Kandyan Marriage Laws

In Sri Lanka, several legal systems govern the law of family relations. The General law (a combination of Roman Dutch and English law) is the main system applicable to every one except if they are governed by the personal laws. There are three other parallel systems of personal laws in Sri Lanka, i.e., Kandyan Law, The Thesavalamai and the Muslim Law. These laws are grounded in ancient customary practices and/or religion.
(by Jayanthi Liyanage)

When young Bandara Menike Lewke Bandara found a suitor in Kandy and left her parental home in Kurunegala on a blissful "deega" (marriage in which the bride shifts to her bridegroom's house), little she realised what it meant to her inheritance. Soon after, her father died leaving no last will to ensure her share of the paternal property. The process, applying Kandyan law, which followed to divide the estate among his children, deprived Bandara Menike of any right to her "paraveni" (property inherited from her father). Her three brothers and two sisters - one, unmarried and the other, settled in a "binna" (marriage in which the bridegroom shifts to the bride's house) - received equal shares of the "paraveni". Had she been a low country Sinhala or registered her marriage under the general law of the country, she would have received a share equivalent to that of her siblings. Nevertheless, women born to Kandyan families have another disadvantage. If it is proven in courts with carefully-preserved documents that her family is of Kandyan origin, dating back to 1815 when the Kandyan Kingdom fell, Kandyan law supersedes the common law in relation to property and inheritance rights. The Kandyan Law stipulates that a "deega" daughter coming from a family originating from the Kandyan Region (which could encompass Kandy, Kurunegala, Anuradhapura, Ampara and certain areas of Batticaloa District) is not entitled to inherit property from her father. The reasoning is that the family property, which sustains the family from generation to generation, should not be passed onto an outsider. EMACE Sri Lanka, a Colombo-based NGO with field offices in Kandy and Anuradhapura, has tried since it came into being last June, to create this awareness among women, by its "Neethi Sannivedana Sewaya" (legal communications service). "We have a common criminal law for the whole island but property laws are governed by four different legal systems," said Shirani Narayana, Project Manager, from the EMACE lawyer-team. The four systems are the general (or, the common law), Kandyan, Muslim and Thesavalamai laws. The first three are practised respectively among the low country Sinhala, Kandyan Sinhala and people of Islam religion. Thesavalamai pertains to land-owners in Jaffna no matter what race they belong to, and Jaffna Tamils of Malabar origins."Lack of awareness prevents women from acting to overcome discrimination," Ms. Narayana, said. "If they only knew how, they could avoid the overwhelming cost, hassle and time wasted on long-drawn court cases. The general law, a mixture of English and Roman-Dutch law, is the most lenient to women while Kandyan law appears to be more discriminative." The mediation of EMACE has helped quite a few women to solve their property issues without resorting to court action.The instances she cited arise when there is no last will to deal with the deceased's property.

The general law gives a widow one half of her late husband's property whereas the Kandyan Law deprives her of the "paraveni" (inherited from his parents) portion of the property and gives her the life estate of the "acquired" (bought during marriage) portion. If the deceased did not leave acquired property or what existed was inadequate for her sustenance, she could obtain maintenance from "paraveni". "There are no special provisions for a divorced woman in any law," said Ms. Narayana. "It all depends on how well she proves in Courts that she has no other sufficient income. In Canada, a divorcee gets 50% of her husband's property." Kandyan law which deprives a "deega" married daughter of her "paraveni" further states that should she marry after her father's death, she stands bound to give over her "paraveni" portion to her brothers and single or "binna" married sisters, if they demand for it at a fair market value. "In contrast, the "binna" married wife commands great power in marriage," said Senaka Illangantilake, EMACE Legal Adviser at Rambukkana. "The bridegroom is asked to come with a Tal Atta (palm leaf) and a Hulu Atta (torch) as she could at any time throw him out of the house in rain or night." "A Kandyan woman may have a low country husband, but for her father's property, Kandyan laws apply," Ms. Narayana explained. "The form on which a couple apply for marriage, distinguishes it as Kandyan, low country, deega, binna, etc. Often, women sign the form without a murmur. They are not aware of how it will affect their property rights." "One married woman asked me, 'In front of all my wedding guests, how can I ask the Registrar of Marriage under which law I am getting married ?'", Ms. Narayana smiled. But that crucial question could have later saved her much heartache over lost property. E.M. Abeyratne, Executive Director, EMACE, spoke of the tradition where the parental house passes onto the youngest son which reflects a cultural pattern of the days gone by. "The youngest son will be the one who stays the longest period in the house so that the parents can continue to stay there and be looked after by him. Till his marriage and after, he will be there." Today, one sees a son sell his property, go abroad or move to another area while a daughter works and looks after the parents and unemployed siblings. Even if a daughter lives in a distant location, modern communication facilities viz. telephone and e-mail, makes her able to manage her property. "In a situation where social and economical needs are different, what is the logic in depriving a daughter from inheriting property and doing with it what she likes ?", Abeyratne questioned. Another relatively-unknown feature of the Kandyan law allows a divorce, on a few grounds, by application to the Registrar of Marriage. The discrimination lies in that a man can divorce his wife proving her adultery but to divorce him, she has to couple his adultery either with incest or gross cruelty. Women under Thesavalamai Law cannot sell, transfer or gift their property (even when purchased from one's own money during marriage) without the written consent of their husbands. A husband might manage his wife's car and property and finally, leave it to another woman in his last will. "A separated wife may find her estranged husband purposely holding back his consent to prevent her from making use of her property," Ms. Narayana said. "But, many Tamil women do not realise that they can go to courts and get its consent." When a Muslim household-head dies with no last will, women members of the family inherit only a half of what the male members inherit. "They reason this out saying that a woman gets the "mahar" dowry at her marriage from her husband," Ms. Narayana said. The "mahar", which is a nominal token dowry, could be as low as Rs. 3,000. EMACE is now in the midst of a property and inheritance rights survey on a cross-section of Colombo and Kandyan women. Based on the insight the survey could provide, EMACE proposes lobbying the government

for policy changes in local property and inheritance laws while booklets for all local communities are being prepared for greater awareness. "Legal reforms need to be done very carefully, to avoid adverse side-effects," Abeyratne emphasised. "We can impose that every wife should inherit a certain percentage of her husband's property and then people will begin marrying just for property." "The British documented local customs as laws only where the early society depended on them, for example, inheritance of paddy fields. All the rest, they decreed to be under the general law," Abeyratne said. "We are still being governed by archaic ordinances and regulations going back as far as 1806. They should be reformed to develop a social system where a woman can have economical protection of property throughout her life."

Equality in the context of women living under parallel legal systems: The Problem of Sri Lanka
(by Ramani Muttettuwegama)

In Sri Lanka, several legal systems govern the law of family relations. The General law (a combination of Roman Dutch and English law) is the main system applicable to every one except if they are governed by the personal laws. There are three other parallel systems of personal laws in Sri Lanka, i.e., Kandyan Law, The Thesavalamai and the Muslim Law. These laws are grounded in ancient customary practices and/or religion.
The important thing about personal laws is that they only apply to the 'private' sphere of family life. A person's rights flowing from marriage and parenthood as well as the right to own, dispose of and inherit property are covered by the personal laws. It is in this private sphere that many of the discriminations on the basis of gender which remain unacknowledged and invisible take place. This has created the tension in Sri Lanka between the rights of women in general and the rights of minorities. Given the context of a war whose roots belong to ethnic tensions, it is unlikely that we would see in the next few years any amendments to the Personal laws, which would result in positive change for women. This is because the concept of women's right to equality has been continuously subordinated in Sri Lanka to the major debate on minority rights. In the Context of colonialism and thereafter The origin of separate systems of personal laws as codified lies in the interest of the colonialists. Both the Dutch and British set up a system of public law, which was uniform as well as familiar to themselves. However, they were content to leave the various systems of personal laws, which did not impede or impact on the general system, intact as long as there was a system that could be identified and applied by the Courts when necessary. The reluctance to take on the massive task of drawing up a general system of law which would satisfy the traditional ideas of all the communities coupled with the various strategies employed by the colonialists in governing the country seems to have contributed to the decision to leave in place the various systems. The need to pacify minority communities also played a determining role in this decision. However, in the process of codification, the variety of sources that the traditional legal systems relied upon seem to have been ignored, leaving behind a mass of laws which do not form a correct representation of the systems. Given that the sources of information on the "traditions" were almost exclusively upper class/caste males the resulting distortions are obvious. This process has led to many problems and gaps within the personal laws. Although subsequent legislation sought to rectify this, the effect of many of the problems which the gaps originally caused still remain unresolved. For instance, in 1806, the British introduced the 'Code of Mohammedan law', which is an English translation of a Batavian Code, which was mainly a reflection of Shafie laws. Since its introduction, Muslim personal law was interpreted with reference to the Code. However, there are people from other sects who are also Muslims who reside in Sri Lanka. The current law makes references to the "laws that govern each sect" and leaves it to courts to trace its own sources on the applicable norms. The Islamization of Muslim Personal laws in Sri Lanka was as a result of reforms that were initiated during the British period but finalized post independence.

A similar scenario may be traced with respect, for instance, with the development of the Thesavalamai. It is considered to have emerged from a system of laws that were applicable to ancient Tamils, both in Sri Lanka and in India. Thus, originally, it was heavily matriarchal in its basis. This changed over a period of time. The first attempt at codification was by the Dutch in 1707 that resulted in the collection of the laws and customs by Claasz Isaacsz being made into the "Thesavalamai Code". During the British period, the Code was modified upon several instances. Finally, now, the Code is only of persuasive value with the enforceable areas of law being contained in several legislative enactments. The Matrimonial Rights and Inheritance Ordinance (Jaffna) 1911 first amended the system of intestate succession to change the order of some collaterals vs. some ascendants. The rights of married women were amended in 1947 to correct a mistake in the 1911 version of the Act. In terms of the transition from a colonial to post colonial state, the legal rights of women in terms of personal laws did not change much. The members of the legislature followed the policies of the old colonial rulers in not wishing to make drastic changes to personal laws that were not authorized by the members of each community that were governed by these laws. Thus, although both the Constitution of 1972 and 1978 recognize the right to equality and the 1978 Constitution goes even further and recognizes the right to non discrimination, the discriminatory impact of each personal law on women within each community has never been addressed. Upto date no challenge has been raised in the Court with respect to the tension between the right to equality and the right to freedom of culture and religion. Contents of personal laws Summary The personal laws not only set up parallel legal standards, applicable to women depending on the community they (or their husband) belongs to, they also set up parallel adjudicating mechanisms. For instance, General, Kandyan and Muslim marriages are registered by three different types of registrars. Further, disputes relating marriage are also resolved by different authorities. In terms of Muslim personal law, almost every aspect of it is first adjudicated by the Quazi and it is only an appeal that lies to the common Court of Appeal. In terms of the Kandyan law, marriages are registered and dissolved by special registrars. Under the general law, registration is by specially appointed registrars and the dissolution is adjudicated by the District Court. For Kandyan, Thesavalamai and General law intestate succession is adjudicated by the District Courts. The Thesavalamai is not applicable to the area of marriage registration etc. and persons governed by the Thesavalamai for interstate succession are governed by the general law for all aspects of marriage except the control of property by women. I have outlined, some areas that may be of interest and not generally known or understood about the personal laws and their impact in Sri Lanka. Kandyan The Kandyan law cites as its source the laws and customs of the Kandyan Kingdom (the last area of Sri Lanka to be colonised) and is applicable to all Kandyan Sinhalese. A "Kandyan Sinhalese" is one whose parents can trace their lineage to being residents of the Kandyan Provinces during the Kandyan Kingdom and include those who currently do not reside in "Kandyan areas". Thus not all people domiciled within the Kandyan provinces fall within the definition of a "Kandyan Sinhalese". The areas of Kandyan law that are currently retained in Sri Lanka relate to marriage and divorce and intestate succession. All Kandyans have the option of choosing whether they marry under the Marriage and Divorce (Kandyan) Act [M &D (K)A] and, thus be governed by the Kandyan laws or the General Marriages Ordinance in which case, they would be governed by the Roman Dutch law. In the case of intestate succession, a Kandyan person is governed by the Kandyan Law by virtue of the Kandyan Law Ordinance (KL) as well as the Matrimonial Rights and Inheritance Ordinance. Some areas of the Kandyan laws on adoption are also applicable here. In all other areas such as maintenance and custody the general law applies. Thesavalamai The Thesavalamai is part of some ancient customs of Tamils in Sri Lanka and India. In Sri Lanka the law is applicable to the " Malabar inhabitants of the Jaffna Peninsular" and the persons governed by the law include those who do not reside in Jaffna any longer. The only areas of the Thesavalamai personal laws that are now applicable are matrimonial rights with respect to property and intestate succession. These are governed by the Matrimonial Rights and Inheritance (Jaffna) Ordinance [MR &I (J)O]. In all other areas, the general law applies. Muslim The Muslim special laws are applicable to people who follow Islam. In all areas of family the Muslim law applies and, unlike with Kandyans, in the event of marriages between Muslims, they do not have the option of marrying under the General law at all. Marriage, divorce and all other related areas are governed by the Marriage and Divorce (Muslim) Act [M&D(M)A] No. 13 of 1951 and the subsequent amendments. The act states that the law is applicable to marriages and divorces and other matters connected herewith, of Muslim inhabitants of Sri Lanka. This Act covers a range of areas and clarifies the situation of women belonging to the Shafi sect. The Act also goes on to state that the status and rights and obligations of the parties shall be determined according to the Muslim law governing the sect to

which the parties belong and that non/registration of marriage alone will not in/validate a marriage or divorce which would otherwise have been valid/invalid according to the law of the sect. The areas of intestate succession and donations are dealt with by the Muslim Intestate Succession Ordinance No.10 of 1931 (MISO) that is applicable to the intestacy of and donations made by Muslims either domiciled or owning immovable property in Sri Lanka. The Act merely states that the law applicable will be that of the relevant sect and it is necessary to examine the Muslim law itself in order to ascertain its contents. It is important to note that both Acts make provisions for the laws governing each sect that the person in question belongs to prevail, notwithstanding anything to contrary in the Act itself. General Law The term "General" is misleading because it is more a catchall law. Every area of family laws is covered by some aspect of general law. The area of marriage including the age of marriage, the procedure for a marriage, the registration of marriage and its dissolution either by divorce or through a judicial separation is governed by the Civil Procedure Code (CPC) and the General Marriage Ordinance (GMO). The GMO is applicable to all marriages except those between Muslims. It also contains express provisions regarding the recognition of traditional forms of marriage as being valid. The law on the matrimonial rights of married persons with regard to property and intestate succession is contained in the Matrimonial Rights and Inheritance Ordinance (MR & IO) read together with the Married Women's Property Act (MWPA). These acts are not applicable to Kandyans, Muslims or people governed by the Thesavalamai. The law on adoption is contained in the Adoption Act as amended. On the face of it, the Act is applicable to all communities. In terms of intestate succession, however, its applicability differs according to the community. The general law on maintenance is contained in the Maintenance Ordinance. This Ordinance has been amended recently to shift away from the old concept of indigence and need to a general right of persons to maintenance. However, since the 1951 Marriage and Divorce (Muslim) Act, the Maintenance Ordinance is not applicable to people who marry under it. Further, the Wills Ordinance which lays down the law regarding wills is applicable to any one and there are no prohibitions on the types of bequests that may be made by a will in Sri Lanka. Minimum age of marriage Under the general law and the Kandyan Law, minimum age of marriage is now 18 years for both males and females. However, under the Muslim law, there is no minimum age although the registration of a marriage of a girl under 12 years of age is prohibited unless authorized by the Quazi. Although there are very few recorded instances of children under the age of twelve being married under the Muslim laws, the anomaly could have far reaching impact on the lives of Muslim girls. Under the Penal Code of Sri Lanka, until 1995, the general age of consent for sexual relations was twelve years. In 1995, the Penal Code was amended and the age of statutory rape was raised to 16 years UNLESS the person happens to be the perpetrator's wife and they are not judicially separated (Section 163(e), Penal Code as amended ). Thus, unlike in the period before 1995, when although the age of consent was very low, it was uniformly applicable to every one (although even during this period Muslim girls could be married under the age of consent), now Muslims who are married are specifically not covered by the Code. Rights of married women Under almost all the legal systems, the concept of separation of property forms a strong basis in terms of rights of married women. They own their own property. Dowry that is given by the family is also usually given in the woman's name. Under the Matrimonial Rights and Inheritance (Jaffna) Ordinance however, women married under the Thesavalamai can not dispose of their property without the written consent of their husband except by Will. This is not the case for other women in Sri Lanka. Divorce Under the General law, divorce is based on the concept of "fault" rather than on the irretrievable breakdown of marriage. The grounds, however, are the same for both parties. Under the Kandyan law, while the grounds are the same for both parties in most circumstances, a wife seeking a divorce from her husband on the basis of adultery must also establish an additional ground of incest or gross cruelty. However, a divorce on mutual consent is available under the Kandyan law. Further, unlike the General law, a divorce

is granted by the Registrar of Marriages under the Kandyan law, thereby making dissolution of marriage a much simpler procedure. Under the Muslim law, a man seeking a divorce does not need to specify a ground for divorce whereas women must establish either ill treatment or an act/omission which amounts to a 'fault'. As far as procedure is concerned, however, either procedure is much simpler than the more cumbersome two-part procedure under the General law. Status Women marrying outside their community or race are governed by the personal law of their husbands while men in the same position are still governed by their own personal laws. Under the Married Women's Property Ordinance and also Matrimonial Rights and Inheritance Ordinance, a woman marrying a man of different race takes on his race until she remarries. The rule regarding the status of a Kandyan woman marrying in Binna is not made clear here. A woman marrying under the Thesavalamai is only subject to this rule during the subsistence of the marriage. The result of this is that women who marry outside their community lose their customary rights of inheritance. Any Muslim who does not marry under the Muslim Marriage Act (and possibly their children) loses the right to inheritance under Muslim Intestate Succession Ordinance thereby further restricting the women's choices regarding self and communal identity.