TRANSFORMATION OF CUSTOMARY MARRIAGE AND

INHERITANCE LAWS OF THE SINHALESE UNDER BRITISH

COLONIALISM

Darshini A. de Zoysa
Darshini A. de Zoysa is Research Affiliate at the Centre for Asian Studies Amsterdam
(CASA), University of Amsterdam, The Netherlands.

Introduction
In recent years this journal has published several articles focusing on
evolutionary theory and the anthropology of law. 1 Two salient points
emerge in this literature: First, a conviction that evolutionary theory
is not out of step with objective reality; and second, recognition that
jural rights and obligations are grounded in concrete material practices
rather than in abstract legal enactments. The latter observation also
entails recognizing that rather than studying ancient customs and habits
in a vacuum, it is first and foremost necessary to identify those
relations that are incipient to concrete capitalist societies. This way,
the development of capitalism and corresponding legal institutions are
studied prior to their historical genesis.
Although he does not pursue such a line of inquiry, KojoYelpaala,
in his article "Western Anthropological Concepts in Stateless Societies:
A Retrospective and Introspective Look at the Dagaaba," also points
out, in conclusion, that the position of women under customary and
colonial laws needs to be meaningfully addressed in future research. 2
Accordingly, the central objective of this paper is to demonstrate how
current marriage and inheritance practices among the Sinhalese
majority in Sri Lanka are rooted in both customary law and colonial
policy in the Island. First, I maintain that, unlike the case of customary
law, British legal enactments originated in values and concepts which
had no social relevance. Consequently, there has been a tradition of
covert resistance to colonial policy, so that customary marriage and
land laws continue to be practiced even though they have been
Dialectical Anthropology 20: 111-132, 1995.
9 1995 Kluwer Academic Publishers. Printed in the Netherlands.

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criminalized by the state. Second, I argue that, in so far as marriage

and land policies have been ubiquitously linked during four hundred
and forty-three years of Portuguese, Dutch and British rule, colonial
policy came to shape material conditions in the Island. Finally, I point
out that although the overall effects of such enactments were
contradictory, taken together, they tended to operate against women as
a group. The British, in particular, wrongly felt that customary laws
which recognized bilateral inheritance, cohabitation, divorce based on
the unilateral decision of one party, polygyny and polyandry were
immoral and, by contributing to land fragmentation, collided with
freehold. With the development of a land market, male colonial
officers thus felt that enduring monogamy founded on patrilineal
descent and inheritance, whereby land and authority were concentrated
in a single male patriarch, was required.

Marriage and Inheritance in the Anurfidhapura and Polonnaruwa

Periods (500BC-1300AD)
According to scholars of ancient marriage and inheritance laws, 3 the
most crucial feature of Sinhalese kinship was that it was entwined with
land ownership and inheritance. Archive material on Sri Lanka reveals
fascinating vestiges of a by-gone bilateral era when both genders
inherited equally. This practice was prevalent not only among the
Sinhalese but among the aborigines (vdddo), Muslims and Tamils as
well.
Historians have also argued that in South Asia today it is only
among the Sri Lankans and the Malabars (viz K~rala and Lakshadweep
islands) of India that matrilineal clans straddle patrilineal clans, and
they have attributed this fact to periodic intercourse between the two
regions over time. Although there is no concrete evidence in support
of this claim, some even go so far as to argue that bilateral inheritance
may have been predated by matriliny: Thus Heinz Bechert argues that
K~rala's matrilineal tradition may have actually originated with Sri
Lanka's aborigines (Nfigayo) who were among the earliest inhabitants
of the state, 4 and who inter-married with Tamils from the Mukkuva
caste. Prior to the eleventh century, these Tamils in turn migrated to

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Sri Lanka, bringing along their modified customs which were now
essentially matrilineal. In the meantime, those aborigines who
remained on the Island inter-married with the Sinhalese, who were
patrilineal, so that in due course customary law among the latter (Niti
Niganduwa) also came to reflect both forms of descent. As a
consequence, although subsequent migrations to the Island in the
thirteenth and fourteenth centuries by high caste peasants (Goigama or
VelNla) introduced patrilineal family organization, the resulting
customary rules (Th~savalami), which were codified by the Dutch in
1707, point to an amalgam of both forms of descent.
At a theoretical level, the general contours of these all-encompassing
developments are analyzed in Engels' seminal essay, Origin of the
Family, Private Property and the State. Using Morgan's ethnographic
insights, he argues that the present-day monogamous family emerged
as the historically dominant form only with the genesis of capitalism,
and that the patriarchal family followed a matrilineal era when descent
was according to female line. Extrapolating to the Sri Lankan case, the
argument runs that although there is no proof of a matrilineal past
(since only bilateral inheritance systems are known to have prevailed),
the early hunters and gatherers could well have practiced group
marriage whereby only parents and children were excluded from the
conjugal union. No doubt, given the absence of the written word
during this era, this particular phenomenon remains a matter of
conjecture. Yet it is fairly certain that, with the domestication of
animals and the development of agriculture, copulation between
siblings was prohibited, and that during early civilization the incest
taboo was further extended to include parallel cousins. As a
consequence, it was only shortly before the advent of colonialism that
unions between all kin became taboo.
Now, according to Engels, in its original form both endogamy and
exogamy were not mutually exclusive entities. When group marriage
prevailed, the tribe was sub-divided into different groups which were
related to the mother's family or gens. Hence, while each gens was
exogamous, the tribe actually embracing all gentes was endogamous.
With time, however, exogamy referred to marriage by capture, which
was prompted by the widening of the incest taboo to include more
members of the tribe, and the consequent dearth of marriageable

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partners from within it. Even today, verses of prohibitions by the

bride's family, and counter-verses by the bridegroom's family
(whereby each prohibition is canceled), seem to symbolize struggles
dating back to ancient times when a man captured his wife. 5
Interestingly, kinship classifications do hint of exogamy whereby the
aborigines and Sinhalese from ancient (purina) villages are divided
according to different sub-castes (~riga) which reflect the gradual
transition from marriage within the gens. 6 To expand further, the
obligation to marry outside the gens and, correspondingly, within the
same caste or tribe is epitomized by cross-cousin marriage which
characterizes exogamy. Here children of a brother and sister are
considered to be of a different gens and are hence marriageable. By
contrast, children of two brothers, or two sisters, are considered to
share a similar gens, so that union between parallel cousins was
deemed incestuous. Indeed, even today in Sri Lanka, cross-cousins
(massina, n~a) have different family or "house" (g~) names, and
therefore can marry, but parallel cousins are classified as brothers and
sisters (sah6dara, sah6dari), and are therefore unmarriageable.
Strictly speaking, not all coupling among parallel cousins can be
labelled incestuous. Only the children of two sisters who married
endogenously belonged to the same family, and hence were subject to
the incest taboo (which, if broken, was punishable by death). The
children of two sisters who married exogenously should have been able
to mate without being stigmatized, as they had different family or
house names. In light of this critical distinction, the fact that in ancient
times marriage among all parallel cousins was prohibited indicates that
once upon a time there were no exogenous unions to speak of, and
residence, inheritance and descent were according to the maternal line.
However, with the evolution of tank irrigation, cross-cousin
marriage was no longer universal. Such unions were principally
entered into with a view to avoiding land fragmentation, since with
increasing land scarcity sub-division of privately-owned property could
be avoided if a father married off his offspring to their cross cousins.7
With the development of freehold, the frequency of such unions has
declined even further. It is striking that, unlike the West, where
sexual liaisons between all first cousins are frowned upon, in Sri Lanka
today, it is only liaisons between parallel cousins that are considered

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abnormal. It appears that these practices have not been entirely wiped
out, as is symbolically reflected by the continued custom whereby the
maternal uncle assists his niece or nephew onto the bridal dais, thereby
giving his tacit consent to their union with persons besides his own
offspring.
Having touched on the implications of cross cousin marriage for
women, it is fitting to consider the original meaning of the term
"marriage." In ancient times marriage referred to an "alliance" or free
union (sambanda), whereby formal registration was absent and
partners simply cohabited. Chastity among women was not expected,
and jealousy among men was virtually unknown. If a couple moved
together onto swidden land (china), or if a woman was seen serving
food to a man or even combing her hair in his presence, they were
considered to be betrothed. However, with the development of private
property, the upper classes who had accumulated surplus started to
perform a secular marriage ritual (pSruva ceremony) to cement their
property rights, prompting F. A. Hayley to remark that although
wedding ceremonies were costly, "the most elaborate ceremony
guaranteed no more permanence to the union, than mere
cohabitation. ,8
In the absence of formal proceedings, divorce and remarriage were
also common. Divorce could be based on the unilateral decision of one
party, so that mutual consent was not required. According to Robert
Knox, however, the care of children continued to be shared by
divorced parents:
9 . . if they disagree, and mislike one the other; they part without
disgrace . . . . Both Women and Men do commonly wed four or five
times before they can settle themselves to their contentation. And if
they have Children when they part, the Common Law is, the Males
for the Man, and the Females for the Woman. 9

Due to the increasing prohibitions on alliances between kin,

following in the heels of group marriage a certain amount of pairing
took place, giving rise to a system of "associated marriage" between
brothers and sisters from a different family, and latterly, polygyny and
polyandry which existed more or less side by side. Polygyny or plural
wives was possibly the outcome of warfare and slavery, and, according

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to the chronicles, spanned from the reign of King D~v~nampiya Tissa

when Buddhism was introduced into the country. Such unions were,
however, relatively rare, not only because of the island's bilateral past,
but also because more than one queen was required to preserve the
lineage and ensure a large pool of labor. 10
By contrast, polyandry or plural husbands (which is associated with
matriliny as the father's identity is uncertain) was historically more
widespread than its counterpart, and along with group marriage
(whereby several brothers and sisters married jointly), raised many an
eyebrow of the colonial officers who, impregnated with victorian
morals, found it either "excited laughter" or was "odious and
revolting." Polyandry was easily adapted to irrigation agriculture,
although with the gradual evolution towards tracing descent among
males, polyandry, whereby only caste consideration came into play,
gave way to fraternal polyandry, whereby several brothers (who may
also be step-brothers, parallel cousins or cross cousins) would marry
one woman. Hence, whereas in its original form sexual intimacy and
consideration of labor power were the main reasons for polyandrous
unions, in fraternal polyandry land also entered the equation. This is
because although paternity remained unknown, the family origin
remained obvious, since all possible fathers were from the same gens,
and inheritance followed male lines.
Fraternal polyandry was practiced in the face of services to the king
(corv~e), as those brothers who remained on the farm would
temporarily take over all agricultural tasks. Tenants of royal villages,
temple villages, had to work in the manor house at times of marriage
and death, and to repair buildings belonging to temples to the neglect
of theft own farm. Thus, feudal service may have actually contributed
to the development of polyandry as a solution to domestic problems.
Among rich peasants who had a small (male) labor:land ratio, the
practice enabled otherwise uncultivated land to come under the plough,
concentrated land, united families and influence, and ensured children
would be better off economically as they had several fathers. However,
with growing land fragmentation, it came to typify the peasantry as a
whole, and with time marginal peasants in particular. Thus, a British
Registrar of Kandyan Marriage and Divorce remarked that in the
Kandyan District he

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9 . . found that the custom of polyandry was almost universal; 11 and

that in the case of marriages registered under the (Kandyan Marriage
Registration) Ordinance the name of the elder brother was given as
that of the bridegroom, but everyone was aware that the girl would
regard the other brothers as being equally husbands. 12

In the case of fraternal polyandry, only the relationship among the

husbands was hierarchical, as it was buttressed by age and class
difference. Besides those rare instances when the younger brother
brought the wife home first, he had to respect the authority of the older
brother. In the case of step-brothers and parallel cousins, the junior
husband was also invariably poor, and was evidently incorporated into
the union for his labor power. He received orders and pocket money
from the senior, but was nonetheless considered to be more sexually
potent, so that as he grew older the senior partner may have even been
pushed out of the bedroom. 13
Significantly, a man who entered a polyandrous union sometimes
had another woman as a wife for himself only. The woman within a
polygamous household, however, did not enjoy such freedom, so that
in the case of fraternal polyandry she could not refuse any of the
brothers9 Moreover, although all offspring under polyandry were
regarded as equally legitimate, children were heirs to all the husbands,
not the wife.14 Evidently, fraternal polyandry was arranged with a
view to consolidate land within the husbands' family, and a woman
could not keep a second husband without the prior consent of her first
husband or parents (father?). 15 As such, unions were also entered into
to ensure that one husband could focus on shifting or swidden
cultivation, while others concentrated on permanent paddy cultivation,
it also further strengthened traditional gender divisions in agriculture.
More seriously, unless polyandry is accompanied with polygyny in
equal measure within the same region, it has no theoretical
significance. The existence of polyandry alone can be deduced through
simple arithmetic; namely, high female mortality relative to males9 16
Actually, with the exception of a few instances of polyandry, neither
polygyny nor polyandry are practiced any longer in Sri Lanka. Writing
in 1978, Stanley J. Tambiah pointed out that in remote villages in
M~talE district there were a handful of such cases, 17 and, more
recently, Ratnapala 18 has conducted a study on, and by, women of

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polyandrous unions. Yet in the absence of marriage rituals Tambiah (in

my view correctly) defines polyandry as an agreement between
husbands on the basis of economic advantages such as a common pool,
common residence, cooperation and land consolidation; and it is on
this basis that polyandry is deemed to have virtually disappeared. He
therefore claims that it is still common for a brother to sleep with his
sister-in-law, or for a woman to sleep with an outsider, without the
relationship being actually labelled polyandrous.
In fact, today, matrilocal marriage continues to be the norm in the
Kandyan highlands. To elaborate, in Sinhalese the nuptial bond (~v'~haviv~ha) refers to the "taking over of a person and his/her separation
from the natal family." Thus, in endogamous or matrilocal marriage
(binna) "taking over" (~vSha) is by the woman, while "separation from
the family" (viv~ha) pertains to the man. A woman took a husband to
live in her parental home, and retained a share of her family's
inheritance which was usually in the form of land. 19 The children also
took on the mother's family or house (g~) name. They were, hence,
under the guardianship of their maternal relations, and, as such, even
children of a free woman who married a slave were also free. 2~
However, with the development of freehold, matrilocal marriage has
gradually given way to patrilocal marriage (diga), which is
predominant in the Maritime Province but is increasingly becoming
common elsewhere. In such unions inheritance and descent are
patrilineal, and in contrast to its mirror-image (binna), a woman is
given in marriage, usually with a dowry consisting of movable assets
(including "non-material" assets such as caste and family honor) to live
on her husband's relatives' land. Formerly, this dowry also included
cultivation land, but it came to be a form of "patterned migration"
whereby, in case of land scarcity, women were eliminated from
receiving their share of land. Either way, the dowry was a sort ofpremortem inheritance~ so that unlike her sister who married binna,
neither the diga married woman nor her children (who now belonged
to her husband's kin) were entitled to further property from her
parents.
Crucially, according to Hayley, "the equality of division amongst
children is one of the cardinal principles of the Sinhalese rules of
inheritance.'21 Apart for the loss in emotional security when leaving

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the family nest, the woman who married diga enjoyed no less financial
security than her sisters who married binna. Although the dowry is
currently given to the prospective son-in-law in consideration of
marriage, thereby commoditizing the union, at the time it was given to
the woman absolutely, so that according to local idiom, the bride left
her parental home with her head held high (hisa ussagena).22 Thus,
except in the case of treason (whereby the monarch probably acted
arbitrarily), a woman's property could not be seized to cover her
partner's debts. Her husband was also liable to support her throughout
the union, and if the marriage was dissolved by him she was entitled
to alimony and child support in addition to her dowry and any property
acquired by her after marriage. She could also reclaim her initial loss
of access to her parents' land, and if she so chose, remarry
matrilocaUy.
Now, we cannot underestimate the power of a binna married woman
who lives and works within her own kin networks, owns land in her
name and, knowing her children will be well looked after, can
terminate her marriage without any social stigma. Nor, for that matter,
can we easily dispel the sense of security felt by a woman who enters
a polyandric union, even though I doubt whether in the absence of
jealousy, a polygamous wife felt a need to vie for special attention
from her partner. Yet the situation in the past was extremely complex,
and in this regard several cautionary points are warranted.
First, it is incorrect to infer matrilineal inheritance from matrilocal
residence, and to the extent that matrilocal and patrilocal residence coexisted, we have concrete evidence of only bilateral inheritance
(which, in my view, is more egalitarian than either matriliny or
patriliny). Moreover, there is little evidence that matrilocal residence
was more common than patrilocal residence at any point in Sri Lanka's
history. Indeed, some authors believe that not only was patrilocal
residence the norm, but that matrilocal residence appeared to have
originated only around the sixteenth century. 23 Legends such as the
prominent place occupied by the aboriginal (Yakkini) queen Kuv~ni
cannot in themselves be considered to be historical evidence of
matrilinearity.
Second, after the development of private property, the high status of
a woman who married matrilocally could not be easily attributed to the

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type of marriage per se. Instead, it may have been due to her superior
socio-economic position vis-gz-vis her husband. Upper class women
were, however, a minority: Hayley states that such women were
usually heiresses, and for my part, I found that a woman who marries
binna is invariably from a rich household. This point is brought home
by NurYalman who states,
"rich and poor families do not act in the same way . . . . The rich,
however, actually controlled the property rights of the daughter and
used this as a tool in the arrangement of marriage. In contrast,
labourers did not control the propertY rights of daughters, and all
siblings shared alike."24

Despite this, in its original form the extent to which matrilocal

marriage operated to the detriment of men is questionable. No doubt,
a woman within a matrilocal union was, as one colonial officer
commented, "in a stronger position than her English sisters.'25 Yet,
as authority was diffused rather than concentrated, the relationship
between the sexes may have been more egalitarian than might be
expected at a glance. Thus, although the children shared the same
family or "house" name (gE) of their mother, their surname
(v~sagama), which refers to the village of origin and bears no kinship
significance, was that of their father. In short, the severity of such
unions for men can only be assumed by a priori imputing
individualism and competition which underpin monogamous relations
under patriarchy, onto a by-gone era. Thus, even the binna husband
enjoyed rights in his wife's family's household, and it is only in
modern times that he is considered to have "lowered himself" into the
marriage (binna bdssa).
In this respect, I feel that both male colonial administrators and
feminist researchers may have wrongly imputed female dominance
(matriarchy) and female descent (matriliny) from female residence
(matrilocality).26 Under matrilocal residence, paternal responsibility
was minimal, yet a woman's brother had authority over both her and
her offspring. Although both matrilocal and patrilocal marriages were
loosely knit, and in the absence of a conception of adultery the
phenomenon of "bastard child" was not recognized, except in instances
when the incest taboo (viz prohibition of sex between parallel cousins)

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was upheld. Such children were not eligible for any inheritance
whatsoever, while children from mixed-caste unions were considered
to be only semi-legitimate, and, hence, qualified for only a portion of
property, the exact amount being determined according to the merit of
each case. 27
Indeed, writing between 1640-1660, Knox revealed how
"promiscuous" sexual relations were nonetheless accompanied by the
cutting of ears and hair of prostitutes .28 He also pointed to the ominous
"law" whereby an unfaithful wife and her lover may be rightfully
killed by her husband. Likewise, whereas due to the growing influence
of patriliny mating with an upper caste man was not considered a
serious offence, if a woman mated below her caste, her kin had the
right to kill her or to have her confined to a royal village while they
delivered provisions to the king's granary to regain lost honor. The
Judicial Revenue and Commissioner's Diary of 1817 also reports a
case of a woman who was raped by a low caste man and upon refusing
to hang herself, was stabbed by her uncle. 29 Writing over two
centuries later, R. W. Ievers also points out that whereas sexual
relations between a high-caste man and low-caste woman were
"winked at" so long as neither ate together (which is a symbol of
marriage), the opposite was punishable by killing the couple. Thus, a
villager is quoted as saying, "In the Kandyan times we would have
killed her at once, but no--hump!--well! I don't know what we would
do with her now either. ''3~ In this context, Ievers also refers to a
"curious custom of boycott" by high and low sub-caste members who
would debar the woman's family from social intercourse, so that even
the lowest washer caste will not tend to their clothes until the
interdiction is removed by the village court.
Finally, even the ostensibly "straightforward" division of labor
which characterized ancient society was extremely rigid, and entailed
considerable differences in rank and status. Hunting (including drying
and smoking of venison) was done by men, and every male child
possessed "toy" bows and arrows. By contrast, women would dig for
yams, cook and plait mats, while little girls played with broken
cooking pots. Moreover, so-called "communal" property was hardly
jointly owned. Such land (including jungle) was divided into clear
boundaries, and trespassers were killed without provoking fear of

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reprisals. Hunting grounds belonged to males only, and if game

wounded in one man's land entered another's territory, the latter had
to be given a portion of the meat. 31 So, although in respect of
inheritance of hunting land, caves, hills and pools, sons-in-law were
preferred to sons (thereby pointing to descent through females), these
immovables were never given directly to the daughter.
To sum up, due to migration to and from different regions in India,
group marriage, polygyny, polyandry, monogamy, patrilocal and
matrilocal residence existed in unique combination in Sri Lanka. The
principle of seniority of succession to the throne also reflected a
mixture of both matrilocal and patrilocal residence. However, the
virtual absence of sovereign queens, the fact that, prior to the advent
of fraternal polyandry, both plural husbands and adultery by royal
women were prohibited, and the fact that rape was not considered
serious unless committed on a woman of high rank, reveal that
throughout history the position of women was always precarious. 32
Crucially, unlike India, there have never been any dowry murders
or widow immolations in Sri Lanka. Moreover, in Buddhism castism
is rejected, and in this context the fact that in the Buddha's family we
witness cross-cousin marriage which is connected with matriliny is
pertinent. Because Buddhism was also generally egalitarian in respect
of gender, and the nun's order flourished in the Anuradhapura period,
women could enjoy a culturally approved life odtside marriage. And
yet, even prior to the advent of colonialism, their overall status
declined, so that for instance, the destruction of Buddhism following
the ch6la invasions did not result in the reinstatement of the nun's
order. Poignantly also, the fact that, with growing economic
differentiation, surplus accrued to men only indicates that long before
the island was colonized by Western powers men were already in a
position of privilege.

Marriage and Inheritance in the Colonial Period (1505-1948)

Under early Portuguese and Dutch colonialism, indigenous marriage
customs were not significantly tampered with. Portuguese men freely
cohabited with Sinhalese women, and although, under the Dutch, such

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freedoms were curtailed, it was only Christian converts and members

of leading Sinhalese families who wished to enter the colonial service
who formed monogamous unions. However, under the latter-day
British Colonial Office, we witness a massive overhaul of customary
law.
To expand further, of the one hundred and forty-six years spanning
British colonialism (1802-1948), the initial two decades were dedicated
to ensuring military control over the Island. But once politically
secure, the British introduced far-reaching reforms that were both
meteoric and irreversible. They introduced cash crops such as rubber,
coconut, coffee and, later, highly capital-intensive tea plantations, and
embarked on road, rail and canal construction throughout the country.
A new form of land which was purchased for cash soon emerged
(mudal dun pangu), along with the replacement of tax in kind by
money taxes. Yet it was only after the notorious Crown Lands
Encroachment Ordinance (1840) and Waste Lands Ordinance (1897)
that the spirit of laissez-faire received formal legal backing. As with
the Enclosure Movement in Britain, with a stroke of the pen all
swidden, forest, waste, unoccupied and uncultivated land reverted to
the colonial state, with the burden of proof of "ownership" resting
with the cultivator, who could rarely furnish written deeds and titles.
Bluntly stated, the British were fed up with indigenous tenurial and
inheritance practices which were extremely complex, fluid, not well
understood, and above all, collided with freehold. There were several
reasons why ancient tenure hindered the British. First, according to
customary law, land was never gifted or sold outright. Land transfers
were simply veiled mortgages, and were revokable during the lifetime
of the original "owner." Second, there were services attached to the
land which were compulsory upon transfer. Third, in the face of
bilateral inheritance, land was often held jointly by kin with a view to
pre-empt fragmentation. All these so-called "primitive" practices
discouraged traffic in land whereby, as Michael Roberts remarks,
rights had to be "cut and dried and classified.-33
Further, the British firmly believed that traditional marriage and
inheritance practices were too lax--hence, immoral, complicated and
a hindrance to progress. With the development of a land market, a
system of enduring monogamy founded on patrilineal descent and

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inheritance was needed, whereby both land and decision-making

authority were compressed within the nuclear family headed by a
single individual. It was felt that a system of marriage founded on
monogamy and primogeniture would not only "cease to disgrace a
possession of the British Crown," but also speed up the development
of freehold, which the British were anxious to propagate. 34
Yet, at the onset, the Sinhalese appear to have ignored British efforts
to "purify" the institution of marriage, while, for the most part, the
British also felt that outright abolition of customary marriage law
would be "impolite." But as they back-pedalled, feudal lords who were
beginning to invest in "native coffee" found that, in providing
subsistence rights for all kin equally, customary law discouraged
economic mobility for which secure titles were a prerequisite.
Thus, in 1855, these lords forwarded a petition to the governor
calling for the abolition of polyandry and polygyny which, they
argued, was "exceedingly unsuited" to their social standing. They also
pointed to the fact that
9 . . the great barrier which now exists for a deceased person's
rightful heirs succeeding to his Estate can be traced to the lax state of
the law of marriage . . . . (I)n numerous instances parents are reduced
to poverty solely in consequence of their married daughter, and her
issue, being thrown upon them for support and maintenance . . . . 35

For reasons that are not very clear, the British were slow to act on
the petition, which was promptly followed by a second one signed by
8,000 "Kandyan Chiefs, Headmen and People." But like the Kandyan
Treaty before it, this petition seemed to emanate from the former
feudal lords--albeit now turned capitalist. To quote Roberts in full,
The abolition of polyandry, polygamy (viz polygyny) and pre-marital
cohabitation was regarded by the British as a worthy social
reform--but it was also regarded as a move to end the complications
in the law of inheritance which such customs entailed. Strange to say,
some of the Kandyan chiefs and headmen regarded the measure in the
latter light. The Ordinance (No. 13 of 1859) was originated at their
request and therefore was not a measure imposed from above but
coming, so to speak, from the middle9 These chiefs were motivated
by a desire to secure property rights and to end the cause of much
litigation. However much modern sociologists may doubt the

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connection between laws of inheritance and fragmentation of land, the
Kandyan chiefs and the British administrators were convinced that the
Kandyan marriage practices increased land disputes. Believing so,
they were so guided. ,36

The British were determined to strike while the iron was hot, and
promptly implemented the Kandyan Marriage Registration Ordinance
of 1859.
Following on the heels of previous legislation which made bigamy
illegal, this ordinance abolished polygyny, polyandry and divorce by
consent of either party. Moreover, on the grounds that lawful marriage
could not be deduced from cohabitation, connubium was by implication
prohibited. The requirement to formally register marriage also meant
that although, in respect of previous cases, long cohabitation or repute
were in theory considered sufficient proof of marriage, in practice, the
marriage register came to constitute the "best" proof of marriage.
Furthermore, divorce on the wishes of either party was abolished,
wherein it was permitted for the husband only in case of "adultery" by
his wife, and for the wife only if "adultery" was coupled with incest,
gross cruelty or desertion.
Significantly, the above ordinance was not an isolated affair, but
came in the wake of a spate of similar enactments which slowly but
surely turned women into legal minors and eroded their independent
access to land. Two decades later the sale or mortgage of land became
a legal, not a family, concern (Ordinance No. 7 of 1870), and in the
same year, the marriageable age for women and men was set at twelve
and sixteen years respectively, with any union by a minor requiring the
consent oi~ his or her father (Ordinance No. 3 of 1870). Proof of
children's legitimacy was also demanded (Ordinance No. 14 of 1895),
and to this end the date of marriage was required, as "bastards" were
not eligible to inherit. 37 Moreover, whereas under Kandyan law a
guardian (be it a biological parent, a relative or, in the case of chiefs,
the king) was mainly concerned with the care of the child, and only
secondarily with the child's property and rights of succession, the
situation was reversed under the Civil Procedure Code. The conception
of the written will as a disposition to take place after death (rather than
being stated verbatim on the death-bed) also emerged.

126

Clearly, then, marriage and land policies were ubiquitously linked.

However, theoretically at least, land could have been concentrated in
the hands of men and women (or the first born) instead. The gradual
displacement of women's independent access to land was not intrinsic
to capitalism proper, but reflected early merchant capital which was
embedded in traditionally chauvinist structures. To quote Carla
Risseeuw,
The British remained totally unaware of the implications for the
position of women in their families. They needed one, continuous
owner of land per "family," but in theory the sex of the future owners
could make no difference. That this owner would be the male sex was
too obvious, and could therefore remain unsaid. 38

Indeed, as marriage forms in industrialized countries reveal, neither

formal registration of unions nor their restriction to heterosexuals are
a prerequisite for accumulation or the transfer of property. Yet, due to
the contradictory nature of early merchant capital, the authority of
conservative, like-minded male chiefs held sway, and their interests
were buttressed by a colonial service which was only open to men. As
gender relations prior to Western conquest were already asymmetrical,
it is precisely the power of those men who already enjoyed a
disproportionate share of the surplus which was thus bolstered. In
other words, the ideology of female dependence no doubt emanated
from without, but it did not flourish in a vacuum.
Once under way, however, the break with the past was for the most
part irreversible. Early colonial officers' perception of the ideal-type
of family were reinforced by welfare policies of latter-day colonists,
who advocated single sex schools with a view to socialize children into
monogamous unions which mimicked the British example. As
missionaries vied for Christian wives, girls were sent to boarding
schools in increasing numbers, enticed with promises of gifts of
dresses at each step of progress--and to crown it all, a dowry upon
marriage. The education of a girl was thus seen to be more valuable
than that of five boys, as girls could "be settled among the idolaters to
exhibit a pleasing contrast with heathen families, showing the
loveliness of domestic virtue in the midst of abounding vice. ,,39 It was
women such as these who, once married to Congress leaders,

127

established the Women's Franchise Union in 1927 to lobby for

women's suffrage--with the proviso (which was fortunately never
implemented) that only the educated and propertied could vote.
British marriage policy thus also had a formidable impact on women
during the post-Independence era. Due to free education, the period of
adolescence was lengthened and the age of marriage postponed; hence,
in 1981, the latter stood at 24.4 years for women and 27.9 years for
men. But since females continue to be regarded as sexually mature at
the age of twelve, the consent of a girl above this age is today a priori
assumed in case of rape. Further, with growing emphasis on
monogamous unions, previously relaxed attitudes towards female
chastity have given way to dubious virginity tests, resulting in sexual
abuse of girls going unreported due to parents' determination to protect
family honor. When legal action is taken, however, the usually male
judge does not regard rape as a serious offence, but simply
compensates the woman for her loss of virginity.4~
Moreover, whereas Roman-Dutch law recognized that "a mother
makes no bastard" and compelled the biological father to maintain
illegitimate offspring, his responsibilities towards the child were
minimized under the British. As a consequence, (illegal) abortion,
child abandonment and baby trafficking were encouraged. Crucially
also, the new laws gave rise to an anomalous situation whereby the
man was seen as the apex of the legal family which was essentially
patrilineal, whereas the woman was seen to head the illegal family
whereby descent followed the maternal line.
However, due to the contradictory character of British merchant
capital, in time, policies promoting gender equity were implemented
in the colony. The husband's right to murder his adulterous wife, and
a family's right to kill a woman who had sexual intercourse with a
low-caste man were duly prohibited. Roman-Dutch law, which merged
a woman's property with that of her husband and which gave the
husband marital power over his wife's property, was reversed, thereby
giving women independent property rights. Further, being juxtaposed
on a society which was essentially bilateral, welfare policies of the
British and successive post-Independence governments have also
greatly benefitted women as a whole. Hence, in 1981, quality of life
indices pertaining to women were not only on a par with those of

128

industrialized countries, but, with the exception of literacy (which

stood at 91% for men and 83 % for women), outstripped those of men.
Thus, in the same year the crude death rate for men and women was
8.7 and 6.9 respectively, while life expectancy stood at 67.8 and 71.7
years. The maternal mortality rate (0.6) and infant mortality rate (30)
were also appreciably low. 41
More to the point, the British legal code is renegotiated day-in and
day-out, so that marriage and inheritance practices which actually
prevail are no longer solely determined by a higher authority. How
people live, and more importantly, who they live with, is invariably
decided upon independently of legal interventions. For instance,
beginning with the Land Development Ordinance (1935), which was
introduced in respect of land colonization schemes, the principle of
primogeniture was introduced into virtually every piece of land
legislation, including those enacted in the post-Independence era. 42
But, although the decree which placed legal restrictions on the sale,
sub-division, leasing and mortgage of allotments operated against
customary bilateral inheritance, even in new settlement schemes the
law is flouted daily, and sub-division of allotments among male and
female offspring continues to be practiced. Moreover, as in the past,
what is, in fact, inherited is not land but usufructory rights; land is
cultivated either jointly (with each offspring getting a portion of the
harvest depending on his or her requirements at the time) or in rotation
(with less productive land being rotated to ensure equitable division of
surplus). 43

Finally, although most young people formally register their

marriage, in case of divorce customary law still prevails, so that in
rural areas in particular legal formalities are dispensed with because
they are expensive, cumbersome and impractical. However, due to
legal stipulations, these couples have had to face fresh anxieties, for
since subsequent unions are in the eyes of the law "bigamous," the
new "true" wife and family are not able to inherit. Indeed, the fact that
in theory the first wife can be disinherited through a will does not
provide emotional security for her successor either, as the former
could still take her case to court.
And yet, it is a curious fact that although lacking judicial backing,
it is the union which actually prevails at time of death which is

129

considered legitimate by both villagers and grassroots level

administrators alike, so that it is those practical arrangements (call it
customary law if you will) which are best suited to each occasion that
have ultimately tended to prevail.

Conclusion
In this article, I have painted a rather crowded canvas, as the everchanging inheritance and marriage customs were, out of sheer
necessity, highlighted in considerable detail. On the one hand, this
detail enabled me to demonstrate that actual practices do not always
synchronize with the letter of the law. On the other hand, to the extent
that jural rules mold a nation's development, present and future
conditions must nevertheless be viewed against the backdrop of past
legal enactments.
In recent years, anthropologists and historians have sought to
"deconstruct" polar concepts such as polyandy/polygyny,
matrilocal/patrilocal, endogamy/exogamy, etc. with a view to combat
ethnocentrism in academic discourse. In Sri Lanka, also, these
boundaries are blurred. For instance, depending on the life cycle of the
family, a couple may move residence between the wife's and husband's
kin. Also, as in the past, different marriage forms co-exist within a
single family unit. Indeed, as today, not everyone did, in fact, marry,
and the existence in the past of a flourishing monks' and nuns' order
meant that although disrobing was not stigmatized (hence common),
celibacy was not an exception. Finally, due to inter-marriage over the
centuries, even the very existence of a distinct "Sinhala" identity must
be questioned.
Despite these insights, however, qualitative differences between
various marriage and inheritance forms do exist, and cannot be
dismissed as mere "ethnographic authority." Further, there is also a
danger in reifying culture to the neglect of its material roots, so that
kinship relations may come to be perceived as the eternally
unknowable "thing in itself" which the classical Marxists rebuffed in
their polemics against Kant. Yet, as Edmund Leach, a prominent

130

scholar of kinship among the Sinhalese pointed out, economic

constraints are prior to those of morality or law. To quote,
My colleagues.., have worked themselves into a position in which
kinship structure is treated as a "thing in i t s e l f . " . . . My protest is not
directed against the study of kinship . . . but attempts to isolate
kinship behaviours as a distinct category, explainable by jural rules
without reference to context or economic self-interest. ,,44

Notes
.

3.

.
.

7.
8.
9.
10.

Carolyn Fluehr-Lobban, "Frederick Engels and Leslie White: The Symbol

Versus the Role of Labour in the Origin of Humanity," Dialectical
Anthropology, Vol. 11, No. 1 (1986), pp. 119-26; Mason Hersey, "Lewis
Henry Morgan and the Anthropological Critique of Civilization," Dialectical
Anthropology, Vol. 18, No. 1 (1993), pp. 53-72; William J. Peace (1993),
"Leslie White and Evolutionary Theory," Dialectical Anthropology, Vol. 18,
No. 2 (1993), pp. 123-52; and Kojo Yelpaala, "Western Anthropological
Concepts in Stateless Societies: A Retrospective and Introspective Look at the
Dagaaba," Dialectical Anthropology, Vol. 17, No. 4 (1992), pp. 431-71.
Ibid., p. 464.
For the original source see F.A. Hayley, Treatise on the Laws and Customs
of the Sinhalese, Including Portions Still Surviving Under the Name of
Kandyan Law (Colombo: Cave, 1923). More recently, see Michael Roberts,
Some Aspects of Economic and Social Policy in Ceylon, 1840-1871 (PhD
Thesis, University of Oxford, 1965); Carla Risseeuw, The Fish Don't Talk
About the Water: Gender Transformation, Power and Resistance Among
Women in Sri Lanka (Leiden: E.J. Brill, 1988) and Savitri Goonesekere,
"Gender Relations, Law, and Public Policy in Sri Lanka: The Experience of
a Colonized Society After Independence" (Mimeo, 1993).
Heinz Bechert, "Mother Right and Succession to the Throne in Malabar and
Ceylon," Ceylon Journal of Historical and Social Studies, Vol. 6, No. 1
(1963), pp. 761-778.
Palita Weeraman, "The P6ruwa Ceremony in Southern Sri Lanka," Journal
of the Royal Asiatic Society (Sri Lanka), No. 36, pp. 9-22.
Hayley, Treatise.
Bechert, 1bid.
Hayley, Treatise, p. 174.
Robert Knox, An Historical Relation of Ceylon (Dehiwela: Tisara
Prakasakayo, [1681] 1981), p. 248.
Hence, the final request by the last Kandyan king to the British was to protect
his wives.

131
11.

12.
13.
14.

15.
16.

17.
18.
19.

20.
21.
22.
23.

24.

Also see R.W. Ievers, Manual of the North-central Province (Colombo:

George J.A. Skeen, 1899) who describes the practice "almost universal" in
the Kandyan Kingdom. However, see Stanley J. Tambiah, "Polyandry in
Ceylon: With Special Reference to the Laggala Region" in Christoph Von
Furer-Haimendorf ed., Caste and Kin in Nepal India and Ceylon (Delhi:
Sterling Publishers, 1978), p. 269. Tambiah claims that the extent of
polyandry remains vague: Lawrie found polyandry to be "rare," while
Modder found that while not unusual among the Kandyans, it was
uncommon, and "was resorted to according as the needs and requirements
of each individual family demanded it."
Quoted in C.G. Seligmann and Brenda Z. Seligmann, The Veddas (New
York: Humanities Press, 1969), pp. 100-101.
Tambiah, "Polyandry in Ceylon."
James Emmerson Tennent, Ceylon: An Account of the lsland; Physical
Historical and Topographical (Volume II) (London: Longman, Green,
Longman and Roberts, 1859).
L.R. Hiatt, "Polyandry in Sri Lanka: A Test for Paternal Investment
Theory," Man (New Series), Vol. 15, No. 4 (1980), pp. 583-602.
Unlike in India, in Sri Lanka infanticide was never restricted to females. It
was practiced if the baby was born at an inauspicious time, in which case he
or she was adopted by kin, as the child was considered unhappy to the
parents only. Since it was rare for the first-born to be destroyed, I suspect
that infanticide was performed by the poor in lieu of abortion. John Davy,
Account of the Interior of Ceylon and its Inhabitants, with Travels in that
Island (London: Longman, [1821] 1083), pp. 216-217, points out that
infanticide was rare, and only practiced "when the parents themselves are on
the brink of starving, and must either sacrifice a part of the family or die
altogether."
Tambiah, "Polyandry in Ceylon."
Nandasena Rathnapala, "Research Methodology in Sri Lanka Women's
Studies (Mimeo, 1994).
Due to the principle of equality in intestate succession, this land and house
belonged to either her father or her mother, so that with respect to the other
parent, marriage was exogamous.
As the husband lived and worked on his in-laws' land, he was considered an
outsider, and was also liable to divorce or expulsion at any moment.
Hayley, Treatise, p. 330.
Goonesekere, "Gender Relations, Law and Public Policy in Sri Lanka."
Indrani Iriyagolle, "The Unique Position of Sinhala Women: A Historical
Perspective," Journal of the Royal Asiatic Society of Sri Lanka (New Series),
No. 34 (1991), pp.78-101. Also Sirima Kiribamune, "Women in Pre-modern
Sri Lanka," in Sirima Kiribamune and Vidyamal Somarasasinghe eds.,
Women at the Crossroads: A Sri Lankan Perspective (New Delhi:
ICES/NORAD, 1990), pp. 15-40.
Nur Yalman, Under the B6 Tree (Colombo: s.l., 1967), p. 31.

132
25.
26.

27.
28.
29.

30.
31.
32.

33.
34.
35.

36.
37.
38.
39.
40.
41.
42.
43.

44.

Quoted in Iriyagolle, Ibid., p. 90.

According to Carolyn Fluehr-Lobban, "Marxism and the Matriarchate: One
Hundred Years After the Origin of the Family, Private Property and the
State," Critique of Anthropology, Vol. 7, No. 1 (1987), pp. 5-14, neither
Morgan nor Engels ever used the term "matriarchy," which may have been
attributed to them due to the cursory translation of the German mutterrecht
into "mother-right."
Hayley, Treatise.
Knox, Historical.
Tilaka Metthananda, "Women in Sri Lanka: Tradition and Change," in
Sirima Kiribamune and Vidyamal Somarasasinghe eds., Women at the
Crossroads: A Sri Lankan Perspective (New Delhi: ICES/NORAD, 1990),
pp. 41-71.
Quoted in Ievers, Manual, p. 92.
Seligmann and Seligmann, Veddas.
According to Hayley, illicit sex with the king's concubine was less serious
than that with the queen, and was met by public shaming such as cutting the
man's or woman's hair and corporal punishment.
Roberts, Some Aspects.
Tennent, Ceylon, p. 900.
Quoted in Risseeuw, "Transformation in Gender and Kinship in Relation to
State Formation: The Case of Sri Lanka Under Colonial Rule" (Mimeo,
1993), p. 10.
Roberts, Some Aspects, p. 72; parentheses mine.
Thus, with the new legal code, unpalatable concepts including "wedlock,"
"adultery," "bigamy" and "bastard" reared their head.
Risseeuw, The Fish, p. 53.
Winslow; quoted in Metthananda, Ibid., p. 62.
Goonesekere, Ibid., 1993.
Department of Census and Statistics, 1991. Due to continuing civil war, the
1991 decennial census was not conducted.
The Land Commission [Report, Sessional Paper X, 1958:92] criticized the
concept as in conflict with local custom and recommended an amendment.
This insight is based on one year's field work which was conducted by the
author in the country's largest irrigation-settlement scheme, the Mahaweli
Programme.
Edward R. Leach, Pul Eliya: A Village in Ceylon. A Study of Land Tenure
and Kinship (Cambridge: Cambridge University Press, 1961), pp. 305-306.