theswalame law

7/27/2019 theswalame law

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http://www.wluml.org/node/1076

Midweek Review

Thesawalamai and women

Thesawalamai can be used as an example to illustrate the disadvantagesfaced by women when they engage with the law, especially customary

law. Thesawalamai is customary law that is applicable to the inhabitants

of the Northern province as codified in the Thesawalamai and

Matrimonial Rights & Inheritance Ordinance No.1 of 1911 as amendedby Ordinance No.58 of 1947. According to the abovementioned statutes

if a woman to whom Thesawalamai applies marries a man to whom

Thesawalamai does not apply then she shall not during the subsistence of

the marriage be subject to Thesawalamai. However, if a woman to whomThesawalamai does not apply marries a man to whom Thesawalamai

does apply then she shall during the subsistence of the marriage be

subject to Thesawalamai. The woman does not have absolute power ofdisposition of her immovable property but requires written consent from

her husband. The woman then is not viewed as an individual by the law

instead her legal status is tied to that of her spouse. This protective andpaternalistic attitude clearly illustrates that in the eyes of the law the

woman is incapable of making rational decisions about the disposition of

her property.

If the husbands written consent is not forthcoming, section 8 allows the

District Court in which the woman resides or in which the property to be

alienated is situated, to dispose of or deal with such property without thehusbands written consent, i.e. the Court supplies the consent required by

section 6. This is done if it is deemed that the husband is unreasonably

withholding consent or is unable to give consent and the interests of thewife and children of the marriage require that such consent should be

dispensed with. The husband cannot validly give general consent for

future disposition as it is deemed that it would amount to the release ofhis protectorship, the purpose of the provision. Does this mean that in

cases where the husband has disappeared the women have to go to courts

to dispose of their property?

Property acquired during the subsistence of the marriage from the profitsof the spouses is thediathetam. It is property common to both spouses,

i.e. they are co-owners.

Thediathetamconsists of:

a) property acquired for valuable consideration by either husband or wife

during the subsistence of the marriage, such consideration not forming or


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representing any part of the separate estate of spouses

b) profits arising during the subsistence of the marriage from the

property of husband or wife (separate property)

The husband during the subsistence of the marriage remains the managerof the Thediathetam property. He is regarded as the sole and irremovableattorney of his wife- it is thought that the wifes persona "is merged with

that of the husbands". The husbands power does not extend to donation

but is limited to sale, mortgage or lease. This makes one wonder whetherthediathetam should be viewed as common property if the wife does not

have the power to deal or dispense? Sons inherited post-mortem, so if all

daughters were already dowered the property of the deceased woman

would revert to her parents and then to her brothers, i.e. the cheedenam,which was the sole property of the woman was diverted away from the

female line to the male line.

These are but a few principles of Thesawalamai law that openly

discriminate against women and rob women of the right to make

decisions about their life and property. It is therefore evident that in the

eyes of Thesawalamai women are deemed weak objects in need ofprotection.

Cultural Relativism vs. Feminism

While we call for legal reform to address the discrimination faced bywomen we should also keep in mind that women from besieged

communities who might have been subjected to extensive state controlsdue to their race, ethnicity, class or a similar factor may take refuge in

the private sphere of their ethnic/racial/class communities. Theirreluctance to support legal reform that impacts on their particular

communities highlights the conflict between individual rights and the

rights of the community. While supporting diversity and right ofcommunities to protect their culture we should ensure that the rights of

women are respected and they have the right to make decisions that

affect their lives and families.


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Thesawalamai law applies to all inhabitants of Northern Province, as a special law aspect. But it applies

to all lands situated in Northern Province irrespective of Race or Ethnicity.

Reguklation No 18 of 1806, clause 06 States Thesawalamai shall continue in its applicability.

Thesawalamai applies to Tamils in marriage matters through The Jaffna Matrimonial rights and

Inheritance Ordinance No 01 of 1911.

Marriage between a Tamil subject to thesawalamai and a Tamil not under Thesawalamai it is not an

issue. Because they were not different race or nationality.

Sec: 03 of such Ordinance express two situations on applicability on marriage issues.

3(1) When a woman subject to Thesawalamai married a man who not governed by Thesawalamai. She

automatically exclude from Thesawalamai under substance period of such marriage.

3(2) when a woman not subject to Thesawalamai married a man who Comes under Thesawalamai. She

automatically comes under Thesawalamai until break the marriage.

Thesawalamai is not a pure personal law, because it need a territorial application also. A personal subject

to Thesawalamai who can change his personal law through change his inhabitancy, unlike the Muslim law

or Kandyan Law.

Fernando V Proctor

This case analyzed the wife of Jolly Phillips was governed by Thesawalamai or Not? She descended from

Jaffna Tamils. She was born in Puttalam and lived & died in Chilaw. She never visits to Jaffna, so she

could not be called a Malabar inhabitant of Jaffna with the regulation 18 of 1806. The noticeable factor is

her husband also not a Malabar. So she does nit herself become an inhabitant of Jaffna- Wood Renton .J

Vellupillai V Sivagamipillai

A man Jaffna Tamil went over to Batticolo and resided for thirty five years, died in 1907. After acquiring a

large number of property in Batticollo, he married in 1891 in Jaffna, a Jaffna native. He setteled his family

in Jaffna, but he visits periodically to Jaffna. In 1910 he removed his family to batticollo and lived thereuntil his death.

Question is Whether the Matrimonial rights of the parties were governed by the Thesawalamai or Roman

Dutch Law?

Held : both the husband & wife were Malabar inhabitants of the province of Jaffna. So their matrimonial

rights were governed by Thesawalamai.


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Some other legal positions derived from Velupillai V Sivagamipillai

Inhabitancy applies to a person who had acquired a permanent residence in the nature of a domicile in

Jaffna- Wood Renton C.J

One who has his home in Jaffna he get the Inhabitancy Middleton .J

If a person governed by Thesawalamai at the time of marriage he cannot change his inhabitancy later to

the detriment of his wife.

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