Hindu Law, Jurisprudence and Rape As Practiced in India Till 1860
Rape is a heinous crime but till the British enacted the Indian Penal code in 1860, there does not seem to be any mention of rape or to treat rape as a cognizable offence in Hindu jurisprudence. For the first time Article 376 and 377 made rape a cognizable offense punishable with a term of 7 years rigours imprisonment. The act also specified that a sex act with a girl below the age of 16, even if done with the consent of the girl would be rape.
Till the advent of the British the only codified law in India was the Sharia which was brought in by the Muslim rulers. But generally it was not applied to Hindus. As far as Hindus were concerned no law recognized rape and there is no mention of this crime in ancient scriptures.
Hindu law was based on ‘Dharma’ meaning a path outlined by religion. This was an amorphous term and had different meanings for different classes of people. Whatever jurisprudence existed in Hindu thought was derived from the Laws of Manu enunciated by the sage Manu in his tome ‘Manusmiriti’. The Manusmiriti is the corner stone of Hindu Jurisprudence, but in the entire volume which consists of 2684 verses divided into 12 chapters there is no mention of rape. Thus, when there is no mention of rape any punishment for this offence is also not mentioned.
The Manusmiriti was first translated into English by Sir William Jones in 1794. William Jones believed that the Manusmiriti or the Laws of Manu were legal codes.
Despite there being no mention of rape this crime was prevalent in Hindu society. Probably the jurists were expected to deal with an offence of rape under the provisions of ‘Dharma’. Thus in case a King or Raja abducted a girl and raped her and then sent her away it was part of Dharma and no charges could be levelled against the king. This also applied to the higher castes and Brahmin’s who could enter a Shudras house and rape his wife and it was not considered a sin.
There was a dual standard and a Shudras or untouchable even touching a Brahmin woman was condemned to death. But one good thing was there in Hindu jurisprudence as barbaric punishments like blinding, cutting of hands and feet etc were never sanctioned or enforced like in the Sharia or the laws of Hammurabi.
Manu and his laws ruled Hindu Jurisprudence for almost 4000 years. The basic distinction which Manusmiriti made was in the classes or caste in the Hindu society. Laws meant for one caste were not applicable to another caste and generally rape of lower caste women or women of inferior statue was accepted as a part of Dharma.