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| Sunday, 10 March 2002 |
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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. How appropriate is it in the present social context where offspring give up traditional practices such as agriculture for other professions and leave home to settle in more lucrative pastures? How many of us women know that we can make a difference to our property and inheritance rights by how much we know about the relevant laws and what choices we make in life? 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." |
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