Other strange customs affecting marriage and the constitution of the family may be found in abundance in South India. Some of them doubtless embody concepts peculiar to all earliest stages of society, and carefully looked into may serve to link together whole groups of tribes whose connection hitherto has not been suspected. Others of them may point unmistakably to an Arya, others to a Drâviḍa, origin. All should be investigated. The essentially monogamous theory of marriage adopted, if I mistake not, by modern Sanskrit writers, is wholly irreconcilable with divers theories of marriage acted upon by non-Brahman tribes and castes resident in South India. And if so, it would seem to be not only absurd but monstrously unjust that our courts should administer in. discriminately to all non-Muhammadan litigants the Brahman law of succession and inheritance. As that eminent jurist, Holloway, J., once feelingly remarked, to do this is grotesquely absurd. It would be just as reasonable to give them the benefit of the Feudal Law of real property.'1

India, by which the maternal uncle may claim his sister's first two daughters as wives for his sons, paying for each only eight out of twenty pagodas, the market price. Shortt, Trans. Ethn. Soc. N. S., vii. 187. Ellis (see Strange, ii. 165) says that in South India marriage with the daughter of the maternal uncle 'is considered incumbent.' And confer my View of the Hindû Law, pp. 92-3. V. N. Mandlik (at Hindû Law, pp. 415 et seq.) goes into the question at large.

In the case reported at VI. M. H. C. R., 310.

CHAPTER VI.

The Thessa-Waleme-Position of Tamil women in Ceylon—Subordination of sons-Adoption-Bouchet's letter-Daughters do not inherit-United families - Division-Fathers' debts Orphans-Adoption- Oppári― Steele's Hindoo Castes-Polygamy, remarriage, local usages opposed to the Śástras—The Abbé Dubois-Customs of Mysore-Boulnois and Rattigan's customary law in the Panjab-The Village communal system -Joint ownership-The Ghar-jawai-Law in the French territories— The Nibandhas-Custom-Do Brahmans go by their Śâkhâs?— We know nothing about them—Rogerius about marriage-Marco PoloAdoption not a religious practice, but a natural—Instance of adoption of a girl-Doctrine of survivorship-The mother and widow go shares— Duty of performing obsequies-The pinda-The Hell called Put-Early forms of wills-The Upanayana-Indians do not live like Brahmans— Concubinage-Incest-Marriage of widows-The Community-An unheard-of beastliness.

It would be impossible for a student who undertakes to investigate in a comprehensive and philosophic spirit the manners and customs of the people of South India, to neglect our next topic of inquiry, which is-(9) A few collections of usages and customs of so-called Hindús exist and are accessible, as Boulnois and Rattigan's, Steele's, that of the Ceylon Tamils, and perhaps some few others. How far do they resemble and differ from one another? And to what extent, if any, do the rules contained in them appear to be based upon, or sanctioned by, the received Hindû law-books? Or appear to agree with such notices of local usages and customs as are found in Hindû law-books?

Possibly the most complete collection of Indian

6

laws and customs in existence is the Thessa Waleme,' or country law observed by the Tamils of Ceylon, a copy of which in English is given in Byerley Thompson's Institutes of the Laws of Ceylon. In that fortunate island the Government has never paid Brahman Pandits to forge legal fetters for the people, and so far back as on September 23, 1799, the validity and authority of the customary law of the Tamils was confirmed by proclamation.1 On perusing this remarkable and very interesting compilation, what principally struck me was the extreme care with which the wife's rights of all kinds appear to be protected. Far from being treated as a slave and drudge, or being classed with infants and lunatics, the Tamil wife would appear to enjoy a position of liberty and dignity such as perhaps is accorded to women in but few European countries. Thus it is expressly provided that upon the death of a man leaving an infant or infants, his widow succeeds to the estate, and 'the son or sons may not demand anything so long as the mother lives; ' 2 whilst, on the other hand, she is bound to give dowries with her girls. Provision is made for the remarriage of the widowed mother of a family.3 And she is at liberty to adopt a child, to succeed to her own property.1

1 Mayne states at p. 35 that this collection of customs was made in 1707, under the orders of the Dutch Government.

2 I strongly suspect this to be the real law in nearly all the castes in South India. Of course the widow so succeeding may not make away with the estate.

3 Mayne (§ 87) thinks that formerly it was the law for all Tamils that widows might remarry. I do not doubt it.

4 Compare with the Kritrima form of adoption, said to be now

THE THESSA WALEME.

123

The dependent position of sons is very clearly marked out. 'So long as the parents live, the sons may not claim anything whatsoever; on the contrary, they are bound to bring into the common estate (and there let to remain) all that they have gained or earned during the whole term of their bachelorship.' And again, Although the parents do not leave anything, the sons are nevertheless bound to pay the debts contracted by their parents; and although the sons have not at the time the means of paying such debts, they nevertheless remain at all times accountable for the same; which usage is a hard measure, though according to the laws of the country.' long as the parents remain fit for the conduct of affairs, the sons have no concern in the management of the family business, but the old age and incompetency of the parents leads to 'division' amongst the sons, for the purpose of enabling them the better to support and maintain the parents. The sons often fail in this their duty, and disputes are bred, and the parents take revenge on their undutiful offspring;

So

peculiar to Mithilâ, and by which a woman may adopt to herself, Sutherland's Synopsis, note v. Mayne (at p. 86) says of it: 'It has no connection with religious ideas, and is wholly non-Brahmanical.' Sed quære. Mithilâ always was a stronghold of Brahmanism. Observe that nothing is said about a widow adopting to her husband. I cannot understand how the belief has come about amongst English lawyers that a Hindû widow may adopt to her husband: so far as I can see, this belief is entirely opposed to Hindû ideas.

1 Compare II. Strange, 274-6. Ellis appears to have remarked, as touching the Pandit's answer, that the general obligation on the son to pay the father's debts is independent of assets, that 'the law seems hard, but it is the law. Pitarunavan Satru: "A father in debt is an enemy to his son," says the Sanskrit proverb.' The Madras High Court has utterly abrogated this law. See my View, p. 67; and Mayne, § 276.

and to meet this state of things certain provisions of the law have been devised.

The customs relating to adoption are curious. As has been shown above, a wife acting alone may adopt as for her own property. And two children, for instance a boy and a girl not related to one another, may be adopted by a man and his wife at the same time. And a man may adopt a girl belonging to a caste other than his. The descent of property in the case of adoption is carefully regulated; and, to prevent injustice, the consent of near relatives to a proposed adoption is made obligatory.1

Such are a few of the more important rules of the Thessa Waleme. Marred by numerous defects, the work nevertheless appears to be as a whole useful and satisfactory, and doubtless it would have been well for the Tamils of South India if their customs had been collected in as good a form before the beginning of this century. It is not too late to do the thing now, and one may yet hope to see the Madras Government undertake the work of gathering together and confirming a body of local customary law.

With the Thessa Waleme may be compared what Father Bouchet has recorded in the letter 2 cited in my

1 This is most interesting and important. As will be seen below, this consent was necessary in South India also, and for a very sufficient reason, namely, that the kinsmen's rights would be affected by the introduction of a stranger into their family.

2 This long and very remarkable letter of the year 1720, which fortunately has been preserved in the Lettres curieuses et édifiantes, contains most valuable matter. It begins by stating that the Indians of the South, 'Ont ni Code ni Digeste, ni aucun livre où soient écrites les Loix ausquelles ils doivent se conformer pour terminer les différends qui nais