenth century.Footnote 86
Yet, to identify the absence of a concern for consent—defined purely as permission—in sexual acts is not ahistorical, as is made amply clear by the contemporary recognition of its relevance for adjudicating cases in the practice of Hanafi law in the eighteenth century, as we know from Ottoman territories.Footnote 87 The importance of consent in adjudicating adultery and rape trials has been observed, for instance, for Ottoman Aleppo.Footnote 88 While historians are yet to study such cases in Mughal India, the Ottoman example is suggestive since the Mughals, like the Ottomans, favoured the Hanafi interpretation of Islamic law.Footnote 89 The Marwar region was an important part of the Mughal empire for more than a century, with parts of it being directly governed by the Mughals in Delhi. The lack of significance attached to consent in eighteenth-century Rathor law and in other Rajput kingdoms, then, is important when read alongside the contemporary recognition of it in other legal approaches current at the time in early modern, pre-colonial South Asia.
I argue that an underlying link between Rathor treatments of ‘illicit’ cohabitation and the lack of significance of women's consent in sex was a denial of sexual personhood—the agency of a participant in sexual acts—in law to women. This was a legal conception of women as passive recipients, rather than agents, when it came to sex. I suggest here that the eighteenth century saw the merchant-run Rathor state enact and implement this denial of women's sexual personhood, taking it from the realm of a localized, diffuse, and more negotiable operation into a more standardized and state-enforced practice. This was part of an intensification of proprietary controls, seen also in the tightening of controls over other kinds of property, such as bonded labour, at this time.Footnote 90 In the countryside, this was most visible in the shift of the vasī (originally, a dependent of a Rajput) from a loyal attaché to a bonded labourer.Footnote 91 The expansion of debt and the intensification of proprietary controls accompanied other shifts in the economy such as growing monetization, the proliferation of credit, and the growing power of merchants and landlords.Footnote 92 The handling of illicit sex as a proprietary crime accompanied this larger strengthening of the hands of male holders of productive resources such as land, labour, and capital.
The Sanad Parwana Bahis reflect that, apart from lagvāḍ, another type of relation was both illicit and illegal in eighteenth-century Marwar: that designated ‘chāmchorī’ (literally, ‘theft of skin’, suggesting the theft of something bodily). Unlike lagvāḍ relationships, which were ongoing and continuous, the episodes described as ‘chāmchorī’ appear to be sporadic, or even one-time, occurrences. In some documents, lagvāḍ and chāmchorī are used interchangeably, which is noteworthy because it indicates an overlap between the two terms: what they had in common was their naming of sexual deviance.
This slippage between the two terms suggests that, to a certain extent, it did not matter whether a ‘deviant’ sexual relationship was a one-time event or ongoing. What mattered more was that it defied custom and was thus illicit. Rathor records also occasionally use the terms ‘chūknā’ (‘to have sexual intercourse with’) and ‘harām karnā’ (‘to commit harām’) to describe cases that involve the same transgressions and responses as chāmchorī. Arrogating the moral authority to adjudicate the boundary between the licit and the illicit was an important aspect of state and caste formation in the eighteenth century. By way of example, below are three of the 52 state orders in response to reports of chāmchorī sent from Jodhpur to provincial offices that I found:
[To the Nagaur magistracy] Luhār (blacksmith) Mehmuda appealed to the crown that his son was accused of doing chāmchorī with a khaṭīknī [woman from the caste of butchers]. For this Mehmuda was fined 51 rupees. He said he was poor (nādār) and had four unmarried daughters. He can only pay the fine if granted a discount. The order is, collect 17 rupees.Footnote 93
[To the sayar Footnote 94 in Sojhat] Mahajan Chaina of Khambhal village came to shri hajur [the crown] and submitted an appeal stating his son Hemla was under arrest due to being accused of having done chāmchorī with a ḍhedhni [leatherworking woman]. Chaina said his son did not have sex with her. The order is, properly enquire into the matter there and release Chaina's son. Don't harass him. If solid evidence of his having done chāmchorī reaches you, fine him in proportion to his means.Footnote 95
[To the governor of Koliya] Shri Hajur found out through the news writers’ reports that [rajput] Sakhla Ajbo committed the crime of chāmchorī with brahman Rama's daughter who is a widow. For this he was fined 101 rupees, of which he paid 30 and not the rest. He is a prosperous cultivator. The order is, why did you release him without collecting the entire fine? Explain this and collect the rest of the sum from Ajba quickly.Footnote 96
In nearly all of the cases of chāmchorī that I came across, it was the guilt of men that was of primary concern and the state's punitive efforts were directed only at them. There is only a single instance that I could find of a woman being fined for chāmchorī.Footnote 97 The punishment for chāmchorī could be arrest, fines, or, as in just the one case, death. Fines were the most common type of punishment for the crime and these varied from a few rupees to as much as 600 rupees.Footnote 98 As with many other crimes, the quantum of the punishment was decided on the basis of the gravity of the offence and the economic standing of the guilty. Deciding the quantum of punishment, as with other types of crime, was the source of frequent disagreement between the crown and its provincial officers.
In these records the ubiquity of fines as a means of justice—as a way of righting wrongs, ending disputes, and healing harms—is noteworthy. This suggests that money was no longer just a store of value or a medium for the exchange of economic goods. Alongside increases in commercial agriculture, manufacturing for the market, the spread of credit relations, and state revenue demands in cash, fines levied by regional governments such as that of Marwar are an important, if neglected, aspect of the history of monetization of South Asia. The commutation of crime into cash alludes to the expiatory powers of money, the payment of a monetary fine restoring ruptured social bonds and seen as causing suffering upon the guilty that was commensurate with the gravity of the crime. Expiation through money, then, took its place alongside older forms of performing repentance, such as hosting a feast for the local caste group or making a pilgrimage to the River Ganges. Even though the idea of monetary fines was not unknown prior to the early modern period, the sheer mass of monetary transactions between states and subjects as fines and payments to formalize marriages and remarriages reached unprecedented proportions in the course of the early modern period. If the high fluidity of capital, its constant circulation instead of investment in fixed capital, was a feature of proto-capitalism or commercial capitalism of the early modern age, then the economy of fines and marriage dues (in addition to dowry and bride price) certainly were a significant part of the infrastructure keeping money on the move.
Rathor administrators’ punitive response was another field of overlap between chāmchorī and lagvāḍ or long-term sexual relationships. Once more, this overlap between how different kinds of sexual relations, whether long-term or one-time, were seen by the Rathor state suggests that when it came to its subjects’ sexual acts the line of greatest significance for the Rathor state was that which separated the licit from the illicit. Consent was immaterial.
In these documents, moreover, there is no distinct term for rape, that is, for sex without the consent of both involved persons. The absence or presence of consent was not significant in the eyes of the state nor for society at large in deciding whether or not a sexual act was objectionable, deviant, or illegal. Rather, in the legal adjudication of chāmchorī and lagvāḍ cases, and in their designation as such, state and society were primarily concerned with whether or not the sex was illicit, which in turn rested on whether or not sex between the two parties defied customs governing caste and kinship.
While existing studies on chāmchorī in eighteenth-century Rajasthan suggest, or at most identify, the fluidity between rape and adultery in legal records, they do not make much of this absence of a distinct term for rape. Instead, they try to read rape into the record.Footnote 99 Nandita Sahai, for instance, finds it noteworthy that adultery by goldsmith women is described in the revenue records of eighteenth-century Marwar as chāmchorī, a term she translates as rape.Footnote 100 Perhaps to find a resolution, Sahai suggests that rape was termed ‘zorāvarī [forced] chāmchorī’ while adulterous but consensual sex was just ‘chāmchorī’, which then allows her to read the chāmchorī cases as examples of adultery.Footnote 101 This distinction in terminology is difficult to sustain from my survey of the same records in which I am yet to see the use of chāmchorī qualified with ‘zorāvarī’. Other scholars of Rajasthani history, such as Singh and Kumar, have tried to push a reading of chāmchorī as consensual adulterous relations to argue that instances of it constituted defiance against patriarchal codes.Footnote 102 This interpretation, however, is challenged by their own admission, elsewhere in the same essays, that they were unable to identify which cases classed under the umbrella term ‘chāmchorī’ were consensual and which were not.Footnote 103
This approach reads into the pre-colonial records of kingdoms such as Marwar a legal category that did not yet exist—that is, rape. Rather than trying to parse chāmchorī cases into consensual and non-consensual ones, historians need to take seriously the very fact that in eighteenth-century Marwari jurisprudence, the difference between rape and adultery did not matter enough to merit a different category or even emphasis in case descriptions. Similarly, in the eighteenth-century Peshwa state in the western Deccan, a few cases can be discerned as non-consensual due to the prefixing of ‘jabardastī’ (‘forced’) before the term used to designate illicit sex more broadly (such as badkarma, badfaili, badamal, and sinali/sinalki).Footnote 104 The lack of a distinct legal category for rape, and the occasional indication of a lack of consent through the modification of the umbrella term for ‘illicit’ sex, then reflects that under the laws implemented by the Peshwa court too, consent was of secondary significance, if at all, in deeming sex ‘illicit’. From the ancient through to the early modern period in South Asia, Sanskritic law codes produced and commented upon also appear to lack a distinct category or term for rape. They do, however, discuss sexual relationships that are tantamount to rape, categorizing sex with a woman while she is asleep, intoxicated, or deranged as paiṣāca marriage, a low and undesirable type of marriage,Footnote 105 and elsewhere as one of three types of saṅgrahaṇa, translated as unlawful sex or adultery.Footnote 106 Acts that are condemned for lack of consent are thus classed with other types of undesirable or illicit sexual relationships. The lack of consent in and of itself does not merit, even in dharmashastric law, the constitution of a distinct category of rape. The Sanad Parwana Bahis neither cite shastric law nor do they reference consultations with experts.
At the same time, in Islamic law as well, including, for instance, in its application in the Ottoman empire, there was no distinct legal term for rape. Instead, it was classed under the overarching category of ‘zina’, or illicit sexual acts, which included adultery.Footnote 107 Unlike in Marwar, however, women could be and were held culpable and be punished for their willing involvement in illicit sexual acts and for this reason, Ottoman law did place emphasis on clarifying in case descriptions whether or not the woman willingly consented to the act.Footnote 108 Still, it is noteworthy that neither Islamic law nor Sanskritic textual codes had a separate legal term for rape. It is unclear, due to a lack of explicit reference to either Islamic or Brahmanic law codes in the petitions and judgments in the Rathor archive, whether Rathor legal reasoning and practice derived from either of these two legal traditions.
This does not mean that women did not experience sexual violence in eighteenth-century Marwar or that they did not forge consensual sexual relationships that defied norms. Indeed, modern-day historians may, where cases are detailed enough, be able to separate chāmchorī cases into the two different categories of rape and consensual sex, as they have done,Footnote 109 but what I am suggesting here is that eighteenth-century Rathor law, and that of some other eighteenth-century polities in South Asia, was not invested in this distinction. It is this lack of concern for consent in law that I seek to underscore and explore here.
What does this lack of a legal conception of rape in law, as practised in Marwar and perhaps even beyond, in the eighteenth century mean? I suggest that can be understood alongside the refusal to punish women for participating in illicit sex, as the above discussion shows. While both men and women were deemed guilty, it was largely men who were fined for the different kinds of illegal sexual relations, whether long-term, one-time, consensual, or non-consensual.Footnote 110 That only men were held liable and punished for chāmchorī has also been noted in the case of eastern Rajasthan in the same centuries. In that sense, the denial of sexual personhood in law to women in Marwar seems to align with practice in the wider region.
How do we make sense of the denial of sexual personhood to eighteenth-century Marwari women? Here the literature on slavery in pre-colonial South Asia is particularly insightful. Scholarship on slavery, households, and law in pre- and early colonial South Asia has noted the embeddedness of slaves in homes and in kinship and familial relations.Footnote 111 Noting a continuum from slavery to kinship, Indrani Chatterjee asks if the household in pre-colonial India was a
broad, porous unit, made up of a variety of kin some of whom were part of the real and realizable wealth of the household? … Was kinship then a peculiarly fragile condition, without any correlation between affect and substance, where every elder kin-member could alienate weaker and younger kin, male and female alike?Footnote 112
A wife or a daughter was a weaker and dependent member of a man's domestic establishment and, in matters pertaining to her own body, had no autonomous sexual personhood of her own. She could not then be liable for any illicit acts committed upon her body, as outlined above, and her willingness or unwillingness in participating in such acts was beside the point. In the eyes of Rathor law, then, the harm from such acts was done to the head of her household (dhaṇī) and responsibility for that could only be laid upon male participants and protectors. This is not to erase completely the difference between wife and slave. Still, even if wifehood was distinguished from concubinage and domestic slavery through ritual and status, it shared with them the quality of being a form of ownership. So it was that the Rathor crown commanded that Kumbhar (potter) Deva's wife be forcibly handed back to him by the pargana authorities in Phalodhi, even though she had left her marital home and was refusing to return to it due to what to modern eyes was rape at the hands of her brother-in-law.Footnote 113 In a rare follow-up order, we know that Deva's wife preferred to flee from the new home that she had set up with another potter than return to her marital home. Rathor authorities issued a command for her to be traced and returned to her husband. They also commanded that the fine that had earlier been levied upon her brother-in-law due to her allegation of sexual impropriety be returned to him.Footnote 114
The proprietary controls that men exercised over their wives could, though very rarely, extend into the ability to sell them. Goldsmith Isariya of Merta sold his wife in 1785 to a caste fellow (sunār siriye āp rī lugāī sunār nānīyā nu bechī).Footnote 115 Three other goldsmiths authorized the document (likhat) finalizing the sale. The sale of wives clearly was not entirely acceptable for it excited some controversy and provincial authorities in Merta fined the three men a total of 16 rupees. The men seem to have decided to challenge the judgment and made their way to the capital, where Asopa Surajmal upheld and collected the fine and decreed the case closed.Footnote 116 A fortnight later, perhaps due to continuing dissatisfaction among some sunars or powerful administrators in Marwar that the earlier punishment had been a mere slap on the wrist, Asopa Surajmal deemed the provincial judgment to be grossly insufficient. Now, the men responsible were to be held in the magistracy and fined 1,000 rupees in order to make sure that no one ever again participated in a sale such as this nor authorized it.Footnote 117 A year-and-a-half later, Singhvi Motichand and Pancholi Fatehkaran reduced the fine to a total of 350 rupees, levying it only upon the two men involved in the transaction.Footnote 118 In all the orders, it remains unclear what happened to the woman being sold. Was she restored to her husband? Or did she remain with the man who had bought her? Even as some members of the goldsmith caste group and Rathor administrators looked down upon the sale—their disapproval ranging from mild to extreme—it is noteworthy that the sale went ahead at all and that some caste fellows authorized it in writing. It took some effort before Rathor authorities recognized it as an ‘egregious’ violation.
In this milieu, illicit sex was coded as a type of proprietary crime, a violation of the control of the male guardian upon the wife or daughter's body. Seen from the perspective of sexual economies of exchange, a woman who entered, willingly or not, into a sexual transaction outside of recognized kinship bonds diminished her value as a gift or a conduit of social relations.Footnote 119 Eighteenth-century historical processes such as the rise of new social groups, greater commercialization and monetization of everyday life, and the formation of regional polities with a deepening hold over society permitted the channelling of the state's coercive power into a regime that intensified and put into action a legal vision that saw wifehood and slavery as proximate—though not identical—states of being.
To posit the discursive and legal proximity between wifehood and slavery and to highlight the insignificance of consent in sexual relations is not to read into the pre-modern past the absence of a ‘free’ subject—a rights-bearing individual seeking to tear off the shackles of unfreedom—which is the product of a modern, liberal imagination.Footnote 120 Rather, it is an effort to excavate the particular forms of unfreedom at play in this historical setting, underscoring that efforts at defiance, transgression, and resistance need not be a quest for individualistic ‘freedom’. At the same time, in pointing to the construction of women as passive when it came to sexual acts and as akin to gifts in the sexual economy of the eighteenth century, I am not suggesting that they were completely stripped of all agency or personhood in every aspect of life and law.Footnote 121 I am also not positing women in binary opposition to men, the latter imagined as entirely in proprietary control of their own selves. Instead, like women, men too were embedded in social relations and were not ‘free’ agents. Even as they exercised control over ‘their’ women, men, depending on caste, age, wealth, and other determinants, were also constrained and controlled by social and economic bonds. Finally, there were arenas of negotiation outside the ambit of state law, arenas in which other visions of women's sexual agency jostled more forcefully against the strictures legible in legal orders.
A denial of legal culpability in the sexual domain did not permit eighteenth-century Marwari women, particularly those of the Mahajan and Brahman castes, who had sex outside of wedlock to fully escape the legal clutches of the state. A consequence of such ‘illicit’ sex, borne only by women, was unwanted pregnancy. A pregnancy (ādhān rehnā or āsā rehnā) that occurred out of wedlock was irrefutable evidence of ‘wrongdoing’ (‘khoṭo karam’, as Mahajan Singhvi Tilokmal and Kayasth Pancholi Fatehkaran, who ruled on a case involving a Mahajan woman, described itFootnote 122). To avoid the social censure that stemmed from unwanted pregnancies, women, with or without the support of the men who impregnated them, would seek out abortions (adhūrā nākhnā, ādhān nākhnā, or ṭāb nākhnā, literally, ‘to throw away when incomplete’, ‘to discard a pregnancy’, or ‘to throw a child away’, respectively). Midwives (dāīs) and Jain yatis (semi-ordained monks) performed abortions, inducing them by administering herbs (aukhad).Footnote 123 Nai women worked as midwives and could perform abortions.Footnote 124 Some women would commit infanticide.Footnote 125
In the latter half of the eighteenth century, under Vijai Singh's rule, abortion was illegal.Footnote 126 In 1784, the crown issued the following order to its officers leading Merta province, based on the reports that its news reportersFootnote 127 carried to it:
There is a well in front of Sojhatiya Gate in Merta. Children's bodies were thrown deep into the well and have now been extricated from it. Yet, it remains unknown who threw the bodies in. Keep an eye out for news about this.Footnote 128
The Rathor crown would investigate those reports of abortion that reached it and ensure, in most cases, that at least one of all the parties deemed complicit—the mother-to-be, the father of the unborn child, those who aided or enabled the feticide, and those who failed to report it—were punished.Footnote 129 If reports of a planned abortion or a pregnancy out of wedlock reached the state, it would intervene to prevent the abortion.Footnote 130
As with many other crimes in eighteenth-century Marwar, the punishment for abortion varied from case to case, depending on the clout that the accused could marshal in his or her defence. In the majority of cases, provincial authorities fined those held guilty.Footnote 131 These fines, when specified, ranged from 15 to 445 rupees, assessed on the basis of the perceived gravity of the crime and the payer's economic standing.Footnote 132 Expulsion from government employment, where possible, was another means of punishing those deemed complicit in an abortion case.Footnote 133 In a few cases, punishments were more extreme, such as banishment from one's town or the imposition of a fine that was ruinously disproportionate to the payer's means.Footnote 134
It was much less common for men of the Brahman or Mahajan communities to be banished from their towns in connection with abortion and much more likely that they were let off after paying a fine. Once again, their command over wealth and their caste connections in the state bureaucracy allowed these groups to escape with what was, in effect, lighter punishment. It was only after persistent appeals before the crown by a Brahman woman's father that the Mahajan man who had impregnated her was fined and eventually expelled from the town, and only with the corresponding expulsion from the town of the Brahman woman as well.Footnote 135 For members of these upwardly mobile castes, banishment from a town was not always irreversible.Footnote 136
In this way, local power relations—that is, the wealth and influence commanded by mercantile and Brahman men—mediated judicial responses to abortion, resulting in uneven punishments and unexplained exemptions.Footnote 137 In the resolution of abortion cases, men of the Mahajan and Brahman communities can be observed managing to sway local administrators in their favour, whether through bribes or by exerting their local social standing. It is possible to read in this the local effects of a global process—the birth of the capitalist order. Merchants in particular channelled the wealth and power over the state, whether as bureaucrats or men of local standing, that they had acquired as a direct consequence of their participation in long-distance webs of trade and finance across the South Asian sub-continent. Brahmans too had been beneficiaries of early modern transformations such as the elaboration of states and burgeoning commerce. The articulation of a higher social status within the caste order, however, entailed the restriction of merchant women's sexual activities within wedlock and the use of the state to enforce this sexual discipline. Even as merchants embraced in this way the sexual ethics of old order elites, the Rajputs, as a means of articulating higher caste status, they combined this with an emphasis on other somatic practices emphasizing sensory restraint such as vegetarianism and teetotalism.Footnote 138 In this way, the merchants and Brahmans of Marwar articulated their claims to inclusion among the region's most elite groups by remaking their bodily selves. Chastity and bodily purity unsullied by illicit sex was an essential element of this reconstitution and elevation of the newly elite body.
In this effort, the merchants did not hesitate to use state machinery to achieve conformity with this new code of sexual ethics. Out of the 33 orders pertaining to abortion that I found, 14 were issued by Mahajan officers and four by Brahmans,Footnote 139 and 11 of the orders did not record who issued them.Footnote 140 Almost half of the commands about abortion, all of which unequivocally stood by its illegality, were issued by Mahajan men. If, based the predominance of merchants and Brahmans in Rathor bureaucracy, we include the unattributed commands and add Brahman-issued ones to the tally, the total number of Mahajan- and Brahman-issued commands goes up to 29, that is, an overwhelming majority. Rather than see these men as mechanistically implementing the moral and legal imperatives of the king or some other superior, it is important to see these officers as agents rooted in their own caste cultures and the ethical and political drives of their caste fellows and families.
This is why perhaps they were more invested in policing their own women. Over half of the instances of abortion that I found involve women identifiable as belonging to mercantile or priestly families. Of the remaining cases, about half concern women from elite families whose exact caste affiliation is unclear.Footnote 141 Only four cases involving women of artisanal communities and just one of an ‘Untouchable’ woman reached the crown for adjudication. The universal criminalization of abortion was, in effect, implemented more rigorously upon female members of Brahman and Mahajan communities.
Surveillance and reporting played a central role in the crown's punitive regime against abortion and, in effect, against non-marital sex. Many reports of abortion, or of provincial administrators’ unsatisfactory handling of cases of abortion, reached the Rathor state through its network of newsgatherers. The Rathor crown encouraged the reporting of one's neighbours or acquaintances for abortion, punishing those who concealed such information and rewarding those who divulged it.Footnote 142
Upon women, the toll that a pregnancy out of wedlock could extract was much higher. Unwanted pregnancies would, in many cases, force Mahajan and Brahman women to temporarily leave their homes in search of shelter and discreet abortions in far-flung places. Such journeys and abortions are likely to have been perilous and expensive undertakings.Footnote 143 A Mahajan widow, seven months pregnant, left Sanchor for Gujarat in 1775, unaccompanied as she embarked on this difficult journey.Footnote 144 In 1801, Mahajan Agarvala Ramsukh's wife left Didwana to have an abortion, news of which reached the crown.Footnote 145
The need for an abortion activated networks of solidarity and kinship for the women who needed them.Footnote 146 For many women burdened by unwanted pregnancies, their natal families emerged as a significant source of material, social, and legal support. In 1776, Mahajan Jivaniya Majiji accompanied his widowed mother when she left Didwana for the countryside, seeking a low-key abortion. He bribed the officers that the Didwana magistracy had sent after them, fending them off. They managed to terminate the mother's pregnancy while on the run and the family used its local influence to allow them re-entry into Didwana.Footnote 147 In 1784, merchant AsavaFootnote 148 Bagsiram's wife and Jat Syama's daughter moved from their marital homes to their natal villages in order to end their unwanted pregnancies.Footnote 149 In 1787, Agarvala Sukha, of a Mahajan caste, came to the defence of his cousin four times removed, successfully appealing to the crown in Jodhpur to intervene in her favour when she was accused in Merta of having an abortion. He succeeded in winning a favourable ruling from the capital, from a Mahajan officer named Singhvi Motichand who ordered the Merta magistrate: ‘Do not investigate where there isn't sufficient cause. He is a Mahajan. Do what their nyāt considers good.’Footnote 150 This ruling then left open the possibility that if Agarvala Ramsukha was able to sway enough members of the local caste group to dismiss this abortion allegation against his cousin, the local state had permission to deem the woman innocent. The letting off of a woman was also a relief to her family who would otherwise suffer ostracization and judgement from their caste peers. A natal family's support to a woman pregnant out of wedlock was driven, in no small measure, by the fact that quite often it was the natal family that had to pay the social and legal costs of her illicit pregnancy.Footnote 151
This heightened concern with policing the women of upwardly mobile merchant castes was even more intense when a Mahajan woman was found to have dallied with a lower-caste man. So it was for Mahajan Ladha Sarupa's unnamed widow (raṇḍol) who was impregnated by a Julava (weaver) man with whom she had supposedly been having an affair (lagvāḍ).Footnote 152 She had an abortion, news of which reached the local authorities in Didwana. The magistrate of Didwana, a Maheshwari Mahajan named Bhaiya Daulatram, fined the weaver, an unnamed son of Julava Usla, the steep sum of 145 rupees.Footnote 153 But Bhaiya Daulatram did not stop there. Instead, he used the infraction to introduce new hierarchies and rules in the interface between Mahajan and other women who spun yarn at home, on the one hand, and weavers, on the other. The Mahajan officer threatened to issue a written order (likhat) ruling that Julavas could no longer enter the homes of women cotton spinners (katvārī). This suggests that Ladha Sarupa's widow had spun yarn to earn an income and the Julava's ability to enter her home was seen as enabling the development of ‘illicit’ sexual relations between them. For the Julavas, the kotwal's order meant a demotion in status, for they now had to buy yarn without being received inside spinners’ homes but rather while standing at the door (modai upar ubho sūt ro sodo kiyā karai). This was a move to a less respectful reception, placing the Julavas on par with castes lower in the region's order who were not welcome inside others’ homes.
Faced with this threat, all the Julava weavers of Didwana banded together and came to the crown in Jodhpur to have the Maheshwari kotwal's ruling overruled. Alas, the crown in Jodhpur, its ruling issued by Mahajan Singhvi Tilokmal and Kayasth Pancholi Fatehkaran, decided against the Julavas. These two officers ordered the kotwal of Didwana to get the Julavas to agree to a written undertaking (muchalkā) stating that no Julava would enter a spinner's house and that Julavas would in future purchase thread while standing outside these women's houses. The officers in Jodhpur also instructed the magistrate in Didwana to tell cotton-spinning women to no longer go to the Julavas’ homes to sell yarn, once again introducing a new hierarchy between women spinners and Julavas. As for Julava Usal's son who had impregnated a Mahajan woman, he was to pay the outstanding amount of his fine, 101 rupees. The crown order commanded that he was now also to pay the 20 rupees that his Mahajan paramour had earlier lent him into state coffers as part of the fine.
The two officers in Jodhpur also used this dispute to intervene in the interface between merchant-moneylenders, on the one hand, and weavers, on the other. They seamlessly wove into the order a reiteration of an earlier command pertaining to the Julavas of Didwana, in which they had instructed them to weave cloth pieces no smaller than 18 hands (hāth)Footnote 154 in length. They complained that despite this directive, some pieces did not meet this expectation. Singhvi Tilokmal and Pancholi Fatehkaran ordered the magistrate, Mahajan Bhaiya Daulatram, to fine any Julava who submitted a cloth piece smaller than 18 hands across. They also instructed the kotwal to tell the commissioning Mahajans to report such pieces of cloth, before washing (which would cause shrinkage), to the magistracy.Footnote 155
Here then a weaver's sexual relationship with a merchant-caste woman triggered a wider disciplinary as well as economic action against the entire caste of Julavas, one that diminished their social status in the local caste order. These proceedings against the Julavas also became a means of enforcing production standards upon them, standards arrived at and imposed by Mahajan state officers working in collaboration with Mahajan cloth merchants. Whereas in other cases, particularly involving men of more elite castes impregnating Mahajan or Brahman women, Rathor officers punished only the accused, here the actions of a single weaver—a ‘low’-caste man's sexual relationship with a Mahajan woman—were seen as sufficient cause for the punishment of his entire caste. One of the threads that connected Mahajans with weavers was that of economic exchange, with Mahajan men commissioning and purchasing woven cloth from weavers and weavers purchasing spun yarn from Mahajan women. In this exchange, the Mahajans had the advantages of controlling capital and political power and they successfully channelled this to create greater social distance from Julavas and to gain an upper hand in terms of exchange. Importantly too we see in this episode a glimpse of the ways in which the Rathor state could act as an instrument to further the interests of merchant capital.
While in this case, the woman's only punishment at the hands of the state was the loss of the 20 rupees she had lent to her lover, we know from other cases that Mahajan women could be, and were, punished by the state for abortion. At the same time, the woman, and all other women spinners, suffered through orders such as this one, with the more intangible punishment of the four walls of their homes becoming more sacrosanct and less accessible to yet another category of men. They experienced a disciplining of their social interactions and a proscription of their social worlds.
Status, as it was and continues to be in other historical contexts, was etched on the bodies of women. For merchant and Brahman women in eighteenth-century Marwar, their male counterparts’ worldly success translated into a regime of sexual discipline enforced through the criminalization of abortion so that it was not just the disapproval of caste fellows but now fines, banishments, arrests, legal proceedings, and surveillance networks that they had to fear if they got pregnant out of wedlock. As the bearers of the fruits of illicit sexual relationships, the outlawing of abortion meant that merchant and Brahman women paid a greater price than their male counterparts if deviant sex resulted in a pregnancy: on the one hand, if the pregnancy progressed, they carried the evidence of their ‘crime’ visibly on their bodies and, on the other, if they terminated it, they faced the risk of social censure and criminal prosecution.
To summarize, the evidence from a post-Mughal but still pre-colonial polity in eighteenth-century South Asia reflects the enactment through the state of a legal imagination that posited women—whether as wives or daughters—as a type of property, one that was in a continuum with other kinds of property such as slaves, even as it was a degree removed from them. This in turn is significant for it demonstrates that the state's growing intervention in subjects’ lives and into the locality in some parts of eighteenth-century, pre-colonial South Asia resulted in stronger patriarchal proprietary controls over women's lives and bodies. This can be discerned in the treatment, across a range of ‘illicit’ sexual relations, of women as passive recipients of sexual acts, devoid of legal culpability for having sex that transgressed social norms. In the eyes of the state, consent was immaterial for the classification of a sexual act as illegal. While women could be held responsible and liable for their role in other criminal acts, from theft to murder, their involvement in sex that violated social and legal codes did not merit punishment from the state. This denial of women's sexual personhood in law did not mean that women suffered no consequences for sexual deviance—these punishments, whether humiliation, censure, or boycott, were likely to have been disbursed by kin and caste, not the state. Women, then, were in the curious position of being deemed in law as lacking legal culpability for unlawful sex, while also facing social punishment for it.
My findings here are that the efforts of the eighteenth-century Rathor state, along with those in Jaipur and the Peshwa state, suggest that elite women's participation in public and political life as patrons, potentates, and entrepreneursFootnote 156 or as influential members of royal households could coexist with pressure to lead chaste lives as wives and to abstain from sex as widows. In addition, when seen alongside developments in these other polities, my findings suggest the rise of more interventionist polities in some parts of post-Mughal South Asia. Thirdly, I build on scholarship on women and the family in pre-modern South Asia which shows that there was no rigid boundary between public and private life at the time to argue that this very blurriness between public and private also allowed domestic life, sexuality, and the body to become sites of state and caste legislation.Footnote 157 Finally, these insights from the pre-colonial past help explain the trajectories that debates about the age of consent, the adjudication of rape, and the definition of marriage took in early colonial South Asia in which the woman's word had little bearing.Footnote 158
Driving this state-centred corralling of merchant and Brahman women's sexuality into the ‘licit’ was the rise to economic and political dominance since the sixteenth century of the men of these two caste groups. The rise of Marwari merchants was a direct result of their well-known commandeering of the new avenues of trade, banking, and fiscal accumulation that opened up in early modern South Asia during the eighteenth century. In other words, the global and inter-connected birth of early capitalism that scholars such as Perlin have traced benefited some groups more than others, leading to a realignment of localized caste and gender relations. Sub-continental processes such as the growing complexity and penetration of post-Mughal regional states also expanded the spaces of power into which merchants and Brahmans could grow. As they sought acceptance into the highest echelons of society, occupied exclusively until then by an aristocracy with lineage- and land-based claims to power, merchants and Brahmans expressed their claims to high social status through a politics centred on the body. Purity of blood, so central to caste, for these aspirant middle classes was grounded in a claim to vigour and virtue resting on bodily self-control, particularly of their women.
The state's efforts to govern the sexual activities of its subjects generated not only an archive of such material but also played its part in keeping capital on the move. The circulation of women through ‘acceptable’ means such as marriage, remarriage, and non-marital cohabitation moved money in the form of dowry, bridewealth, and cesses that were due to the state for official recognition. ‘Illicit’ sexual relations generated a steady supply of cash payments as fines. Control of women's bodies and sexual economies of exchange, then, were not peripheral to the movement of capital but rather took it right into the heart of everyday life. For this reason, the intensification through a merchant-run state of the proprietary nature of patriarchal control of women's bodies was not only an effect but an important element of the wider set of economic changes at play.
The integration of South Asia into an increasingly interconnected global economy from roughly the fifteenth century onwards is a well-established idea among historians, as is the call to write histories that tie the locality or the region to trans-regional developments. In this article, I have suggested that local developments rendered on the bodies of seemingly unrelated women scattered across the towns and villages of an inland polity can be read as occurring in response not only to regional and sub-continental changes but also in connection with global shifts. Marwar, home to a set of trading castes that came to dominate sub-continental money flows and the regional state form in the course of the eighteenth century, is a promising site for exploring the inter-connected histories of sex, caste, and capital. A study of the merchant- and Brahman-authored, ledger-like documents of this pre-colonial polity demonstrates the impact on the ground of ‘economic’ processes such as money becoming a medium of social and sexual exchange, the proliferation of debt, the strengthening of proprietary controls, and shifts in the caste order due to the rise of mercantile castes. As South Asia stood on the cusp of colonial modernity, and in the thick of global webs of economic exchange, parts of it witnessed an unprecedented use of the state and its legal apparatus by new elites seeking to recast caste for a new age.