Right of Children to Inherit Parents’ Intestate Property: A Critical Analysis in Thesawalamai Law

Abstract

During the early years of British rule, by the proclamation of 23rd September 1799, the continued operation of the Thesawalamai was guaranteed. In the present context, the Constitution of 19781 has guaranteed the continued operation of all existing written and unwritten laws after the enactment of the Constitution. Accordingly, Tamil inhabitants of the Northern Province continue to be governed by the Thesawalamai. Though Thesawalamai has been influenced by many laws, this research will focus on the influence of Roman Dutch Law and Hindu Law.Two waves of immigrants came to Sri Lanka from India.The first immigrants called Malabar came from Malabar Coast. They followed a matriarchal life system.The second wave of immigrants came from Coromandel Coast and with the advent of Arychakravaty, the Hindu Law was introduced. They followed a patriarchal life system. The Dutch first codified the customs of Jaffna people and the British codified the Thesawalamai by the Regulation of 1806. In the early days of the British rule the provisions of the Thesawalamai Code was elucidated and supplemented by reference to Hindu Law, but later this policy underwent a change and when customary law was silent, the Roman Dutch law was applied. Since this Code does not provide for all matters in relation to the subject of marriage, the Tamils who are subjected to Thesawalamai are governed by the General Law of marriage in related to certain elements of marriage. However, the Code addresses the issues of matrimonial property. The case law establishes that Tamils governed by the Thesawalamai can contract a valid customary marriage.2 Yet the provisions relating to age and prohibited relationships in the General Law cannot be circumvented by such a customary marriage. The earlier position in Hindu Law was that there was no prohibition against a person having more than one wife. Children born to different wives were treated as legitimate. Only a child born to a concubine was treated as an illegitimate child. There is evidence to suggest that a similar practice prevailed in Jaffna during the Dutch period3. In the post-Vedic periods, Hinduism rejected the notion of polygamy and it is now considered as immoral. Furthermore, modern laws in relation to family emphasize that spouses must not marry during the subsistence of a valid marriage