Abortion in South Asia, 1860–1947: A medico-legal history

Abstract

In the progression of stages toward unintended lives, the two stops on either side of abortion—contraception and infanticide—have been studied extensively by historians of South Asia. We know much less about abortion, particularly during the colonial period. Drawing upon published judgments, unpublished case records, forensic toxicology reports, and treatises on Indian medical jurisprudence, this article suggests that anti-abortion law was generally enforced in colonial India only when women died as a result of illegal abortions. This approach was contrary to the Indian Penal Code (IPC), which criminalized most abortions even when the women survived. The pattern was a continuation of the pre-IPC approach in India. This article explores possible explanations for the lax enforcement of anti-abortion law in South Asia during the late nineteenth and early twentieth centuries, considering abortion as experienced by South Asian and British women alike. It proposes as contributing factors: challenges in detection, the social movement for the protection of Hindu widows, colonial anxieties about false allegations of abortion among South Asians, the common phenomenon of imperial (British) husbands and wives living apart, and physicians’ desire to protect doctor–patient confidentiality. The article focuses on two key cases involving abortion: the Whittaker-Templeton case from Hyderabad (1896–1902) in which a British woman died following an abortion; and the Parsi matrimonial case of T. v. T. from Bombay (1927), in which a Zoroastrian woman alleged that her pharmacist husband had forced her to terminate three pregnancies by ingesting drugs.

Introduction

In 1884, an Assistant Surgeon of the Indian Medical Service named Dulip Singh learned that 15 illicit abortions had occurred in two Punjabi villages during the two months when he was on leave in the area. Most of the women were widows, and the person inducing the abortions was an older woman who was probably a midwife. Under the Indian Penal Code (IPC), these terminations were crimes. However, Singh observed in the Indian Medical Gazette that none of these cases was investigated by the police ‘and no one was punished’.¹

Singh's experience was common during the century between the mid-nineteenth and the mid-twentieth in India. The criminal justice system either took a relatively lenient approach toward abortion at the level of legal doctrine (pre-1862) or failed to enforce anti-abortion law when the rules became stricter (post-1862). Under the IPC of 1860 (which entered into force in 1862), abortion was a crime unless performed to save the life of the woman. As one observer noted, abortion in India was ‘very frequent’, but cases only came to court when a woman had died. Even in these cases, convictions were ‘quite rare’.²

Anti-abortion efforts in India were light in cases involving South Asian and British women alike. At a time when the interests of the fetus started to compete with the interests of the woman elsewhere in the Anglosphere, authorities in British India remained focused on the life of the woman—or rather, on her death. They continued their earlier practice of prosecution for abortion only when the woman had died. There were occasionally live cases: women who had survived illicit terminations were sometimes prosecuted for abortion under the IPC.³ However, these instances were comparatively rare. The larger, longer, and more consistent approach of the state in Raj-era South Asia was to do nothing in cases of abortion if the woman survived.

The first half of this article describes common abortion practices, particularly the use of oral abortifacients and abortion sticks, and the development of anti-abortion law in British India during the last century of colonial rule. Hindu widows and British wives living apart from their husbands turned to abortion to hide illicit sex, while married women cohabiting with their husbands used abortion to control the size of their families. Indian criminal law adopted a stricter approach toward abortion with the passage of the IPC, making abortion a crime even if the woman survived. This new version of anti-abortion law was not generally put into practice. The second half of the article explores factors contributing to this phenomenon, beginning with challenges to detection. The IPC's provisions on abortion ran at cross-purposes with a colonial reform movement that took priority: the campaign for Hindu widow remarriage. Young Hindu widows (many of whom were traditionally prohibited from remarrying) were portrayed as the quintessential users of abortion in colonial India. If they entered into illicit sexual relationships and became pregnant, abortion enabled them to maintain their social status as chaste widows entitled to the continuing financial support of their dead husbands’ families. Colonial officials regarded abortion as an unfortunate corrective to an oppressive norm. They also held deep-seated assumptions about ‘native mendacity’ and hesitated to pursue many reports of abortion for fear that false allegations might be made against Indian women and their families. Among Britons, long separations between imperial couples meant that extramarital relationships and pregnancies sometimes occurred. Abortion offered a way out. Equally, physicians were not quick to cooperate with the criminal justice system in reporting criminal abortions among British or Indian women alike, clinging to their professional code of confidentiality between doctor and patient.

The article explores these themes through two cases with particularly rich records: the criminal and civil trials involving Arthur Templeton following the death of Edith Whittaker after an illicit abortion in the princely state of Hyderabad (1896–1902) and the Parsi matrimonial case of T. v. T. in Bombay (1927). The Hyderabad Abortion case involved Patrick Hehir, the co-author of a leading treatise on medical jurisprudence who played a suspicious role in the death of Mrs Whittaker. Hehir became a celebrated figure in Indian forensic medicine—a pathway that was possible only because the Hyderabad case was buried in his later career trajectory. The case left a trace, though, in his textbook's treatment of doctor–patient confidentiality. Although the facts of the case took place outside of British India, the legal proceedings occurred in British courts because the case involved British subjects. T. v. T. was a case for judicial separation between Parsi spouses. It was filed by the wife of a pharmacist. Mrs T. claimed that her husband had forced her to abort three pregnancies through the ingestion of drugs. This trial featured a ‘battle of the experts’ over the alleged efficacy of various oral abortifacients, creating a portrait of illicit abortion practices in 1920s Bombay.

Scholars of reproduction-related crimes in South Asia have focused on abortion and infanticide targeting female fetuses and babies.⁴ But there is also a broader history to be told. This article offers a prequel to the predominantly post-independence story of sex-selective abortion. It examines how South Asian and British women used abortion (even when the fetus was male) to control family size and mask illicit sex, noting that prosecution was unlikely when the women survived.

Finally, although scholars have examined many facets of abortion in South Asian history, none has focused on the relationship between law on the books and in action. This article pulls the law-and-society genre of gap studies into the colonial setting. In recent decades, studies of law in colonial societies have emphasized law's dual and ambivalent roles: it both acted as ‘handmaiden for processes of domination’ and provided tools and arenas for resistance.⁵ This study points to a third possibility: the ineffectiveness of a statutory provision that may have offered symbolic value vis-à-vis particular audiences (including missionary and metropolitan ones) but that was impracticable in the colonial setting.⁶ After 1862, both Indian and English law made abortion a crime even when the woman survived. In both jurisdictions, though, the law was generally only put into motion when a woman died.⁷ More broadly, harsh anti-abortion laws based on the English and Indian models rippled across the British empire during the nineteenth and early twentieth centuries.⁸ A universal difficulty was detecting abortions carried out with the women's consent. And yet enforcement levels still varied, depending on the place. In Fiji, the colonial state made only half-hearted attempts to enforce the new law; abortion was a widely accepted practice among Fijians. In the British Caribbean, the situation was probably similar. In South Africa and Kenya, the enforcement of anti-abortion law was inseparable from racial politics and debates over female circumcision, respectively.⁹ This article suggests that India's anti-abortion law remained under-enforced for reasons that were distinct to the colonial South Asian context, including abortion's connection to the Hindu widow-remarriage movement and to a particular strain of medical ethics.

The practice of abortion

From tea-plantation labourers to elite wives, women in diverse social roles and settings sought abortions in later nineteenth- and early twentieth-century South Asia.¹⁰ Four groups of women (sometimes overlapping) were commonly identified as abortion users. British imperial wives living temporarily apart from their husbands and young Hindu widows sought abortions; they are discussed in detail below. The third group was married women generally. South Asian and British wives in India used abortion as a form of family planning. In the 1927 Bombay case of T. v. T., the court learned that oral abortifacients were colloquially called ‘the wife's help’, reflecting the idea that abortion was a routine part of married life. In 1929, treatise authors Hehir and Gribble suggested that married British women in India commonly used abortion to limit the size of their families.¹¹ Finally, women in the sex trade used abortion. High rates of venereal disease reduced fertility among prostitutes, but some had children. The daughters of prostitutes often entered the sex trade and supported their mothers in old age.¹² At the same time, pregnancy reduced a woman's ability to offer sexual services. If India was like Singapore, being ‘heavy-footed’ would have caused conflict between prostitutes and their bosses.¹³ Abortions were frequently practised by prostitutes, sometimes with fatal results. Yet prostitutes received surprisingly little mention in the colonial medico-legal sources—an indication perhaps of their marginality or expendability. When Hindu widows worked in the sex trade, the sources focused more on their widowhood than their prostitution, reflecting the importance of the Hindu widow-remarriage movement explored below.¹⁴

Religious traditions in South Asia took a variety of doctrinal positions on abortion, but generally disapproved of it. Hindu texts prohibited deliberate abortion (as opposed to involuntary miscarriage), except to save the life of the woman (and with the permission of the king).¹⁵ From the nineteenth century, Catholic and Protestant churches condemned abortion from conception onward in stricter terms than they had done in the century before.¹⁶ Zoroastrian scripture also prohibited abortion.¹⁷ Islamic law took the most liberal view, permitting it under certain circumstances before 120 days (the point of ensoulment) and prohibiting abortion afterwards, except to save the woman's life.¹⁸

And yet the religious prohibitions on abortion did not stop some women from trying to terminate their pregnancies. Ironically, ‘going to Kashi’ was a well-known euphemism for Hindu widows undergoing abortions, giving their temporary absence the cover of religious pilgrimage to Benares.¹⁹ Other kinds of cosmological beliefs may have propelled some women toward abortion, too. Even before the development of sex-determining technologies in the mid-twentieth century, sex-selective abortion did exist, for instance. Astrologers made predictions on the sex of the fetus, leading in some cases to termination.²⁰ In other cases, women (or couples) sought abortions because they believed the pregnancy was generally inauspicious. By one account, a popular belief that every third pregnancy was bad luck led to abortions in Punjab.²¹

Abortions were performed either by women on themselves (by taking drugs) or by others upon them (by combined local chemical and mechanical means). Western-trained physicians carried out legal abortions to save women's lives, but the medico-legal archive contains very few specific cases of allopathic physicians carrying out illegal abortions in India.²² When the doctor was British, such cases may have caused embarrassment to the European establishment, as did vagrant and violent working-class whites in India.²³ Inverting the racial dynamics and location, the opposite did exist. In Britain, a line of criminal trials implicated Western-trained South Asian doctors who performed illegal abortions on British women, typically in London's impoverished East End.²⁴

While the British allopathic abortionist in India was elusive in the records, another figure was the subject of frequent comment by the authors of medico-legal treatises. These writers unleashed their venom upon the quintessential abortionist in India: the older Indian midwife or dāī. ²⁵ In the words of Norman Chevers:

There is, in nearly every village throughout the country, a hag of low caste and evil repute, half dai half dain, suspected as a witch, professedly a midwife; equally ready, at all times, to practice as a doctoress, a sorceress, or a bawd; and carrying on a systematic trade in the procuration of abortion by the use of the most deadly poisons.²⁶

Such descriptions fit squarely into professionalization patterns identified by sociologists of the professions: Western, male models of a given profession (here, allopathic medicine) marginalized and discredited less elite, female and indigenous players in an effort to maximize the former's status and monopoly over the market in question. A handful of criminal cases targeting these professional abortionists did exist.²⁷ However, treatise authors Hehir and Gribble claimed that most village abortionists were skilful enough to perform abortions without leaving a trace.²⁸ As such, these figures routinely eluded the grasp of the criminal justice system.

There were two common methods of abortion in colonial India, in addition to kneading the abdomen and injecting liquid.²⁹ The first, used earlier in a pregnancy, was the chemical or ‘general’ method, also known as abortion ‘by mouth’. Women tried to induce abortions by ingesting a wide variety of substances. Treatise authors divided these substances, many of which were powerful botanical and mineral poisons, into five categories. Ecbolics stimulated the contraction of the muscular fibres of the uterus. The only known substance in this category was ergot, a popular choice among Britons in India.³⁰ Emmenagogues were substances that promoted menstrual flow. The most commonly used substance of this type was a botanical one called savin (Juniperus sobina), typically in the form of powdered leaves or oil. Oleander, papaya seeds, and carrot seeds were other emmenagogues used in India. Purgatives caused straining in the gastrointestinal tract. Some believed this could cause the uterus to expel its contents.³¹ Various tubers in India were of this kind. In the fourth category, irritants, ‘the uterus participat[es] in the irritant action set up in the system’.³² Quinine, the anti-malarial that enabled colonial rule in many parts of Asia and Africa, was of this type, as were Plumbago rosea (lāl citra), black pepper, unripe pineapple, the bark of the horseradish tree, dried blister fly, and copper. Mineral irritants like arsenic, iron, and mercury appeared occasionally in Indian cases.³³ Finally, a random miscellaneous category of other substances included the juice of bamboo leaves and the tropical fruit known as Randia dumetorum (mainphal). This fruit was an ‘emetic’ (a substance that induced vomiting) recommended as a substitute for ipecacuanha in the treatment of dysentery.

Whether these substances were effective was by no means clear. ‘Effective’ in this context meant that they would terminate the pregnancy without killing the woman. John M. Riddle has suggested that many traditional abortifacients often achieved this aim.³⁴ By contrast, Matthew Sommer emphasizes that the poisonous properties of many herbal abortifacients often killed the women who ingested them.³⁵ The efficacy of oral abortifacients was a key issue of dispute in the case of T. v. T. (1927) before Bombay's Parsi Chief Matrimonial Court—a court that heard cases between spouses from the Zoroastrian community. Mrs T. claimed that her pharmacist husband had forced her to ingest round, white powdery balls that he had brought home from his ‘chemist's shop’. She claimed that she had lost three separate pregnancies as a result. Her husband denied that he had given his wife any abortifacients; he had only given her ‘permanganate of potash’ pills to regulate irregular menstruation.³⁶ Although ‘unblocking the menses’ may have seemed like a euphemism of the day, Leslie Reagan is probably right to insist that we take seriously the distinction made during this era between regularizing menstruation and inducing abortion: the former preceded quickening, while the latter followed it.³⁷ Neither party explicitly stated whether Mrs T.'s pregnancies had reached the point of quickening, but the husband's claims implied that they had not, while the wife's suggested that they had. In any case, Mrs T. denied that her husband ever gave her potassium permanganate pills for the purpose of regulating menstruation.³⁸

Each spouse relied on a number of medical experts. All agreed that a large number of alleged abortifacients were easily obtainable on the black market. There were ‘patent pills’, usually imported from Britain. The most common of these were ‘Ergot-Apiol’ pills (a fungus mixed with a parsley extract) and penny royal pills (made from an herb growing in Europe and western Asia). Other substances were myrrh-, aloe-, lead-, and gin-based or were glandular products extracted from goat and cat kidneys.³⁹

Where the experts disagreed was on the question of efficacy. All were prominent Parsi physicians in Bombay. Mr T. argued that the medical impossibility of his wife's allegations made them unlikely. By his account, the inefficacy of oral abortifacients showed that he would not have given any to his wife—because none worked. The husband's first expert witness, a physician of 35 years’ experience in private practice named Dr Dara M. Dastur, told the court that none of these substances administered at home could induce abortion unless the womb was diseased. There was no sign that Mrs T.'s uterus was unhealthy. Many of the patented products only produced irritation, not miscarriage, by Dastur's account. The second witness for the defence, Lieutenant Colonel Sorab Vajifdar, was part of the Indian Medical Service (IMS), as well as a professor of medical therapeutics at Grant Medical College in Bombay. His view was that these chemicals were either mere irritants or poisons that could kill the woman—and even then would not produce an abortion in one to three days, as Mrs T. claimed had happened. The husband's third witness was Major Shiavax Byramji Mehta, another member of the IMS and associate professor of midwifery at the Jamsetjee Jeejeebhoy Hospital in Bombay. In his professional opinion, no irritant poison taken internally could cause abortion without also killing the woman.⁴⁰

Against them was Mrs T.'s first medical witness, Minocher T. Anklesaria, house surgeon in Dr Temulji's hospital and former associated professor of midwifery at Bombay's Grant Medical College. ‘There are drugs which will cause abortion, every time successfully and without danger to life,’ he told the court. He had seen many such cases in his career of 23 years, over the course of which he had performed over 1,000 surgical abortions and attended to complications from many illicit abortions induced by women chemically. Mrs T.'s second witness, Dr Nowroji J. Vajifdar, was a professor of toxicology and assistant chemical analyser to the Government of Bombay. He told the court that, while no abortifacient was 100 per cent effective, many worked often.⁴¹

Mrs T. won her case—a civil suit for judicial separation. This court, the Parsi Chief Matrimonial Court of Bombay, was unusual in British India because it operated through a jury system of 11 delegates, all from the Parsi community. No other population (Britons included) was entitled to a jury in matrimonial disputes. The delegates voted by nine to two in favour of the cruelty allegation, but Mrs T. had argued that there was physical violence in addition to the coerced abortions. Because the delegates did not give reasons, it was impossible to know whether they accepted her abortion claims specifically—and whose expert witnesses they found more credible. The ‘battle of the experts’ in this case reflected the unsettled state of professional opinion, as was common in the adversarial courtroom.⁴²

The second popular method of abortion acted locally. British and mixed-race Eurasian women further along in their pregnancies often inserted sharp objects up the vaginal canal and into the mouth of the uterus. They used hair pins, knitting needles, pencils, uterine sounds, and catheters. Indian women were more likely to combine mechanical and chemical action through the use of the abortion stick, administered by an Indian midwife or dāī. An abortion stick (called a ‘candle’ or battī) consisted of a stick of wood five to seven inches long, typically from particular types of trees growing in India like Plumbago rosea (lāl citra) or Nerium odorum (white oleander). Tied around one end of the stick was a cloth smeared with an irritant like the Indian cooking spice asafoetida (hīṅg), white arsenic, croton, Semecarpus anacardium (marking nut or bhela), jequerty, or Calotropis gigantea (madar) juice. A variation was the use of three sticks, each one inserted and left for 15 minutes before the next was added.⁴³

Insertion of the stick into the uterus was dangerous for several reasons. It could be sucked completely into the uterus, causing fatal inflammation. It could break, leaving a piece inside the woman and leading to gangrene, also potentially deadly. It could pierce the wall of the uterus, causing internal bleeding and damage to other organs.⁴⁴ The telltale sign of abortion during a post-mortem examination was the discovery of splintered pieces of abortion stick or fibres from its cloth head inside the dead woman's uterus or vaginal canal.

Birth-control advocates (including nationalists) in the early twentieth century tried to avoid referring to the unspeakable ‘others’ of contraception: abortion and infanticide. In a quest to make contraception a respectable part of conjugal life, they worked to distance birth control from more extreme forms of fertility control. India's birth-control movement thus had little to say about abortion, except to offer an easier alternative.⁴⁵ By contrast, the medico-legal archive revealed much about how women terminated pregnancies. This archive was equally rich in insights on the law of abortion and its enforcement—themes to which we now turn.

The law of abortion

Until the early nineteenth century, the concept of ‘quickening’ distinguished legal from illegal terminations in the common-law world. A woman was ‘quick with child’ from the moment at which she first felt the fetus move. Termination of pregnancy was legal until this point and seemed unproblematic for many women ethically and religiously. In law, until the early nineteenth century, the restoration of menstruation was considered something very different from a criminal abortion after quickening. By popular customary norms, too, ‘unblocking the menses’, making a woman ‘regular’, and ‘bringing down her courses’ were everyday undertakings. Quickening could occur any time between the fourth and the sixth month of pregnancy. It was a subjective standard and therefore an impractical one according to Hehir and Gribble:

for these movements may not be perceived at all, or they may be confounded with the motions of flatus, changes in the position of the viscera, or sudden contractions of the muscles. It is manifest that, in criminal cases, it can ordinarily only be ascertained from the statement of the woman herself whether she was quick or not.⁴⁶

During the nineteenth century, conception replaced quickening as the moment at which vitality appeared and common-law jurisdictions introduced newly restrictive abortion laws. This shift criminalized all abortions, except to save the life of the woman. What accounted for the change? The burgeoning of embryological research from the late eighteenth century played an important part, as did the professionalization project of allopathic physicians, who strove to discredit midwives and the quickening standard they retained. Hehir and Gribble were men of their time and profession in rejecting the quickening standard that had previously distinguished the quotidian from the criminal in medical, legal, social, and even religious realms.⁴⁷

Before the IPC came into force in 1862, abortion was a crime in British India punishable by seven to nine years’ imprisonment.⁴⁸ Writing in 1856, though, Chevers suggested that the law would only be enforced in abortion cases when the woman had died. Otherwise put, even an abortion on a woman who was ‘quick with child’ would not be pursued by authorities pre-IPC if the woman survived. Chevers referred to a circular order of 1824 instructing the lower courts that ‘in regard to Abortion, or procuring it, the Court does not consider these offences to be of a heinous description unless death ensue’. A set of regulations from 1816–24 warned that ‘[p]olice officers inquiring into any charges of Abortion unattended by death, unless expressly ordered to do so by the Magistrates, shall be liable to fine and dismissal’.⁴⁹ And, in Bengal, an 1816 regulation that remained in force in 1853 ordered chowkidars (police watchmen) not to interfere or report to police any cases of ‘petty assault, abuse, adultery, or abortion’ unlike cases of ‘murder, robbery, house-breaking or theft’.⁵⁰

The IPC introduced a broader range of abortion-related offences and (at their upper end) harsher sentences than what had come before. Causing abortion for reasons other than saving a woman's life could result in a three-year prison sentence (s. 312). If the woman was quick with child, the sentence could increase to seven years. A person who induced abortion in a woman without her consent could be transported for life or imprisoned for up to ten years (s. 313). If the woman died (s. 314), the penalty was imprisonment for up to ten years (if the deceased had consented to the abortion) or transportation for life (if she had not). For inducing abortion chemically, the IPC's provision on noxious substances imposed a prison sentence of up to ten years (s. 328).⁵¹

There were signs that the IPC's new rules on abortion were occasionally enforced. In Queen-Empress v. Ademma (1886), a lower court acquitted a woman of self-inducing an abortion because she was not yet ‘quick with child’. This judge seemed to cling to the older, more liberal approach toward abortion. On appeal, the decision was reversed: under the IPC, abortion was a crime even before quickening.⁵² The Madras High Court might have added that it was also a crime even if the woman lived. There was also increased police surveillance of women deemed ‘at risk’ of committing abortion, as Durba Mitra has shown. The IPC and new Indian Police Act of 1861 contributed to heightened police interference with living women. The monitoring and forced genital examination of women occurred in Bengal during the 1860s to 1880s to police potentially mendacious or deviant women in cases involving rape, abortion, and infanticide.⁵³

And yet other, later episodes suggested that the older standard of non-interference lived on. In 1884, both the Secretary of State for India and the Lieutenant Governor of the North-West Provinces refused to restrict the publication or circulation of a book ‘in the simple vernacular of the country’ that told women how to induce abortion.⁵⁴ The 1927 Bombay case of the pharmacist and his wife (T. v. T.) was also revealing on this point. First, the testimony of the wife's physician experts suggested that medical professionals did not actively cooperate in enforcing anti-abortion law. Dr Minocher T. Anklesaria told the court that, whenever women who had aborted criminally ‘by mouth’ at home came to see him with uncontrolled bleeding, he required that they tell him what substance they had taken. But he would not pass this information on to the police: ‘In these cases, it is not part of my duty to inform the police. I don't know whether the law enjoins us to inform the police. I have never informed the police about these cases. In the hospital we don't report cases of abortion to the police.’⁵⁵

These women were all guilty of the crime of abortion under IPC s. 312, and yet none was pursued by the criminal justice system because the doctors who helped them did not report them to the police. If Bombay was a jurisdiction where criminal abortion was aggressively prosecuted, such medical practice—and admission of the practice in court—could have exposed the speaker and his institution to criminal sanctions. The phenomenon reflected physicians’ vision of doctor–patient confidentiality, explored shortly.

Mrs T.'s decision to make the abortion accusation at all was also revealing. Mrs T. was a working-class Parsi woman in Bombay who petitioned the Parsi Chief Matrimonial Court for a judicial separation on the basis of her husband's cruelty. Under Parsi personal law, judicial separation entailed a legal separation and permanent alimony for the wife. Neither party had the right to remarry. It was easier for a wife to prove judicial separation than divorce, as she only had to prove cruelty. To get a divorce, she had to prove both that her husband had been adulterous and that there had been another factor like cruelty.⁵⁶ Mrs T. and her witnesses alleged that her husband had physically abused her and that, on two occasions, he had pointed a revolver at her or their children. She told the court that he had often deprived her and her children of food, money, and furnishings; that he had routinely dismissed the servants to punish her; and that he had forced the family to help run an illicit bookmaking (or bet-taking) ‘bucket-shop’ business out of their home. Mrs T. also claimed that her husband had forced her to induce abortions on three occasions—in 1921, 1923, and 1925. Before Mr T. started running his gambling operation based on the Bombay horse races and American ‘futures’, he had been a chemist or pharmacist. It was during that time that he had allegedly brought home pills, ordering his wife to take them. According to Mrs T., her husband threatened to disown the resulting children if she did not swallow the pills. She claimed to have taken the pills and to have aborted alone at home each time. Her testimony documented in striking detail the extreme pain, sickness, and bleeding she experienced for days after ingesting the pills: ‘I took the pills under pressure and suffered agony untold for 3 days’ that was ‘more severe and cruel than labour pains’. She described pulling out clots ‘like shreds’ from her vaginal canal. She did not see a doctor after any of these episodes.⁵⁷

Mrs T. had three living children, but she had also had two natural miscarriages. Her husband's lawyer suggested that she had concocted the abortion allegations on the basis of these past experiences. Mr T.'s lawyers put on the stand three medical experts. All testified that Mrs T.'s story was a lie because it was impossible. The public believed that abortifacients were obtainable on the black market and that they worked. But the public was mistaken at least on efficacy, according to the defence.

The debate over efficacy has already been explored above. What was intriguing was Mrs T.'s decision to allege abortion at all—even if she was claiming it was coerced. Lower criminal court records have yet to be unearthed (if they exist at all), making it impossible to confirm that an IPC prosecution for abortion did not flow from the T. v. T. civil suit. Nonetheless, the openness with which Mrs T. and her lawyers described the abortions in court implied that they feared no such thing. If the parties had been operating in a context in which criminal abortion was aggressively policed and prosecuted, Mrs T.'s lawyers would never have allowed her to bring up the abortions. In such a scenario, Mr T. could have been convicted under the IPC's anti-abortion and poisoning provisions, but Mrs T. also would have been at risk. She would have argued that she had acted under compulsion, but it was not clear that the type of pressure applied would have satisfied the criminal test. Although Mr T. was allegedly violent toward his wife at other times, he threatened her with economic and social sanctions (disowning the child and forcing her out of the marital home) if she refused to take the pills. The IPC required that the threats reasonably caused the apprehension of ‘instant death’ (s. 94). If Bombay had been a jurisdiction where the state pursued abortion cases in a determined way, Mrs T. could have been risking a three-year prison term herself by making the abortion argument in the matrimonial suit. As the IPC stated: ‘[a] woman who causes herself to miscarry is within the meaning of this section’ (s. 312). Mrs T. also had sufficiently strong evidence of other kinds of abuse not to need the abortion claims to win her case. We can only conclude that this court, which had plenty of other interactions with the lower criminal courts (known as the ‘police courts’), did not refer abortion cases to the police courts when the woman survived. It seemed that the old rule lived on and that the IPC's stricter rules on abortion remained regularly unenforced.

Challenges of detection

Why was the approach toward abortion so permissive, given the law laid out by the Penal Code? A number of factors were germane, including practical impediments to detection, the Hindu widow-remarriage movement, the colonial state's concern with false charges, imperial separations among British couples, and physicians’ reluctance to cooperate with the criminal justice system.

Detection was difficult when women survived abortions. As already noted, treatise authors claimed that Indian village abortionists could terminate pregnancies without a trace. In 1917, W. D. Sutherland warned students at the new Detective Training School in Bengal that

You will find that your cases will break down because unless the woman is examined by a competent medical man, within 24 hours of the birth of the foetus none can tell for certain that the woman has had an abortion. And, unless the medical expert is really competent in this department, he may not be able to give you any information, even if he examines the woman within a few hours after the abortion.⁵⁸

Even when women died of abortion-related complications, though, there were other special barriers to detection. These factors were distinct to South Asia and the colonial context. In 1895–96, Charles H. Bedford presented a paper to the Edinburgh Obstetrical Society on the abortion-related cases he had observed, almost entirely involving women's corpses, while he was chemical examiner for Punjab in 1893–94. He highlighted the many ways in which an abortion-related death could be masked in India. Postpueral fever looked very much like malaria, for instance. A 25-year-old Muslim woman had died of ‘fever’ (implicitly malarial) and was buried and then exhumed four days later for examination. An inch-long fragment of wood was found lodged in her cervix and the chemical examiner realized that she had died of an abortion attempt. Relatives of another woman claimed that she too had died of fever. However, the chemical examiner found a cotton wool pledget coated in saffron (an abortifacient by some accounts) in the deceased's vaginal canal.⁵⁹

Purity laws, caste restrictions, and mistrust of Britons and the colonial state prevented colonial authorities from obtaining bodies for post-mortem examination in many cases in which an Indian woman had died. Post-mortems would normally be carried out by the local civil surgeon or (in larger centres) by the coroner's surgeon. However, if this official wanted to have certain body parts or substances tested chemically, he would send samples to the chemical examiners at their regional labs. For the testing of blood samples, particularly for precipitin testing to establish the species of origin, material had to be transported even farther—to an official in Calcutta called the imperial serologist. In abortion cases, civil surgeons often sent the contents of the stomach (looking for oral abortifacients) along with the uterus and upper vaginal canal (looking for local irritants and physical signs of abortion sticks). Substances found in the woman's possession, home, or clothing might also be submitted for testing, in case these were abortifacients. The vast distances between many provincial outposts and regional capitals where the chemical examiners had their labs made it challenging to transport body parts quickly enough to avoid decomposition, especially during the ‘hot weather’.⁶⁰

There was also cremation. Decomposing corpses became bloated with gases. In hot climates, bodies could burst unless cremated or buried relatively soon after death.⁶¹ Hindu communities practised rapid cremation, typically within 24 hours of death.⁶² Only mineral poisons (not plant-based ones) preserved in the spongy tissue of bone fragments might be detectable after the average cremation. If a family was affluent and could afford more wood, the cremation would be more complete. If the family was poorer, the body would only partly be burnt and the remains dispersed in a river. Bedford noted that, unless a complaint was filed immediately with the police (which was rare), the crucial body parts would be ‘in ashes, or miles down the river, or undergoing the process of digestion in the alimentary canals of sundry fish or alligators’.⁶³

An ongoing debate in the late nineteenth century pitted burial against cremation. In ‘the battle between the Torch and the Spade’, cremation gained credence and fashionability even among Britons from the 1870s onward.⁶⁴ Cremation did not require valuable real estate, unlike burial. Nor did it infect the water supply or create a terrible, rotting smell reported near overcrowded ‘stacked’ British gravesites. Easier preservation and the transportability of ashes may equally have held special appeal for imperial subjects moving along global transit ways. Diseases like cholera, dysentery, and the plague were rumoured to have returned to human populations after afflicted bodies buried centuries before were disturbed.⁶⁵ And yet, despite all of its benefits, cremation posed a constant threat to the state's crime-detection efforts in India. As the Punjab chemical examiner D. R. Thomas observed in his annual report for 1931, rapid cremation was ‘a most dangerous loop-hole’ from a forensic perspective.⁶⁶

Before the IPC, criminal sanctions against abortion were generally only imposed when a woman had died. Even after the tighter restrictions of the IPC were introduced on paper, though, this earlier approach persisted in practice. And, even when women died from abortions gone wrong, the physical, cultural, and religious landscape of South Asia denied the colonial state's experts access to many women's bodies. The Hyderabad case, discussed shortly, became a major investigation in part because the woman who died was not from a community that practised cremation. The body of Mrs Whittaker could be exhumed and re-examined, and it was.⁶⁷

Abortion and Hindu widows

The contours of gender-related reform campaigns also contributed to the lukewarm nature of anti-abortion efforts. From the early nineteenth century, a series of social movements about women emerged across colonial South Asia.⁶⁸ One such movement was the campaign to permit and destigmatize the remarriage of Hindu widows. Traditionally, Hindu women in many upper-caste communities did not remarry after the death of their husbands. They lived under ritually and materially restricted conditions in the homes of their dead husbands’ families.⁶⁹ The Hindu remarriage movement focused on the plight of young widows, including virgin widows whose husbands had died before adolescent cohabitation began.⁷⁰ Unable to remarry, some widows of childbearing age had extramarital relationships and became pregnant. They turned to abortion to avoid social and economic ruin.⁷¹ Financial support from their dead husbands’ families was contingent upon the widows’ continuing celibacy, although occasionally the courts tried to soften this position.⁷²

As early as the 1830s, colonial administrators linked abortion to the prohibition on Hindu widow remarriage. Commenting on the draft text of IPC s. 312 (on abortion), one member of the Indian Law Commission expressed scepticism about trying to crack down on abortion while young widows were prohibited from remarrying: ‘I much doubt the policy of providing heavy penalties for the repression of the offence of causing miscarriage by the woman herself whilst the barbarous institutions of the country create the offence.’⁷³ The widow-remarriage movement portrayed widows as hapless victims of inhumane norms. One 1856 petition signed by ‘312 native subjects of India’ argued that the Shasters in fact did permit Hindu women to remarry in five situations: if their husbands died, were long absent, or became ascetic, impotent, or apostates. Because these texts had been ignored in favour of a blanket ban on widow remarriage, the petitioners argued that abortion had become a common practice among young Hindu widows.⁷⁴

The Hindu remarriage campaign culminated in the passage of the (Hindu) Widow Remarriage Act of 1856, which affirmed the validity of widows’ remarriage contracts under Indian law. A continuing campaign to change social attitudes followed, but the stigma remained. The Hindu widow remained the quintessential figure associated with criminal abortion from the 1860s until the end of British rule in 1947. An 1885 editorial in the Times of India insisted that infanticide and abortion were ‘the inevitable result of a custom that condemns twenty-one million women to perpetual widowhood’.⁷⁵ According to one letter to the editor in the same year, widow remarriage was still deemed a ‘more heinous crime’ worthy of exclusion ‘from caste and society’ than abortion, child desertion, or a criminal conviction.⁷⁶ Hehir and Gribble made the following observations in 1892:

In this country it is, no doubt, true that there are a very large number of criminal or violent abortions, and that an unfortunate widow who has yielded to temptation has every reason, through fear of exposure, loss of caste, etc., to resort to such means in order to save her reputation. At the same time, it must be remembered that everything and everybody are against her. There are probably suspicions of her immorality; and in a small village community, where nearly everything that goes on is known, people are on the look-out, and even if she should miscarry naturally, she is sure to be suspected of having used criminal means to produce abortion.⁷⁷

Three decades later, Waddell noted that the majority of known abortion cases in 1920s India still involved Hindu widows.⁷⁸ As long as the taboo on remarriage continued, so would the association of widows and abortion.

Between the mid-nineteenth and mid-twentieth centuries, coroners in Bombay Presidency carried out inquests on young Hindu widows who had died following attempted abortions. The coroner led the process whereby a coroner's jury decided whether an unusual death was a suicide, homicide, or accident—or had occurred ‘suddenly by means unknown’.⁷⁹ He delegated the post-mortem examination to the coroner's surgeon. If the coroner's jury found that the death was a murder, a criminal trial would follow the inquest (provided there was a suspect). This trial would establish whether a particular person had committed the murder. If the coroner's jurors found that the death was a suicide, accident, or the result of ‘means unknown’, the case ended there.⁸⁰

In some inquests, Hindu widows died by poisoning themselves after attempting to abort ‘by mouth’. One young widow in Ahmedabad died after taking drugs given to her by her paramour in 1849.⁸¹ More, though, involved later-term abortion attempts by ‘local’ means. An 1872 inquest considered the death of Abbai, a 30-year-old widow who lived with her sister and stonemason brother-in-law. The coroner's surgeon, Sidney Smith, concluded from the post-mortem that she had died of peritonitis followed perforation of the intestines during an abortion. Five years later, a 25-year-old widow named Heerabai was also found to have died of peritonitis following an abortion. She had been a widow since the age of 11.⁸²

Inquest cases were by definition fatal ones. For women who survived, the colonial state would only have added to these women's suffering by prosecuting them for abortion. Such action would also undermine the portrayal of Hindu widows as victims—a characterization essential for the remarriage movement. In other words, a light touch on abortion when the women were still alive was the compromise needed to prioritize another social-reform campaign.

False accusations

Another explanation for the state's half-hearted enforcement of anti-abortion law was a heightened concern with false accusations among South Asians. This anxiety permeated the criminal justice system and reflected a deep-seated British belief in ‘native mendacity’—the idea that colonized subjects dissimulated chronically. Most British lawyers and judges believed that Indian witnesses lied much of the time and that perjury and forgery were rife.⁸³ The IPC included extensive provisions on false evidence and ‘offences against public justice’ (IPC, ss. 191–261), including false charges (s. 211). In rape trials, these assumptions operated against Indian women who were alleging rape, making rape convictions particularly rare.⁸⁴ Commentators worried about native mendacity, too, in creating the abortion provisions of the IPC. Here, though, the concern was not that women would lie in order to frame innocent men. Rather, the drafters of the Penal Code expressed the concern that innocent women (and their families) could be victimized by their enemies, who might falsely allege that these women had undergone abortions. In the words of one Indian Law Commissioner during the 1830s:

I have known groundless and false charges of this nature and the parties exposed to the pain of a criminal investigation when there was no evidence whatever as the existence of the foetus, and it was not established therefore that the woman was with child or that there had been an abortion.⁸⁵

The Law Commission's chairman and future prime architect of the IPC, Thomas Babington Macaulay, elaborated:

We entertain strong apprehensions that this section may be abused to the vilest purposes. The charge of abortion is one which, even where it is not substantiated, often leaves a stain on the honor of families. The power of bringing a false accusation of this description is therefore a formidable engine in the hands of unprincipled men. This part of the law will, unless great care be taken, produce few convictions but much misery and terror to respectable families and a large harvest of profit to the vilest parts of society. We trust that it may be in our power in the Code of Procedure to lay down rules which may prevent such an abuse. Should we not be able to do so we are inclined to think that it would be our duty to advise his Lordship in Council rather to suffer abortion, where the mother is a party to the offence, to remain wholly unpunished than to repress it by provisions which would occasion more suffering to the innocent than to the guilty.⁸⁶

In a case from 1861, a Brahmin widow and her paramour were held in police custody on suspicion of committing abortion. Colonial authorities seemed unlikely to prosecute. ‘You will doubtless be on your guard’, wrote one British official to another, that the complaint could be forged ‘from feelings of enmity toward the woman’.⁸⁷ Colonial anxieties over ‘native mendacity’ operated against individual women in rape cases. On abortion, though, they could work in women's favour.

As a safeguard against false allegations, the drafters of the IPC made abortion a ‘non-cognizable offence’. In Indian law, criminal offences were either cognizable or non-cognizable. The former were generally more serious crimes, for which police officers could arrest without a warrant. As a non-cognizable offence, abortion was more like a misdemeanour than a felony elsewhere in the common-law world. This status made the pursuit of abortion cases slower and more laborious for the police. By putting abortion into the category of less serious offences, colonial legislators made anti-abortion law harder to enforce.⁸⁸

Fear of the false was strong among colonial officials and the case law confirmed the existence of some false allegations of abortion. We can accept that fabrications may have existed without endorsing the culturally denigrating and racist explanations for them in the colonial sources. Sometimes, a village chowkidar threatened to accuse a pregnant widow of planning an abortion—unless she paid him a bribe.⁸⁹ Another body of cases took the form of prosecutions for criminal defamation (IPC, ss. 499–502). The Bombay criminal courts encountered such cases, as in 1869 when a man named Roopa Ragoo was convicted and given a six-month prison sentence for falsely accusing a widow named Yenkee of being pregnant and taking an oral abortifacient.⁹⁰ A more elaborate ruse was revealed in the 1882 case of Bhimjee Khairaz and Pandoorun Hurrychund, who were each sentenced to a year's rigorous imprisonment. These men had gone to the house of a Hindu widow named Lukhmibai. One falsely accused her of having an abortion. The other, disguised as a police officer, threatened to ruin the reputation of the woman and her family unless they paid Rs 200. When Lukhmibai and her family refused to pay, the two men went to the Byculla police office and lodged a report, claiming that the abortion had been committed with the help of two midwives and that they (the two men) had been offered Rs 50 as ‘hush money’. Going to the police station was the pair's mistake. They were soon in police custody. The widow, on the other hand, was examined by the police surgeon, who declared her to be ‘totally free from the slightest suspicion of the offence she was charged with’. Khairaz was convicted of giving false information to the police with intent to ‘annoy’ Lukhmibai. Hurruchand was convicted of impersonating a police officer.⁹¹

After Lukhmibai's case, the courts changed their approach to the medical examination of women in such cases. They probably realized that a forced exam itself could be the aim of the original accuser and that the courts could not allow legal process to be used punitively.⁹² By 1889, the courts ruled (again in Bombay) that a court in a pregnancy defamation case could not order a woman to undergo a medical examination. In Queen-Empress v. Pudmon, the accused was found guilty of criminal defamation after he publically and falsely accused a woman ‘before a number of her caste people’ of being pregnant by adultery. The court could not order a medical examination of the woman.⁹³

Pudmon was relied upon in the abortion defamation case of Nathu Mal v. Abdul Haq, decided on appeal by the Lahore High Court in 1929. Nathu Mal was a complicated case involving not just criminal defamation, but also corruption (IPC, s. 218) and extortion (IPC, s. 384). The central culprit was a sub-inspector of police named Abdul Haq in the Punjabi town of Asandh. Haq had clashed with one Nathu Mal over a proposed lease of a property. Haq threatened Mal with ‘serious consequences’ and then concocted a plan to harass Nathu Mal and his family. Haq was having an affair with a married nurse named Yuhanna Khan and convinced her to create a forged document (signed by a fictitious person) alleging that Nathu Mal was having an illicit sexual relationship with his own widowed daughter-in-law. The memo claimed that the daughter-in-law was pregnant and that she and Nathu Mal were trying to terminate the pregnancy by obtaining drugs from local doctors and nurses. The memo recommended that the local police take the daughter-in-law into custody to safeguard the pregnancy and her life: she was a suicide risk. Abdul Haq incorporated this false document into a report to his superiors. He claimed to have made inquiries himself and that the allegations were true. To Nathu Mal, Abdul Haq offered to drop the matter if paid a bribe of Rs 3,000, but Nathu Mal refused. As a result, the police took Nathu Mal's daughter-in-law into custody. She gave a statement denying that she was pregnant. The police were about to force her to undergo a medical examination when a criminal case was initiated against Abdul Haq.⁹⁴

The lower court acquitted Abdul Haq. On appeal, though, the Lahore High Court set this decision aside, declaring it ‘a gross miscarriage of justice’. The High Court sent the case back to the lower court for retrial, clarifying (citing Pudmon) that the daughter-in-law could not be compelled to undergo a medical examination. Furthermore, her refusal could not be used as evidence against her.⁹⁵ Here, the trail ran out. It was not clear what eventually happened to the crooked police inspector and the victims of his elaborate scheme. However, the case did illustrate the type of scenario that colonial officials envisioned when they constructed the IPC provisions on abortion. Here was another reason for the state to avoid aggressive enforcement of anti-abortion law: accusations of inducing miscarriage could produce miscarriages of justice.

Imperial separations

There were clear reasons for the colonial state's hands-off approach to abortion among South Asian women, namely special challenges to detection, the Hindu widow-remarriage movement, and fear of false accusations. But why were colonial administrators also less willing to enforce the Penal Code's stricter approach in cases of British women who had undergone criminal abortions? (The personal law system governed family law, but criminal law applied to everyone in British India, regardless of religious affiliation.)

On the one hand, forensic evidence was often easier to procure in fatal cases when the women were British because most of these women were buried, not cremated. On the other hand, the colonial sources were generally less direct when discussing abortion cases involving British women. This obliqueness may have reflected an unwillingness to openly discuss a private, sexual topic pertaining to white women on the colonial stage. Treatise authors did write in general terms, though, observing that certain methods of abortion were more commonly used by British and Eurasian women—like the ingestion of ergot and quinine and the insertion of sharp objects like knitting needles.⁹⁶

In addition to using abortion as a form of family planning, some British women in India turned to abortion for another purpose. This scenario was particular to the imperial setting, although not explicitly acknowledged by British authorities. The exigencies of empire forced many British couples to spend long periods of time apart. While their husbands were on the other side of the world sometimes for years at a time, some women developed relationships with other men, became pregnant, and sought abortions.⁹⁷ This scenario provided the basic facts for one of the most publicized abortion-related cases of the late-colonial period: the case of Edith Whittaker and Arthur Templeton from Hyderabad (1896–1902). Newly married, Mrs Whittaker moved to India expecting her husband to join her there in due course. He was a mining engineer working in West Africa and Brazil. In India, Edith Whittaker stayed at the home of the Templetons—a married couple with a large family. Arthur Templeton (the husband) and Edith Whittaker allegedly had an affair. When Mrs Whittaker became pregnant, she had an abortion. She died of complications. A similar imperial separation also set the background for a highly publicized case in Britain on doctor–patient confidentiality: the case of Kitson v. Playfair (1895–96). In this case (discussed below), Mrs Kitson was living in England while her husband was away in Australia for 15 months. She experienced health problems and consulted Dr Playfair, who happened to be married to her husband's sister. The doctor concluded that his sister-in-law had terminated an extramarital pregnancy.

Within India, a scaled-down version of such separations was common. ‘Hot weather’ separations occurred regularly during the summer. Many colonial officials stayed in the lowlands to continue the work of colonial administration while their wives escaped to higher altitudes.⁹⁸ Hill stations dotted British India, from the Himalayan band that stretched across its north to the Western Ghats down the west coast and the Eastern Ghats along its east. These towns became famous in colonial popular culture as sites where attractive married women were trailed by younger male admirers, including unattached military men. Indrani Sen has called this pattern ‘a curious colonial reinvention of the medieval “courtly love” tradition’—the unconsummated love between the hill-station ‘flirt’ and her young admirer.⁹⁹ Sometimes, though, consummation did occur. In popular lore, one Himalayan hotel was famous for ringing a bell early in the morning so that guests could return to their own beds before emerging from their rooms officially for the day.¹⁰⁰

The British husbands who ran the colonial state may have seen themselves as vulnerable to their wives’ adultery and been motivated to take a hard anti-abortion stance. On the other hand, they might have wanted to keep such happenings private, particularly in the colonial setting where humiliation and vulnerability (through cuckoldry) could undermine the authority of white ruling males. That said, it may have been that affairs were so common during imperial separations that extramarital relations (by wives) were surprisingly mundane. Even if so, these husbands may still have wanted any extramarital pregnancies terminated to avoid the lasting legal and financial consequences of children deemed theirs by law if not by biology.¹⁰¹ More broadly, British men may have seen abortion as a necessary mechanism for controlling the size of their own families, whether there were extramarital relationships or not. In other words, colonial administrators may have had reasons for wanting to keep abortion discreetly available to British women, including their own wives. The same convenience would have been equally useful to husbands who impregnated other women.

Physicians and medical ethics

For South Asian and British women alike, most abortions remained invisible to the state when the women survived. When a woman died, though, abortion was harder to hide. Focusing on cases in which the woman had died enabled the state to sidestep the difficult ‘live’ cases. In fatal cases, authorities could pursue the abettors and avoid the ethically complicated position of the women, often regarded as victims of desperate and unfortunate circumstances. Even in some fatal cases, though, there was resistance from physicians. In England, the medical profession (or a well-organized part of it) lobbied successfully for the passage of stricter anti-abortion laws from the late eighteenth century onward.¹⁰² In India, a contrary strain of medical culture asserted itself. Here, key physicians resented the criminal law's intrusion into their relationships with patients. What would be known in a later period as doctor–patient confidentiality became a key issue in the Hyderabad abortion case through the enigmatic figure of the Irish military physician and treatise author, Patrick Hehir.

The events of the case occurred in late 1896 in Hyderabad, the vast territory in South India ruled by the Nizam. Hyderabad was the wealthiest and most independent of the princely states. Despite this princely state's relative autonomy, the British Indian state asserted its influence through the presence of a politico-diplomatic figure called the British ‘Resident’. A community of Britons also lived in Hyderabad. Among them was Arthur Templeton, a 37-year-old Briton described as warm-hearted, generous, and impulsive. He ran the Hyderabad Chronicle, a small English-language publication. Marion Edith Whittaker was a vivacious 23-year-old newly-wed who came to stay with the Templetons while her husband was away.¹⁰³

Edith Whittaker and Arthur Templeton had an affair and she became pregnant. She had a termination, whether by ingesting quinine or by abortion stick with quinine grains stuck to its head. (Preserved in spirits and with the placenta attached, Mrs Whittaker's uterus would become an exhibit in the criminal proceedings that followed.¹⁰⁴) Quinine was a popular abortifacient among Britons and Eurasians, and it seemed to end Edith Whittaker's pregnancy.¹⁰⁵ However, she developed complications a few days later. The Templeton family doctor and Residency Surgeon was Edward Lawrie (or Laurie), but Mrs Whittaker claimed that he had made unwanted sexual advances.¹⁰⁶ Instead, she turned to Patrick Hehir, the other British physician in Hyderabad. He tried to treat her, but her situation worsened. Tended by Hehir and the Templetons in their home, Edith Whittaker died ten days after the abortion, on 16 December 1896. Her body was hastily buried, exhumed, and then buried again.

The post-mortem examination of Edith Whittaker's body was carried out by two junior doctors, although both Lawrie and Hehir attended. The report concluded that she had died of septicaemia resulting from an abortion. Arthur Templeton was charged with causing the death of a woman with intent to cause miscarriage (IPC, s. 314), abetting this crime (s. 109), and giving false evidence (s. 193).¹⁰⁷ The case began at the British Resident's Court of Inquest in Hyderabad, which found that Mrs Whittaker had not died of natural causes.¹⁰⁸ Templeton's case then went through preliminary criminal proceedings in the Residency Magistrate's Court in Hyderabad.¹⁰⁹ The case was sent on to the Bombay High Court for a full criminal trial and a special jury acquitted Templeton.¹¹⁰ Although the events of the case occurred in a princely state, the case began and ended in British Indian courts, not those of the Nizam. From the early 1870s, the Government of India had asserted an aggressive view of extraterritoriality over the trials of British subjects who were accused of crimes in princely states.¹¹¹

The medical evidence in the criminal case was problematic. There were inexplicable inconsistencies between the post-mortem report and the testimony of physicians Lawrie and Hehir, and even between different parts of Hehir's own testimony.¹¹² Hehir claimed that Edith Whittaker had come to him asking for an abortion, but that he had declined. Later, Hehir treated her complications by ‘plugging’ the uterus to stem the bleeding. As Mrs Whittaker's state worsened, Hehir brought in Lawrie for consultation. Hehir realized that there had been an abortion, but he did not tell Lawrie. This omission was striking for many reasons, one being that the two doctors knew each other well. They had written a book together and Hehir dedicated his co-authored medico-legal treatise to Lawrie.¹¹³ Only after Mrs Whittaker's death did Hehir tell Lawrie that there had been an abortion. For this, both Hehir and Lawrie were severely criticized by British officials, as was Lawrie for writing a positive annual IMS report about Hehir even after learning of the omission.¹¹⁴ Had they been in British India, Hehir might have been tried in a military court for unprofessional conduct because he misled Lawrie. Instead, his contract with the Foreign Service was not renewed and he returned to British India.¹¹⁵

Other aspects of Hehir's actions were suspicious. He created confusion by oscillating in his medical testimony between using the terms tetanus and septicaemia in their older and newer senses (pre- and post-bacteriology).¹¹⁶ He claimed to keep poor or no notes on many of his cases or to have lost them.¹¹⁷ His case books that were presented in court contained inaccurate dates and other details and were ‘deliberately cooked for the occasion’, claimed Templeton.¹¹⁸ Hehir, Lawrie, or both were accused of giving a misleading demonstration and lecture on abortion—over Edith Whittaker's dead body—to a group of medical students. The two junior physicians about to do the post-mortem on Mrs Whittaker had attended.¹¹⁹ Hehir and Lawrie were also present at the post-mortem. They ‘helped’ by examining Mrs Whittaker's blood for the presence of microbes under a microscope.¹²⁰ Hehir signed the death certificate, which was oddly issued after the post-mortem. The standard practice was to issue it before. He worded the certificate's text carefully, stating that Mrs Whittaker had died of tetanus ‘following’ an abortion, not that her death was ‘caused by’ one.¹²¹ He experienced a strange episode combining nervous breakdown and paranoia. By Templeton's account, Hehir requested armed guards for protection one night, claiming that people were trying to break into his house. When ‘two Africans’ were sent to him, he ‘abused them and threatened to shoot them’, making them think he was mad. This episode could have been orchestrated, as Templeton suggested when he said that Hehir was either ‘off his head’ or pretending to be so. Creating a history of personal instability and memory lapses could make Hehir's erratic record-keeping and inconsistent testimony look less suspicious.¹²² The doctor also hired a top Madras barrister to ‘observe’ the criminal proceedings on his behalf—an unusual move that raised suspicions about Hehir's own role in Mrs Whittaker's death.¹²³

In fact, it was remarkable that Hehir was not on trial himself. It was not impossible that he had carried out the abortion. Templeton's lawyer repeatedly suggested in court that Hehir, not Templeton, was the rightful defendant in the case.¹²⁴ Equally though, Hehir may have committed ‘malpraxis’ (a civil wrong) by plugging the uterus to stop the bleeding. Other medical experts told the court that this was not a usual or justifiable action. One might plug the uterus in a case of excessive menstruation, but never after an abortion. If part of the detached placenta remained in the uterus, it would decay and cause blood poisoning. In other words, the septicaemia that killed Edith Whittaker may have resulted from Hehir's plug and not from an abortion.¹²⁵

There was also the relationship between Hehir and Templeton. They were good friends once. Both were Freemasons, as was Lawrie (and Hehir's co-author, J. D. B. Gribble). The case was therefore not just among Britons in a princely state, but within the even more exclusive and secretive Masonic fraternity.¹²⁶ Hehir had been the Templetons’ family doctor and Templeton had helped Hehir to prepare for publication part of his co-authored treatise, Outlines of Medical Jurisprudence for India (Madras: Associated Publishers, 1929). The treatise included a section on abortion.¹²⁷ They had fallen out after Templeton complained about Hehir's medical treatment of a Templeton child, but the men had made up by the time of the abortion. During the trial, though, Hehir gave damning evidence against Templeton. He claimed that Templeton had acquired a knowledge of abortion through work on Hehir's treatise. Templeton responded that he was being framed and that Hehir was backed by Templeton's enemies at the Nizam's court.¹²⁸

There were many rounds of proceedings and copious amounts of medical evidence. The Bombay High Court found the scientific evidence so thin that it wanted to have Mrs Whittaker's body exhumed again for a second post-mortem. However, the cemetery was in fact in princely territory. As a result, the court could do nothing but acquit Templeton. (There was equally a question of whether the first disinterment had been legal. St. George's Church was in British territory, as it lay in the British military cantonment, but its cemetery was not.¹²⁹)

Templeton went on to launch a civil suit in Bombay against Hehir and Lawrie, as well as a female doctor named Ada DaCosta (or D'Costa), alleging personal loss to his business, reputation, and social position. The harm was caused by the three doctors’ conspiracy to secure Templeton's conviction by giving false evidence in the Bombay criminal trial. Templeton had previously suggested that Lawrie was being blackmailed by Hehir, who had discovered that Lawrie himself was having an affair. And Templeton claimed that DaCosta had assisted Hehir and helped cover up his role because she herself was having an affair with Hehir. Hehir was married. Like many imperial couples, though, he and his wife lived apart.¹³⁰

Templeton lost his civil suit on appeal in the Bombay High Court. If the three physicians had conspired to secure his conviction and give false evidence in the Bombay Sessions Court, the proper course of action would have been criminal prosecution (including for perjury), not a civil suit for damages. There were also jurisdictional problems. Not only did Templeton fail to win damages in the end; he also had to pay everyone's legal costs.¹³¹ He filed a similar suit in the district court of Secunderabad, but lost there, too.¹³² Hehir, on the other hand, emerged unsullied.

Noting that he had just 11 years of service in the Indian Medical Service at the time of Mrs Whittaker's death, colonial officials predicted in 1897 that Hehir's actions in the Hyderabad case would destroy his career. The ‘shifty nature of the evidence he gave’ raised ‘grave doubts as to his fitness to return to the military medical service or to hold any position of trust or responsibility’ there.¹³³ In fact, Hehir advanced through the military medical ranks, with notable moments of high adventure and glory. At the Siege of Kut in the First World War, he used the opportunity of being blockaded with his Indian troops to collect data for an article on chronic starvation. He participated in high-level discussions on military medicine and public health—from chloroform commissions in the princely states to international commissions on military health.¹³⁴ By writing during his ‘scanty leisure hours’, he produced a breathtaking corpus of leading titles on malaria, alcohol, sanitation, disease in Indian-frontier warfare, medical aspects of the military march, and the medical profession in India, adding to his earlier works on medical jurisprudence and opium.¹³⁵ Through promotions, he leapfrogged over men senior to him—an upward trajectory defended by his superiors on the basis of merit.¹³⁶ He acquired a large collection of medals and military honours and was knighted in 1920. Hehir's obituaries described an illustrious career and made no reference to the abortion case that might have ruined him.¹³⁷

Arthur Templeton experienced less success in the wake of his entanglements with the law. In addition to running his newspaper, he had been working as an agent for Messrs Henry S. King and Co. of London and was fired as a result of the publicity, despite his acquittal. Several years later in 1904, colonial officials complained to each other that Templeton was a troublesome character. Since losing his agency job, he had been supporting himself by blackmailing other Britons, threatening to publish their secrets in his newspaper if they did not pay him off. When the Nizam's government expelled Templeton and his lawyer from the territory, British authorities were relieved. As Viceroy of India, Lord Curzon, commented: ‘Here are two admitted scoundrels—one superior and notorious, the other inferior and less known to fame—but both of them a scourge to the Native State in which they have taken up their residence, and a disgrace to the name of Englishman.’¹³⁸ It was not clear what became of Templeton after his expulsion, nor of his marriage after the case.

Secrets had an outsized presence in the Hyderabad abortion case. Templeton accused Hehir of protecting himself by threatening to disclose the secret of Lawrie's affair. In the wake of the case, Templeton himself developed a reputation as a notorious blackmailer who monetized other people's secrets. And at the heart of the case lay the question of the degree to which a physician had to keep his patient's secrets. In the late 1890s, Patrick Hehir explained his actions with reference to this old and central pillar of the physician's code: he did not tell Lawrie about Mrs Whittaker's abortion—at a time when her life could perhaps have been saved—because he felt obliged to keep her secret. Colonial officials were not swayed by this argument. Three decades later, though, Hehir would have the final say. In the late 1920s, as he packed up his life in India to retire in Britain, Hehir added a new chapter to the sixth edition of his then-classic treatise, Medical Jurisprudence for India. Chapter 13, ‘The Law in Relation to Medical Men’, covered a range of legal matters, including the regulation of the profession (by legislation in Britain and in India), the obligation of medical men to exercise reasonable skill and care (the rising field of medical ‘malpraxis’ law), and the need for patients’ consent to be examined medically. The final subsections of his new chapter covered the ‘obligation of professional secrecy’ and the duties of medical men in criminal abortion cases. Here, in veiled terms, was Hehir's final word on the Hyderabad case.¹³⁹

‘In the medical profession,’ wrote Hehir, ‘the ethical law of professional secrecy and honour continues to be much the same today as it was in the fifth century BC in the time of Hippocrates.’ The famous oath included these lines:

whatever house I am called upon to attend, I will aim at making the patients’ good my chief aim, avoiding all injury, corruption and unchastity; and whatever I hear in the course of my practice relating to the affairs of life of my patients that ought to remain secret, nobody shall every know of me. ¹⁴⁰

The patient had come to regard the doctor ‘as a sort of father confessor with whom all professional secrets remain buried’.¹⁴¹ The law required physicians to occasionally divulge their patients’ secrets, but Hehir construed this legal obligation as tightly as possible. A doctor should speak honestly if compelled to in the witness box but, short of those circumstances, he should preserve his patients’ secrets. This was especially true where a woman's honour was at stake. If a physician came to learn that a crime had been committed, he should not volunteer information to the police on the matter: ‘He is not a detective and is not compelled to obey notices sent by the police.’ If a murder had been committed, that was one thing. But ‘that a certain person was recently delivered of a child or a foetus is different; to justify making this known requires very potent reasons for breaking the rule of professional secrecy’.¹⁴² Hehir failed to mention that the Hippocratic oath also included an anti-abortion provision.¹⁴³

In both the 1890s and the 1920s, Hehir relied heavily on the case of Kitson v. Playfair (1896). Although the case was English, it had Indian dimensions: the physician involved was born into a Scottish medical family based in Bengal and had spent the first few years of his career in the Indian Medical Service, including as an assistant surgeon in Oudh during the rebellion of 1857.¹⁴⁴ As noted earlier, Mrs Laura Kitson was living in London with her children while her husband was away in Australia for an extended period. She came to her brother-in-law physician, William Smoult Playfair, for a medical examination. Playfair concluded that Kitson had aborted a fetus that could not have been her husband's. The doctor told his wife, feeling that it was necessary in order to justify cutting off social relations with their sister-in-law. He also told his wife's brother, who was also the brother of Mrs Kitson's husband and who had been supporting Mrs Kitson financially. Mrs Kitson lost her monthly stipend and suffered damage to her reputation. She sued Playfair for libel and slander, and was awarded a colossal sum of £12,000 in damages by a special jury. The case stressed the sanctity of the physician's duty of secrecy. In the words of a British Medical Journal editorial, ‘this memorable and most painful trial strengthens and fortifies the great doctrine which has long made the medical profession one that is everywhere trusted and respected as the keepers and the confessors of family confidence’.¹⁴⁵

Hehir defended his actions in Hyderabad on the basis of Playfair and the larger principle it stood for. Lawrie gave Hehir a positive annual review in part because of Hehir's framing of the issue thus. Defending his own actions in the case, Lawrie explained to the British Resident in Hyderabad that

In the Whittaker case it is an open question whether he did or did not do his duty in not divulging his patient's secret even to a brother medical man whom he had called in without her knowledge or consent. I did not consider that I personally had the right to decide this question against him, seeing that his view was in some measure supported by the finding in the Playfair case, and that it was on this that Dr. Hehir relied …. The awkward position Dr. Hehir felt himself in was that he was in possession of a secret regarding Mrs. Whittaker which in the first place he considered was hers alone, and in the second place he believed that Mrs. Templeton knew nothing of her husband's guilty relations with Mrs. Whittaker. He thought that if this came out, no matter what, Mrs. Templeton would obtain a divorce from her husband and that she and all her large family of children would be absolutely ruined.¹⁴⁶

Colonial authorities in the 1890s, though, thought the two cases were very different. In Playfair, a physician told his relatives about a patient's abortion. In the Templeton case, Hehir failed to tell another physician brought in on the case about a patient's abortion. However, in subsequent decades, Hehir broadened and reframed the matter around patient–doctor confidentiality more generally. His treatise emphasized the importance of a physician's silence where an illicit abortion had occurred.¹⁴⁷

Hehir was jumping into a debate between the medical and legal professions that had been churning in the imperial metropole since the late eighteenth century.¹⁴⁸ From the 1890s until 1915, illicit abortion was the key area in which physicians tried to assert a strong form of privilege over the doctor–patient relationship in England. Privilege meant that a physician could refuse to speak in court about interactions with a patient (the debate shifted to venereal disease in matrimonial cases after the First World War).¹⁴⁹ The medical lobby claimed that not only should physicians not report such cases, but also that they could not be forced to testify about them in court. However, the English courts generally maintained the position established since the Duchess of Kingston's case in 1776: a physician would be required to violate doctor–patient confidentiality if questioned on the stand.¹⁵⁰ Although British Indian law mirrored English law on this point, Hehir overemphasized the strength of physicians’ privilege, downplaying the significance of the fact that a physician had to talk in court.

Hehir and Gribble's treatise had influence upon state actors. By its second edition (1891), it had been adopted by the Madras government as a leading authority on medical jurisprudence. The courts of Punjab recognized the book as an authoritative work on Indian medical jurisprudence. And, in Hyderabad (of all places), the Nizam's government used Hehir and Gribble in state examinations for police officers, pleaders, and others.¹⁵¹ While Hehir's subsequent career seemed to have eclipsed his involvement in the Hyderabad abortion case, he also massaged an elevated justification for his suspicious behaviour into the textbook consulted by ‘police officers, uncovenanted civil servants, sub-magistrates, vakils, assistant surgeons and sub-assistant surgeons’ across South Asia.¹⁵² What could have ended in a conviction for causing death by abortion or liability for ‘malpraxis’ instead evolved into an authoritative chapter urging physicians in India to guard their patients’ secrets, not divulging knowledge of criminal abortions except on the stand.

Conclusions

In 1933, legislator B. V. Jadhav proposed a bill to decriminalize abortion in India. The bill would allow any woman seeking an abortion for ‘physical, social or economic reasons’ to have one. Jadhav wanted to prevent women from dying at the hands of illicit abortionists or through suicide. But his bill failed. One opponent argued that women in 1933 had less need for abortion because contraception was becoming widely available. Others discredited Jadhav's bill (to their minds) by likening it to law in the Union of Soviet Socialist Republics, where legal abortions were readily available. Still others declared that all ‘civilized’ countries criminalized abortion because life began at conception.¹⁵³ If the commission of abortion was rarely prosecuted (as this article suggests), why were women still dying through illicit abortions or suicide? Abortion remained secretive and often dangerous not so much because it was a criminal offence as because of the stigma of illicit sex.¹⁵⁴ Abortions under (allopathic) medical supervision were also unavailable or inaccessible in many parts of India.¹⁵⁵ The continuing risk surrounding abortion until at least 1971, when abortion was legalized, was thus not centrally about law.¹⁵⁶ Women may have enjoyed some greater degree of bodily autonomy because the colonial state looked the other way (at least in ‘live’ cases), but this did not mean that having an abortion was safe or easy.

The global history of reproductive governance includes many examples of restrictive anti-abortion laws being introduced but not enforced.¹⁵⁷ This phenomenon may point to law's symbolic value vis-à-vis particular audiences. In India, the IPC's anti-abortion provisions were probably meant to send certain signals to an imperial public, including anti-abortion constituencies in the metropole. India's 1994 and 2002 legislation prohibiting fetal sex determination may be about signalling and audience, too. Like the colonial abortion law at the heart of this article, these statutes have been largely ineffective in their implementation.¹⁵⁸ There is therefore a long history of lax enforcement of abortion-related legislation in India. During the late-colonial period, this pattern reflected the complex interplay between abortion and the Hindu widow-remarriage movement, a particular construal of medical ethics, and the assumptions and arrangements of colonial rule.