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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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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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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
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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
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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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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.
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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
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Notes
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