6 - An Age of Discretion

Summary

This chapter traces a case involving a Muslim wife, Badal, who left behind a marriage contracted for her in her childhood on attaining puberty. Ameer Ali’s judgment in the case of Badal Aurat and Anr. v. Emperor (1891) was cited repeatedly as a precedent for the application of the Islamic legal concept of the “option of puberty” in colonial courtrooms. The case sheds interesting light on layered and dynamic historical structure of “Islamic law” and serves as a counterpoint to the tragic and coeval case of Phulmoni Das studied in the first chapter of the book. This chapter traces the afterlives of the case in colonial courtrooms, not with the intent to celebrate Muslim law in its colonial application, but in order: first, to use an Islamic legal principle – the “option of puberty” – to shine a light on the kinks, quirks, and limitations of the liberal legal principle of the “age of consent”; second, to raise questions about the contrasting visibility of the two cases – Badal and Phulmoni – in the historical scholarship on the age of consent and marriage in India; and third, to ask if it is possible to step away from liberal legal categories to imagine consent without (chronological) age.