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Religious and Customary Law
Posted by an@w
on
3:42 AM
When Burma was included in India as a part of the British empire, there was a question as to whether the principle of international law in relation to Buddhist Law would apply in deciding the validity of marriages between Burmese Bud- dhists and Muslims or Hindus. The answer was beset with difficulties, as there was no provision regarding mixed marriages in section 13 of the Burma Laws Act of 1898. The courts in Burma had been frequently called upon to decide the validity of mixed marriages, especially when questions arising from divorce or succession were involved. In fact, no marriage is legally possible between a Mus- lim man and a Buddhist woman or vice versa. If there is a conversion to Islam however, a legal marriage can be contracted with any person irrespective of his or her previous religion.17 The Holy Koran permits polygamy as a legal institu- tion: a man may have up to four wives.18 During colonial rule in Burma, most Muslim men who could afford more than one wife took Burmese women as their wives, in addition to their Muslim wives. This did not raise any legal ques- tions, however Burmese wives lost all rights which they had as Burmese women, such as joint ownership of property and a preferential right to inherit. The legal questions only arose when cases of divorce were brought to the courts. The Holy Koran makes no provision for wives to divorce their husbands (a right normally reserved to husbands) except when they fear abuse.19 The Burma Laws Act of 1898, remaining in force even today, allows Islamic Law to form the rule of decision in such cases.20
In mixed marriages between Burmese Buddhist women and Hindus, Burmese women were in a worse position. Many Indians migrated to Burma and it often happened that Burmese women, not knowing anything about Hindu Law and customs, married with Hindu men and subsequently lost all the rights conferred on them by Burmese customary law.
The Sikhs in Burma were governed by Hindu Law. Although the Sikh religion is a blend of Hinduism and Islam, its basic tenets are similar to those of Hinduism (however without caste distinctions).
Section 13 of the Burma Laws Act of 1898 says nothing of the law applicable to Christians, as most of their cases were regulated by British law. According to Christian Marriage Act XV of 1872, a legal marriage between a Burmese Bud- dhist and a Christian could be contracted either by means of a Christian reli- gious ceremony or by civil contract before a Registrar. Under this Act, conver- sion was not necessary but a Buddhist could not sue a Christian for a divorce under the Indian Divorce Act.
By section 13, Burmese Customary Law became the Buddhist Law. As a result, Burmese society was divided into a number of religions as well as being geo- graphically divided by other regulations. As the society was thus divided, com- munities were strongly entrenched by religion.
This situation was known to the colonial government as well as to Burmese na- tionalists and judges. As a result, the Special Marriage Act of 1872 was amended in 1923, making intermarriage easier. This was a step forward but still not en- tirely satisfactory. Hence, a new Act came into force in 1939,21 the predecessor of the Buddhist Women’s Special Marriage and Succession Act which was drafted and passed by parliament in 1954,22 the only Special Marriage Act in Asia which protects the rights of Buddhist women. Section 21 of this Act made provisions for the registration of marriage, thereby greatly improving the posi- tion of the Buddhist woman who marries a non-Buddhist man. If a non- Buddhist man and a Buddhist woman live together in such manner as would raise the presumption that they are man and wife by Burmese custom, the Act establishes that they are lawfully married from the time they started to live to- gether, even if there is no written document or registration. In such a case, they can formalize the marriage by registration or they can live together as presumed by the Act. Either way, their marriage is governed by Burmese Customary Law.23
The Buddhist Women’s Special Marriage and Succession Act says the following with regard to conversion: If a woman who is a citizen of Burma converts to Buddhism while she is married, then the whole family comes under Burmese customary law.
While the different religions in Burma were given the freedom to settle affairs through their own laws, the accountability of any religious trust (not only of Buddhist monasteries and pagodas, but also of mosques, churches, synagogues and Hindu temples) was ensured by Section 92 of the Civil Procedure Code of 1909.24
In mixed marriages between Burmese Buddhist women and Hindus, Burmese women were in a worse position. Many Indians migrated to Burma and it often happened that Burmese women, not knowing anything about Hindu Law and customs, married with Hindu men and subsequently lost all the rights conferred on them by Burmese customary law.
The Sikhs in Burma were governed by Hindu Law. Although the Sikh religion is a blend of Hinduism and Islam, its basic tenets are similar to those of Hinduism (however without caste distinctions).
Section 13 of the Burma Laws Act of 1898 says nothing of the law applicable to Christians, as most of their cases were regulated by British law. According to Christian Marriage Act XV of 1872, a legal marriage between a Burmese Bud- dhist and a Christian could be contracted either by means of a Christian reli- gious ceremony or by civil contract before a Registrar. Under this Act, conver- sion was not necessary but a Buddhist could not sue a Christian for a divorce under the Indian Divorce Act.
By section 13, Burmese Customary Law became the Buddhist Law. As a result, Burmese society was divided into a number of religions as well as being geo- graphically divided by other regulations. As the society was thus divided, com- munities were strongly entrenched by religion.
This situation was known to the colonial government as well as to Burmese na- tionalists and judges. As a result, the Special Marriage Act of 1872 was amended in 1923, making intermarriage easier. This was a step forward but still not en- tirely satisfactory. Hence, a new Act came into force in 1939,21 the predecessor of the Buddhist Women’s Special Marriage and Succession Act which was drafted and passed by parliament in 1954,22 the only Special Marriage Act in Asia which protects the rights of Buddhist women. Section 21 of this Act made provisions for the registration of marriage, thereby greatly improving the posi- tion of the Buddhist woman who marries a non-Buddhist man. If a non- Buddhist man and a Buddhist woman live together in such manner as would raise the presumption that they are man and wife by Burmese custom, the Act establishes that they are lawfully married from the time they started to live to- gether, even if there is no written document or registration. In such a case, they can formalize the marriage by registration or they can live together as presumed by the Act. Either way, their marriage is governed by Burmese Customary Law.23
The Buddhist Women’s Special Marriage and Succession Act says the following with regard to conversion: If a woman who is a citizen of Burma converts to Buddhism while she is married, then the whole family comes under Burmese customary law.
While the different religions in Burma were given the freedom to settle affairs through their own laws, the accountability of any religious trust (not only of Buddhist monasteries and pagodas, but also of mosques, churches, synagogues and Hindu temples) was ensured by Section 92 of the Civil Procedure Code of 1909.24
