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CORNELL 
 
 UNIVERSITY 
 
 LIBRARY 
 
 THE 
 
 CHARLES WILLIAM WASON 
 
 COLLECTION ON CHINA 
 
 AND THE CHINESE 
 
NOTES ON BUDDHIST LAW 
 
 BY THE JUDICIAL COMMISSIONER, BRITISH BURMA. 
 
 1.— MARRIAGE 
 
 1. — How contracted. 
 2. — Its incidents. 
 
 TAKfcrjj: prricj of thi supet. «ovt. ruiKTiKs /nB sTAty., BtjifflmrtJCT i«3. 
 
 [Second Reprint.] 
 
 Price.-K Iffi] 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924023169323 
 
INPEX 
 
 TO 
 
 NOTES I TO \.II ON BUDDHIST LAW. 
 
 1. t^iy^ contf,acte4. 
 i. lit incidents 
 
 NpTE- r— MARRiApp. 
 
 Note U. Marriage. 
 1. How dissolved. The right to divorce and the rights flowring from divorce. 
 
 Note III. Marriage. 
 
 Pref^e including intro^Juctory reiQATlp Ijy; Pr. E. FoTfihhjm^^w', Prfoessor 
 of Pali . 
 
 1. Translation of Wunnana Dhammathat on marriage, with a commen- 
 tary. 
 
 2. Translation of the Wunnana Dhammathat on divorce, with a commen- 
 tary. 
 
 Appendices. 
 
 A —Translation of the Wini Tsaya Paka Thani Dhammathat on marriage 
 and divorce. 
 
 B.— Cases illustrative of the Buddhist law as now administered in the 
 Court of the Judicial Commissioner of British Bnrma and the Sub- 
 ordinate Courts. 
 
 Note IV. — Marriage and Divorce. 
 
 1. On the Hindu origin of the Burmese law, by J. Jardine, Esq., Judicial 
 Commissioner of British Burma, 
 
 2. Introductory preface by Ur. E. Korchhammer, Professor of Pali. 
 
 3. Translation of the Wagaru Dhammathat on marriage and divorce from 
 a Pali manuscript on palm-leaves by Dr. E. Forchhammer, Professor of Pali. 
 
 4. Translation of the Manu Reng Dhammathat on marriage and divorce 
 from the printed Burmese edition of Maung Tet Tu, with notes, by Dr. 
 E. Forchhammer, Professor of Pali. 
 
 5. Appendix of cases illustrating the Busmese law of marriage and divorce 
 as now administered. 
 
 Note v.— Inheritance and Partition. 
 Prefaa. 
 
 ■ 1. Translation by Mr. S. Minus of the chapter on inheritance and some 
 miscellaneous lections of the Manu Wunnana Dhammathat as edited in Burmese 
 by Maung Tet Tu, with notes by J. Jardine, Esq , Judicial Commissioner of 
 British Burma. 
 
 2. Translation of the. Law of Inheritance according to the Wagaru Dhamma- 
 that by Dr. E. Forchhammer. Professor of Pali, from a Pali manuscript on 
 palm-leaves in his pussesiion. 
 
ii INDEX. 
 
 Note VI.— Inheritance and Partition. 
 Prtfate. , 
 
 Translation by Maung Tecka Phyu of' Vbh Law of Inheritance according to 
 the Mohavicchedani Dharamathat from a Burmese manuscript : edited by Dr, 
 E, Forchhammer, Professor of Pali. 
 
 Note VII.— Inheritance and Partition. 
 
 Preface. 
 
 Translation by Maung Te«dca' Phyii and Mr. S. Minut.l from a Burmese 
 munuscript on palm-leaves, of the Law of Inheritance in ihe DhammSV^asa '• 
 revised and edited by Dr. E. Forchhammer, Professor of Pali. - '"''' " 
 
 Note VIII.-iMARRiAGE and Divorce. 
 
 I Frtfaa, 
 
 Translation by Mr. >S. Minus of the {Law of Marriage and Divorce according 
 to tlie 'Mohavicchedani Dhammathat Irom a Bnrmese manuscript on'^-piitm- 
 leaves) : edited by Dr. E. Forchhammer, Profeisor of Pali, 
 
IN THE COURT OF THE JUDICIAL 
 COMMISSIONER, BRITISH BURMA. 
 
 Circular Memorandum No. 28 of 1882. 
 [NOT TRANSLATED.] 
 
 Dated Rangoon, the 17th July 1882. 
 
 The Judicial Commissioner herewith distributes copies 
 of a note on the modes in which marriage may be contracted 
 among Burmese Buddhists. It is meant as much to awaken 
 criticism and discussion as for information or guidance. It 
 sums up the whole law of the Dhammathaton the subject and 
 incorporates the very fev/ judicial decisions I have been able 
 to find. 
 
 2. The idea of a Manual of Buddhist law was suggested 
 tome by Colonel Munro,the Deputy Commissioner of Bassein, 
 who pointed out that want of precision and proper classifica- 
 tion which renders the Dhammathat a most inconvenient book 
 of reference. It is clear that a set of institutes are required 
 incorporating the judicial interpretations for the use of the 
 Courts and Advocates. 
 
 3. The present note deals with only one part of the law of 
 marriage ; and yet the difficulties attending the compilation 
 of institutes present themselves at once. The Dhammathat 
 and its translation are ambiguous ; the business of modifying 
 its rules to suit the changed times has hardly been begun by 
 Judges ; and on some points, for example, prohibited degrees, 
 there are no authorities available. 
 
 4. If I waited for new translations and the editing of 
 new authorities, the Judges and Magistrates would also have 
 to wait without getting any guide to the intricacies of the 
 Dhammathat, or to the relation of that Code to the penal laws 
 about marriage. Ars longa vita brevis. For a long time the 
 Buddhist law will not be settled : we must wait until it has 
 been interpreted by decisions. At present the Judges are in a 
 like position to the Judge described in the Dhammathat who 
 has to decide like a. blind man feeling his way with his staff 
 and taking the way that is best. But that seems to me to make 
 it more the duty of the Judicial Commissioner to smooth the 
 way of the other Judges as niuch as possible by supplying 
 even an imperfect guide. 
 
( 2 ) 
 
 5. In this endeavour! have been aided by the advice of 
 Mr. C^illbiattks and Mr. ^en oh some (iispute A points ; and 
 I am in hopes oj adding nsotes on the incidents of marriage and 
 the modes of dissolving the contract. 
 
 Judicial Commissioner, British Burma. 
 
NOTES ON BUDOHlSt LAW. 
 
 E'MARRlAdE— HOW CONTRACTED. 
 
 By John Jardine, Esq., Bo.CiS., Judicial Commissioner of 
 British Burma, 
 
 The Burma Courts Act, XVII of 187S, section 4, makes the Bud- 
 dhist law the Ux fori of our Courts in questions regarding succession, 
 in heritai^ce, marriage or cast^, or any religious usa^e or institution, 
 incases where the parties are iBud^hists, except in so far as such law 
 has been altered or abolished by legislative enag^ment, or is opposed 
 to any custom having the force of law in British Burma. 
 
 2- The Buddhist hw is to be found in the Dhammathats. In this 
 note on marriage I have _used Richardson's edition, and have, occa- 
 sionally exainined Manng Tet Too's edition ct the Menu Woonana 
 Dhammathat^ The custom of the country is superior to the religious 
 law, but there are no authorities on doubtful points of customary 
 law, and t«fe tKinHft^ of jMiciai feidsitSfti's i« \;^ry i^em^r^able. 
 
 3. According to t'he Menu Kyay Dhamma'that (fek. 5, s. 24, p. 146, 
 of Richardson's 2ncl eciition) there are three ways of becoming man 
 and wife. In BDok 12, p. 336, they are thus defined :— " Amongst / 
 " men there are only three way's of becoming man and wife, which ^' 
 
 arc as follows : ist, a man and woman given in marriage by their 
 
 " parents, who liye an(l eat together ; 2nd, a man and woman brought 
 
 ■*' together by t'he intervention of a go-between, who live and eat to- 
 
 ' gether ; 3i-d, a man and woman who came together by mutual 
 
 *' consent, who live and eat together." 
 
 4. These distinctions ate ittiportalit with regard to the Void- 
 ability of the marriage and the riglits tef the children, the auratha 
 or eldest s6n of a couple given in marriage by their parents having 
 superior rights (Bk. 10, ss. IS, 3."^, .SO, and 53, pp. 276, 285, 292, 
 and 293) over other Sons boVn in m^rria^e, ^as wfell as over illegiti- 
 mate children who in the absence of legitimate offspring are entitled 
 to inherit (see the case at page 11 of Nr. Justice Sandford's Rulings 
 on Buddhist law). The' sentiment of the Dhammathat ,in favour of 
 the child born in the first kind of wedlqck is clearly displayed in the 
 cases of the snake-chiid, and the son of the slave girl (Bk. 10, ss. 39 
 and 73, pp. 287 and 307) 
 
 5. It is necessary t6 Remark that in the two passages defining 
 the second kind of mai'riage the w<kcl gd-between doe^ n6t occur as a 
 isoun ; the rneaning sfierns to ^e a marriage arranged or negotiated 
 by other than the parents, and perhaps, I may add, by other than 
 one parent or than the person whom Richardson calls indiscrimi- 
 nately the guardian or protector. The case at page 162 (Bk. 6, 
 s. 25) of a niaster giving a slave in, marriage at first sight se^ms to 
 come withiii the secon 1 definition. I am informed tiiat tlie negotiator 
 of inarriage Is a person known in the Burpiese society ; but if, after 
 his intervention, the parent^ consented and got the marriage 
 transacted, it would seem to fall within the first definition. 
 
( 2 ) 
 
 6. The third c]?iss would include the marriages of. persons eman- 
 cipated from parental control (Bk. 6, s. 28, p. 164J and those con- 
 tracted by consent after rape described in the same section, with 
 which compare Exodus 22, 16, and Deuteronomy 22, 28. 
 
 7. The parents and guardians have in a specified order a power 
 to give in mamage an unmarried maiden not exceeding 20 years of 
 age, and if they object, the ceremony or cohabitation with such a 
 maiden effected without their consent is invalid ta constitute a mar- 
 riage (Bk. 6, ss. 21, 22, 28, pp. 161 arid 166). " If a young man runs 
 " off with a daughter living under the protection of her parents and 
 " she shall return to them, refusing to live with him, he shall have no 
 '' right to claim her as his wife." " If when ordered to make compen- 
 " sation, he offer to live with her, he shall not retain her if she does 
 " not consent : let her be released from all obligation as his wife "■ 
 (Bk. 6, s. 22, p. 161). In s. 21 of Bk. 6 it is even said that the 
 parents may separate such a pair even if they have had ten children 
 the alleged reason for such a doubtful power beini? that the daughter 
 belongs to her parents. To many such cases, however, as we sh&ll. 
 presently see the doctrines of previous acquiescence and subsequent 
 ratification are applied so as to make the connection a valid man-iage. 
 
 8. For example, in a case stated in s. 22, p. 161 : " If a young 
 " woman runs off with a young man not approved rf by her parents, 
 " and having concealed herself for some time shall return to the village 
 " or neighbourhood in which her parents live and have two or three 
 " children, or live there five or ten years with the man, after the 
 
 ' parents have seen 'arid known (of her being there), they shall not^ 
 " have the power to cause the separation." Nor when the lever 
 serving in her parents' house on condition of manning the daughter 
 has connection with her with their knowledge, the case stated in 
 
 s. 20, p. 161. 
 
 f 9. The Dhammathat does, however, give the virgin whose age does 
 (not exceed 20 years a qualified power of renouncing the man to whom 
 'her parents or guardians have given her and of selecting a man of 
 her own choice. The age of 20 years is not altered by the Indian 
 Majority Act, IX of 1875. In Bk. 6, s. 15, p. 158, the following rule 
 applies to cases where consummation has not taken place : — 
 
 "if after betrothal and before consummation, there being no- 
 other man in the case, she not liking the man to whom she is- 
 betrothed, shall run off to her parents, let her be restored to the 
 person to whom she is betrothed three times. If she persists in 
 refusing to remain with him, let her parents keep all presents made 
 to them, &c." S. 16, p. 159, deals with cases of scandalous infidelity 
 of the bridegroom before consummation. In s. 19 will be found 
 a case of a girl being allowed by her parents free choice among; 
 several suitors. 
 
 10. As a maiden may show her persistent refusal of a bridegroon* 
 selected for her by running away from him three times, so she may 
 show her deliberate preference of a man by returning to him three 
 times, as in s. 23 of Bk. 6, p. l62 : " If a young woman shall be 
 " taken away from her parents with her own consent, let the young; 
 ' man restore her to them three times : as the young woman is 
 
<« 
 
 i '3 ) 
 
 '' consenting, it shall n&t be called theft." Again: "Incases where 
 a young woman has been returned three times, no action will lie 
 '^ against the young man or his parents. ■ Why is this ? Because the, 
 " owners of the daughter could riot control her." 
 
 11. It will afterwards be argued that this reason applies to other 
 cases of deliberate refusal or choice of a husband by a virgin not 
 exceeding 20 yeirs of age, and that the elopement thrice repeated is 
 merely evidence, symbolical or otherwise, of deliberate intention of 
 which a Court may satisfy itself by other evidence. This equitable 
 extension of this rule was not, however, adopted by the Special Court 
 in Civil Miscellaneous Appeal No. 3 of l878i decided on the 28th 
 September 1878, where the Judges ordered the female minor to be 
 restored to her grandmother, who objected to a cohabitation in which 
 consummation had taken place. There was prodf of persistent 
 intention on the part of the girl but not of the three elopements. 
 
 12. The person entitled to the control of minor virgins are spec- 
 fied in section 28. While the father is alive he alone can dispose of 
 her ; failing him, the mother ; and failing both parents, the brothers 
 and sisters. If there are no such near relations, other relations, have 
 apparently a similar right if the girl is actually under their care 
 and protection, viz., grandmother, grandfather, maternal aunts and 
 tincles, and paternal uncles and aunts. - The Governor or head of a 
 town is also mentioned as a protector The Dhammathat docs not 
 specify which of these more distant relations is entitled to priority of 
 guardianship ; but its meaning as expressed in section 28 appears to 
 be that the person actually taking care of the girl has a right to 
 ■control her marriage : and it might be argued that a guardian appoint- 
 ed by the Civil Court under Act XL of 1858 would have the .same 
 right as he is saddled with as much responsibility as the Governor or 
 head of a town. 
 
 ■"^\ 
 
 13. A widow or divorced woman is emancipated from all control) 
 of parents or guardians, as to marriage : " If a woman be ^ widow, 
 " or divorced from her husband, and she marry the man of her choice, 
 " parents, guardians, or relatives have no right to interfere to prevent 
 ■" it : let the woman who has already had a husband take the man of 
 " her choice. If she has never had a husband, she shall have no 
 " right to take one without the consent of her parents or guardians " 
 <Bk. 6, s. 30, page 168). 
 
 14. After these recitals from the Dhammathat we are in a position 
 to inquire what the essence of the marriage'contract is and whe ther 
 <;onsent of the parties is essential or otherwise. 
 
 15. The Dhammathat, besides dealing with distinctions between 
 greater and lesser wives and wives of different classes, regulates the 
 •relations with concubines and slaves as well as the inheritance of the 
 children of the latter (Bk. 6, ss. 40 to 43, page 288), and even punishes 
 a man for seducing the concubine of another (Bk. 6, s. 37, page 176). 
 The more one studies the parts of the book which deal with these 
 connections, and considers the general case with which the status 
 of marriage may be assumed, dissolved, and contracted again, the 
 more impressed one becomes with the difficulty of applying the 
 analogies of the long-settled law of England to theSe connections. 
 
 t 
 
( 4 ) 
 
 It may certainly be predicated that many of the contracts which in 
 dealing with the law of Burmese Buddhists we call marriage, and 
 treat as such in our Courts, are contracted with hardly any cere- 
 mony or formal evidence of the contract ; its proof in such cases 
 depends more on admission or on repute and conduct than on any- 
 thing else ; and the more one considers the Dhammathat the greater 
 
 ] becomes the difficulty of laying down any precise rulings as to what 
 fact is essential to constitute the status of marriage, when that status 
 
 v begins, and when the contract is complete. 
 
 16. In Richardson's Dhammathat the words faiza and temya are 
 sometimes translated as giving in marriage and sometimes as 
 betrothal ; and the words husband mnd vitfe are used where the 
 Burmese words leave it doubtful whether the young man or young 
 woman has entered on that status or not. Accordingly, for arriving 
 at any reasonable knowledge cf the meaning of the Burmese original 
 the translation must be examined word by word : even then there 
 may be doubts whether the Burmese ccrrectly expresses the meaning 
 of the original! Sanskrit lor Pali. Supposing, iho/ivever, the English 
 translation is made verbally correct, tl.en begins the duty of putting 
 a legal interpretation on the words ; and to do this the general scope 
 of the law and the nature of the society iii which it arose must be 
 constantly borne in mind. 
 
 17. The question is vvhether this giving, betrothing, or promising 
 of the maiden to a man, however we may translate it, does in itself 
 operate to produce the status of marriage, 1st, v/ithout further cere- 
 mony, and, 2iid, without the consent of the girl. The question may 
 arise any moment not only in disputes about property, but in. 
 criminal prosecutions for adultery and claims for maintenance. It 
 is remarkable that such important points should not yet have been 
 settled judicially : at any rate I connot find any rulings on the sub- 
 ject in any of the superior Courts either as to the law of the Dhamma- 
 that, or as to the established custom of the people which overrules 
 the Dhammathat. 
 
 18. As regards the Dhammathat, I do not find in the definitions of 
 the three kinds of marriages or elsewhere any requirement that a 
 ceremony should take place : although certain acts rather than 
 ceremonies are here and there spcken of, e-g.i the receipt of clothes, 
 the vow with the hands in water (Bk. 6, s 28, p. 166), or the setting 
 up of a house, which Richardson sometimes translates as marrying. 
 These acts, as well as other acts of endowment or cohabitation, may 
 well be evidence relevant to the question whether the status of 
 marriage has been acquired ; but I am not aware of any passage in 
 the Dhammathat mentioning any ceremony as essential ; and any 
 such precision would, in my opinion, be contrary to the view of sexual 
 relations apparent throughout the book. 
 
 19. As already observed, I know of no binding judicial decision 
 to the effect Hiat any ceremony is requisite by established custom of 
 the present day. 
 
 20. On the point whether the "consent of the minor girl is essen- 
 tial I believe that a decision in the afifirmalive would alone acconi 
 with the manners and customs of Burman Buddhists at the present 
 
 s 
 
 ! 
 
( 5 ) 
 
 time, as it is notomous that yourg women do exercise a choice and- 
 marry the man they prefer. As already pointed out, the Dhammathat, 
 while putting forth as a principle that the girl belongs to her parents, 
 does, as a matter of practice, give authority to the girl to defeat 
 the intention of her pareni or guardian by running away three times 
 from the man to whom he has given her. She has the same authori- 
 ty to marry the man of her own chc ice if she elopes with him 
 three times. She has a third way expressly provi ded for her of 
 asserting her own over her parent's will by waiting till she is 20 
 years old. 
 
 21. I would hazard en opinion that the procedure by elopment 
 may, in the old society, have been the best way of allowing the girl 
 to exhibit a deliberate choice, there being no general use of Coun or 
 writing and less reward for chastity than now. It is important, too, 
 to notice that such choice was allowed in an age when many of the 
 w ives were really owned, i.e., were slaves. It is difficult to control 
 'stich a procedure in the present times ; but if the Courts shut up the 
 relief by elopment, they must either allow seme other means of 
 expressing deliberate intention, or leave the girl in a worse position 
 than girls enj.oyed in a- more barbarous age. 
 
 22. If it be held that the girl's consent is not essential, then, no 
 ceremony nor registration being required we must hold that the mar- 
 riage is com|)lete, and that the status of wife begins when the parent 
 or lawful guardian gives the girl to the man. We deprive her of the 
 right of volition before the marriage and allow it to her after. It 
 might fairly be argued that such interference wiih personal liberty 
 and such degradation of the notion of marriige are incrnsistent 
 with equity on the one hand and public policy on the other. If the 
 parent or suitor used force or deceit to lead the girl to the suitor's 
 house, he might apparently be convicted under section 366 of the 
 Penal Code, and the girl would have a right to resist him in her pri- 
 vate defence ag.iinst the abduction. We cannot apply the principle or 
 the practice of the Dhammathat to the changed society without modi- 
 fications ; and in the moulding of the law it is of great public import- 
 ance that the Judges should modify, the old rules in the line of pre- 
 sent customs and opinions rather than that of a bye-gone day. 
 
 23. After such consideration as I have been able to give to the 
 subject, I am inclined to thmk that consent of both parties is essen- 
 tial to the contract of marriage and that no ceremony is essential 
 either by the Dhammathat or by established custom. But that 
 the public banquet or the joining of hands may be some evidence of 
 the consent, although that sort of evidence may be overruled by proof 
 that there was no consent nor acquiescence, as for example, by show- 
 ing that immediately afterwards the girl repudiated by quitting the 
 mnn. Doubtless the laws which dispense with ceremony and regis- 
 tration leave the door open for uncertainty, mistake, and fraud ; 
 but in- this respect other civilized nations have to encounter the 
 same evils, and the only remedy is by legislation. On these grounds 
 I would subrnit for discussion th.it consent is the essence of the 
 contract, and that it may be proved to have befn given by the 
 usual sort of evidence, viz., of express consent or acquiescence or 
 
. ( 6 ) 
 
 repute and conduct. Moreover, as Mr. Mayne p6ints out in- bis 
 instructive commentary to section 494 of the Penal Cede, tlie 
 marriage may be established by preponderating repute and 
 conduct even though the repute is divided. ' Every fair pre- 
 " sumption will be made in favour of the marriage where both 
 "the parties have bond fide believed themselves to be 
 murried." Mr. Mayne cites the following instance : — " Where 
 it appeared that the parties had lived together for five 
 years in Virginia and had been recei\^d in society as man and 
 wife, and that by the law in force in Virgini i at the time the cohabita- 
 tion began no religious ceremony was necessary to the validity of the 
 marriage, nor was any registry of marriages required to be kept, 
 it was held that this constituted sufScient evidence of a marriage." 
 
 24. The foregoing principles will help up to say whether, in the 
 following cases, the status of husband and wife has or has not 
 occurred : — 
 
 (a) When before consummation the maiden breaks the engage- 
 ment by persistent refusal or by intercourse with 
 another man (Bk. 6, s. 15, p. 158). 
 (6) When before consummation or living together the man 
 repudiates the engagement (s. 15). 
 
 (c) When before consummation the man commits scandalous 
 
 acts of infidelity and the woman repudiates (s. 16). 
 
 (d) When before consummation or living together the man 
 
 discovers that the woman is a leper, deformed, dumb- 
 imbecile, deaf, mad, or a fool, and repudiates her (s.l8). 
 
 25. In these four cases, as they are stated in the Dhammathat, the 
 parents have given or promised to give the girl." But in the twc 
 first one of the young people refuses consent before :iught else has 
 happened ; and in the other two also the consent is 'withdrawn before 
 they have bad time to show by repute and conduct that they are man 
 and wife. The ambiguous word giving occurs in these sections ; 
 
 " but as Mr. Gillbanks has noticed in discussing the subject, this 
 \ giving took place in cases of concubines as well as wives ; and both 
 ' wives and unmarried girls were sometimes given in expectation of 
 a return (Bk. 6, s. 30, p. 169, and Bk. 8, s. 3, p. 238). Compare this 
 custom with the lower form of marriage called "Usus" in ancient 
 Rome described by Sir Sumner Mayne (Ancient Law, p. 155) as ori- 
 ginally amounting in law to little more than a temporary deposit of 
 the woman by her family; and co-existent with the higher forms of 
 marriage under which the woman passed from the power of her 
 father into that of her husband. 
 
 26. Polygamy is allowed by the Dhammathat as well as by 
 established custom of Buddhists in British Bnrma. This point was 
 
 settled by the Special Court in Civil Refer- 
 
 ladidalCommiss^one^s ^""^^ ^°- ^ °^ ^^^°'* " M^'' ^"8 Than vs. 
 Circular Memorandum Maung Tsan Hla," the leading case. The 
 No. 8 of 1881 ruling was as follows :— At Buddhist law, 
 
 „ where no special custom exists, a husband who, 
 
 ^^ in the lifetime of his first wife, married a second wife, without the 
 first wife's consent, does not thereby commit a fault against the 
 ' first wife;"; 
 
{ 7 ) 
 
 . 21, This ruling only applies to communities where there is nd 
 special cuiiom forbidding polygamy, and does not apply to chris- 
 tians and Parsees, to whom polygamy is fcrbidden by law. With 
 regard to the law applicable to Chinese people living in British 
 Burma, see the judgment of the Judicial Commissioner in Civil Appeal 
 No. 4 of 1881 in the. Special Court, published in Judicial Commis- 
 sioner's Circular Memorandum No. 12 of 1881. 
 
 28. The Dhammathat, in Book 5, page 135, and more fully in Book 
 12, page 335, describes the wives of different kinds, and discusses their 
 rights and duties. It is unnecessary to do more than refer to these 
 books as the following passage in my judgment in* Mah Ing Than's 
 case shows that many things customary in the age when the Dhamma- 
 that was written are neither customary nor legal now in British 
 Burma : — 
 
 '■' The Dhammathat continually recognizes the custom of polygamy, 
 and assumes the existence of a" society in which it is so coniniori- as 
 to require definite regulation. The society displayed in this book is 
 arclianic and peculiar, and many of its circumstances seem to rpsem- 
 ble, those of the nation for whom the Mosaic law was framed, ^ere 
 was not only plurality of wives, but concubinage, also existed,,! slaves 
 were taken in war and /or the payment of debts; there-is also prp- 
 visipn for a wife purchasing a husband as well gs.for a husband pur- 
 chasing a wife,. When a husband went away .on some trading, voyage, 
 the wife sometimes marries, some one else ; facUe rules .are laid down 
 for both civorce and reclamation. The seizure of wives at the sack 
 of towns and when hiding-'from the enemy in the jungle is also con- 
 templated : men grew enamoured of their slave girls, and sometimes 
 wives were given them by the king." 
 
 29. The marriage may easily be dissolved by the Burmese custom 
 and contracted again writh great facility. It is thus of great import- 
 ance; that all the (Courts should understand the law which treats 
 sciTlfe kinds df cohabitation as marriage and others as mere concu- 
 binage. Hence the Superior Courts make some inquiry into the 
 fact of the marriage where they have to determine cases of adultery 
 and kindred otfences under Chapter 20 of the Penal Cdde. In a case 
 of adultery tried by the Judicial Commissidrer it was ascertained 
 that the woman had been divorced by the coimplainant a few days 
 before the sexual act with whicb the accused was charged; and 
 though the complainant and the woman re-married, a few days after 
 the divorce, it was held tliat during the days she remained divorced she 
 was not the wife of complainant, and thus the charge fell to the 
 grdund. 
 
 • 30. On the-subject of prohibited J.egrees aiid the void or voidable 
 character oi particular- connections I find nothing in the Dhammathat, 
 and believe that there is as yet no judge-made law. •' Major 'Sparks 
 gives a list of prohibited degrees in his C( de of Burmese .la^" and 
 makes the following statements, but without indicating any._aut|i.ority 
 for them : 
 
 .. " The degrees of ooinsangsjinity and alifinity are the same as under 
 " the English Canon Law, -except in the case of wifi&'s sister and a 
 " brptherls widowv marriage Jviih whom is penpiiited by. Burmese law. 
 
( 8 ) 
 
 " A man may even marry his wife's sister during the lifetime of his 
 " wife, but such marriages as well as marriages with a brother's widow 
 " at any time, though not illegal, are opposed to public opinion and 
 " not considered respectable ; marriige with a deceased wife's sister is 
 considered, on the contrary, a most natural and becoming union." 
 I imagine that an issue as to whether any particular dlliance ^^'as 
 lawful, voidable, or void from the beginning would have to be deter- 
 mined on evidence about existing custom, as sliown in particular 
 instances known to the witnesses and ' not on mere expressions of 
 unlearned opinion. 
 
 31. Where, a particular connection is only voidable, not void, it 
 would be held to be marriage until set aside as in the case of mar- 
 riage with a deceased wife's sister contracted by East Indians domi- 
 ciled in India, to whom certain statutes expressly rendering such 
 marriages void do not, in Mr. Mayne's opinion, apply. Such a mar- 
 riage he says, is good until set aside, and cannot be questioned 
 after the death of either of parties to it. 
 
 32. At pp. 139. 140. 174, and 253 of Richardson's Dhammathat 
 occur rules for determining cases f f a woman mnrrying again during 
 a prolonged absence of her first husband, and of a . m|rL^t?iking as 
 wife a 'womfha w;b9 ajrearfy^SratSa^iviHgi'hdstfiJ^ "S'licSf 'cases may 
 well be left for iuture judicial decision ; but the Burmese law on the 
 subject should not be overlooked in the decision rf cases among Bur- 
 mans under s. 494 and similar sections of the Penal Code. 
 
 33. The present uncertain stale of the law leads to unhappiness and 
 quarrelling in many Burman households, as the parties themselves 
 often dispute about status, the man saying the woman is his wife, 
 the woman denying it. I tnay conclude this elementary discussirn 
 of this intricate subject by referring to the case Empress v. Pit- 
 ambar Singh (5 Indian Law Repons, Calcutta, p. 566). The ques- 
 tion referred to a Full Bench was whether, in a case of adultery, 
 the Cjurt was justified in accepting as proof of the niairiage the 
 mere statement of the prrsecutcr, '"she is n.y wife by marriage," 
 and that of the woman, " I am married to the prcsecutor." The 
 refen-ing Judges remarked : " We cannot see that any inconvenience 
 
 ' is likely to follow from our]adopting the stricter rule. Amongst the 
 •'large majority of the people of this country mirriage is accom- 
 panied with so much of ceiwmoniil and publicity that there can 
 "rarely be any difficulty in proving it. If there be any class of the 
 'I community with whom it is otherwise, whose marriages, notions, 
 " and practices are so lax as to render many marriages of doubtful 
 '] validity, this rseeins Jo us additioi4akrea«0iH,ifots r«^^«illft ihe*. ae.*«aL> 
 facts to be brought properly before the Court, so that it may defer- 
 '' mine the validity or invalidity of the marriage in each case that 
 comes before it." 
 
 The judgment of the Full Bench was delivered by Chief Justice 
 Garth : — 
 
 " We think thit in this case the evidence was not safficient to jus- 
 tify a conviction for adultery. The marriage' of the woman in as 
 I' essential an element of the crime charged as the fact of the illicit 
 intercourse and the provisions of the Evidence Act (s. 50) seem to 
 
( 9 ) 
 
 " point out very plainly that where the mai-riagc is an ingredient in the 
 
 " offence as in bigamy, adultery, and the enticement of married women 
 
 the fact of the marriage must be strictly proved in the regular way." 
 
 Otherwise there is a danger of confounding marriage with concu* 
 binage and giving the paramour the same privileges as the husband. 
 
 34. It has been customary in British Burma for unchaste women 
 to sue the paramour for damages, even when there is no allegation of 
 breach of promise of marriage. Such an action does not relate to 
 marriagei and the law of the Dhamniathat which allowed it has not 
 been preserved to the Buddhists as law ; and therefore the general 
 principle which bars such actions on the ground of public morality 
 would apply. 
 
 35. In a recent appeal, however, it was held by the Judicial Com" 
 missioner that a woman who has been injured by breach of promis^ 
 of maiTiage may sue for reasonable damages. In considering whether 
 the man has rendered himself unable to perform his promise the 
 Courts must not forget that polygamy is lawful. 
 
 Rangoon : 
 The 17th July 1S82. 
 
IN THE COURT OF THE JUDICIAL 
 COMMISSIONER, BRITISH BURMA 
 
 Circular Memorandum No. 30 of 1882. 
 [NOT TRANSLATED.] 
 
 Dated Rangoon, the 2htjuly 1S82. 
 
 The Judicial Commissioner herewith distributes a 
 second note on Buddhist law dealing with the incidents ol 
 marriage. With a view of aiding the Subordinate Courts, 
 an endeavour has been made to introduce, by quotation or 
 reference, every sectiron of the Dhammathat relating to the 
 subject, as well as to incorporate such judicial interpretations 
 as have been found. The latter are few and meagre, and 
 some of the rulings quote no authorities ; thus the 
 commentator has to state and discuss the ambiguous rules 
 of the Dhammathat without that assistance from exhaustive 
 and fully considered judgments which is received by 
 commentators on Hindu or Mahomedan law. The present 
 notes are believed to be the first of their kind ; and in the 
 present state of the law, and especially where decisions of 
 the Superior Courts are criticized, the opinions expressed 
 have no higher value than those of other commentators. 
 But it is hoped that other opinions may be elicited and that 
 the social problems which conceal themselves under the 
 rulings of the Judges may in tliis manner be brought into 
 the light of day. 
 
 JOHN JARDINE, 
 Judicial Commissioner, Biiiish Burma. 
 
NOTES ON BUDDHIST LAW. 
 
 MARRIAGE— ITS INCIDENTS. 
 
 By John Jardine, Esq., Bo.C.S., Judicial Commissonisr of Bntish Burma, 
 
 36. In the case of " Mating Ko »s. Ma Shway Get and others" 
 (page IS of Mr. Justice Sandford's rulings) the learned Judges of the 
 Special Coui-t lay dc \vn the following p.-orosition : — " ll is quite 
 certain that the Burmese law recognizes the husband as the lord of his 
 household." The conjugal subordination of the wife may be inferred 
 from the account of marriage duties in the 5th Book of the Dhammi- 
 that, pages 135 and 144, and in Book 12, p.ige 334. For certain 
 improprieties he may correct her (Boc k 12. section 42, page 354), but 
 in a mild manner only s laid down in section 47, page 360. This 
 
 ,l^w,,>yasjX^Q6Bizea,iir*the,ea9ej^^^^^^^^^ Mauftg.. Nyesif'' bj the 
 
 ptersent Ieai*ned Kecdrder of Rangoon, who remarks that the Burmese 
 law permits a husband to chastise his wife as a father miy chiistise 
 his child, as it is laid down that the husband is the lord of the wife, 
 and therelore mere ebullitions of temper are not to be regirded as 
 causes for divorce. 
 
 37. With respect to the management and acquisition of property 
 the Buddhist law, while distinctly recognizing ihe status, treats the 
 husband and wife as if they were partners in the profits, unless per- 
 haps the woman lives an.l has an establishment separate Irom her 
 husband and takes no share either in t'le management of his busi- 
 ness or dn his household affairs. 'Where she in fact performs the 
 duties of a wife no further than by receiving his visits, although she 
 may be a wife under present Burman customs, she is not a wife, who 
 under tne law of the Menu Dhimmathat would be entitled to hold 
 the property acquired durmg the so-called marriage as joint pro- 
 perty " fer Sandford, J., at page 25 of his rulings). The passages 
 at pages 3-14 and .i47 in the 3rd and 31st sections rf the I2ih Book 
 are quoted as the authority for this ruling, which, as I shall presently 
 try to show, is open to question. 
 
 38. For the purposes of marriage, divorce, and inheritance, the 
 propetty of the married persons is considered as separate Hhinthee) 
 or iQiniihti^Pasane). Tl^e., words, , jSfl^j{,.~^a^^^ qrigifiaUi:psim§^ing, 
 and letelpwa^ meaning olflained since mdrriag,f, -ire, according to 
 Sparks, indiscriminately iised instead of thinihee and hnafazone. 
 
 39. Major Sparks definfcs the following property as thinihee or 
 sepai-ate property of the husband and wife : — 
 
 ( i) what belonged to either Sefore marriage ; 
 (ii) what has been given specially to either since marriage ; 
 (iii) what has come into the possession of either by inherit- 
 ance from his or her own family since marriage, 
 (iv) clothes, jewels, and ornaments. 
 
( 2 ) 
 
 Major Sparks also quotes Bock 6, section 43, pajie 181, as sliowing 
 that nieilier party has any power whatever over the separate pro- 
 perty of the other. The separate chai-acter of the first class is dis- 
 tinctly inferrible from Book 12, section 3 and so is tha of the second 
 class if given by the king. The judgments at page 14 of Sandford's 
 Rulings and in circular memorandum No. 25 of the 11th July 1882 
 affirm that, for purposes of inheritance at least, property which either 
 husband or wife has inherited from his or her own f mily during the 
 marriage is thinthce ov separate. In my judgment in the latter case 
 occurs the following : — 
 
 " The counsel for appellant argues that the property in suit, does 
 not come wiihin the definition of property jointly acquired during 
 marriage, as such a ruling would he inconsistent with the rule of 
 partition at page 273, section 8, of Richardsrn's Dhnmmathat. That 
 rule draws a distinction between property inherited by a wife from 
 her parents during coverture and property otherwise acquired. Of 
 the inherited acquisition -the wife's son by a former marriage is to 
 get half, and the husband's right of succe^M' n is limited to the other 
 half-, whereas out of the other acquisition the step-son is to have 
 only one-sixth- Mr. Sen wishes me to/fbllbw Mr. Justice Sandford's 
 example and apply analogy so as to make the rule at page 273 appli- 
 cable to the present case. 
 
 My opinion as to the application of the definition in page 344 tp 
 the persent case is as follows ':^The definition of jointly acqiirecl 
 property in that section is not made for the purpote of the law of 
 inheritance, it app:;ars to me to relate only to the law of divorce and 
 partition following i ivorce. The rules about partition and inherit- 
 ance on the death of relation mike frequent and plain distinctions 
 between ordinary joint acquisitions made by skill, science, thrift or 
 trade, and the succession of the husband or wife to his or her rela- 
 tion's property. I instance, section 6, at pige 272, section 8, ai page 
 273, mentioned by Mr. Sen, sections 15 and 16, at pige 276, as t© 
 children surviving parents which parent* have not received a share, 
 section 38, at page .86, where the ancestral prrperty inherited by a 
 husband is expressly s.iid to be his and thus liable to equal disposal 
 among wives, and section 66, where the distinction is most plainly 
 drawn. 1 hold therefore that the property in the present suit is 
 not acg«i' erf : property within the meaning of section 10, on which 
 Mr. Sandford's judgment is based, and that the two cases are quite 
 distinct." 
 
 The property was inherited during coverture frcm. the husband's 
 relation, and was held to bp the hisb^nd's separjile acquisition. 
 
 40. The c.hi nee child is excluded by section 81 of Book lO, page 
 319, froni property soMfevoIving. The subject of separate property 
 of inarriefl reople-is r'-iscussed in Book IQ, to which, with. It-he. Jfbove 
 jud<jments, I refer the reader. ■ 
 
 41. Tinthce in. relation to married persons among, themselves 
 must not be. confounded .with thinlhce as regards pai-ents ; the 
 word is used also to imply separation of interests between parents 
 and children and between other relations. In section 81 of Book 10, 
 
{ 3 ) 
 
 piige 315, the twelve kinds of thinthce or sep irate property of 
 children are described ; and iu sections 22, 2.i, and 24 of Book 10 
 page 278) the cases of grown up children who leave thefaiher's 
 houie and set up a sepirate abode, taking with tliem some of the 
 property without it being specially given to them, ari determined I 
 mention these important cases because in the prevailing igiiorance of 
 Buddhist law suits are often brought to oust people in long possession 
 on the mere allegation that there was no partition, and in apparent 
 ignorance of this part of the law and its interpretation in the case 
 reported at page .33 of Sandford's Rulings. 
 
 42, The principle of Buddhist law, that husband and wife inherit 
 from each other (Book 10, section 38, page 287), though easily appli- 
 ed vvhen a wife dies without issue, is modified as we have seen when 
 there are several wives and families, as in the case at section 66, 
 page 301. As remarked in the judgment from which I have quoted 
 in paragraph 39 : — " Two principles must be borne in mind in ad- 
 '' judicating the case according to the spirit of the Buddhist law. The 
 " wife is entitled lo some share becausej wtiile she lives with her hus- 
 " band she has a joint interest in all the hnusehold concerns, and 
 " although the property may have descended from the husband's 
 " ancestor it might be wasted or become profitless if the wife did not 
 " do her share in taking care of it. But at the same time the 
 " surviving husband or wife is jealously excluded from complete 
 '■ appropriation of what property came direct to one or other from 
 " his or her own family ; such property is not to be diverted in its 
 " entirety from the whole blood to the half blood, or to the 
 " step-parent's own family who are not even blood relations." 
 
 43. The profits or interest arising since marriage from the 
 employment or investment of the ihinlhee, or separate property of 
 either husband or wife, as also the property acquired during the 
 coverture by their mutual skill and industry are their hnaj>azone, or 
 joint property. These propositions of Major Sparks' Code are sup- 
 ported in his opinion by the real meaning in the third section of 
 the 12th Book, which section, he says, is incorrectly translated by 
 Richardson. Sandford, J., in the judgment at page 24 of his rul- 
 ings, to which I have already referred, appears to accept these pro- 
 positions, but excludes from the category of joint property what 
 was acquired by the husband by his own exertions when the wife 
 lived separate and took no share in the management of the business 
 or the household. "The idea of the joint property of the husband 
 " and wife must have arisen from the fact of the husband and wife 
 "living together and managing their concerns together. The wife 
 "takes, among Burmans, often a more active part in business than the 
 " husband ; and even where the profits arise ffom his separate property, 
 " or from the separate business or trade of the husband, the wife would 
 " be in charge of the property, or she would be managing the domes- 
 " tic affairs of the husband and administering to his domestic com- 
 " fort, and so giving him leisure to attend to his out-of-dror business 
 "and' enabling him to perform it more efficiently. But where the 
 *' parties live apart, where the wife merely receives the visits of her 
 
( 4 ) 
 
 " husband, she contributes nothing to the acquisition of the property 
 " or to the domestic economy- She has received a money payment 
 " and a maintenance in return for her favours, and the pi'iriciple 
 " whereon the idea of joint property, as I imagine, rests fails to apply. " 
 Again, " although she may be a wife under present Burmese customs, 
 " she is not a wife who under the law of the Menu Dhammathat, would 
 " be entitled to hold the property acquired during the so-called mar- 
 " riage as joint property." 
 
 44. It will be ot served thnt in the judgment the learned Judge 
 made an exception to the general rule of the Dhammathat which had 
 been accepted in an earlier case at page 10 of the rulings, and that no 
 authority for the exception is quoted from the Dhammathnt, but tl,e 
 reasons for making it are derived from the present circumstances of 
 Burmese society. Doubt is thrown on the status of the woman, but 
 at the hame time the contract is treated as a marriage, the suit being 
 one for property after a divorce. 
 
 45. In the later case of " Ma Ma vs. Moung Ngyoon " (Civil Suit 
 No. 173 of 1877' the Recorder remarks: — " As regards the Burmese 
 " law of divorce, so far as it is to be ascertained from the scattered and 
 *' oftentimes obscure and contradictory texts in the Dhammathat 
 " translated by Richardson, I think it may be taken as settled law 
 " among Burmans that property acquired either by means of separate 
 " property brought by each at the time of marriage or acquired by 
 " the joint, exertions of husband and wife during marriage belongs 
 '' equally to the husband and wife. * * I come to the conclusion 
 " that pre perty now in the defendant's possession was acquired by 
 " his own separate capital and without any assistance from the plain- 
 " tiff. But this in itself will not deprive the plaintiff from sharing 
 '' in the property acquired by investment of the separate property of 
 "the husband, for according to the Dhammathat the wife and hus- 
 " band have a joint interest therein, and the wife is entitled to tier 
 "share on divorce, pn vided she has a just cause for seeking a 
 " divorce." This ruling appears to me only to establish the general 
 rule in terms identical with Mjor Spa ks' statement thereof, but not 
 to touch the excLption ma-'e by Mr. 8 mdford, and of which no men- 
 tion is made by Major Sparks. In another case however, suit No. 26 
 of 1880, where the husband lived separately at Mandalay, and by his 
 own exertions rnade profit as a goldsmith, the Recorder remarks that 
 the defendant " being a goldsmith, his skill and labour would fall 
 
 under self -acquired property in which the wife, does not participate." 
 The suit was for divorce and division of property, but the Recorder did 
 not intend to decide the point as h^lvad other reasons for the decision. 
 We may infer that question is soitiew'hal difiRcult from the difficulty 
 which attended a like question under the Hindu law in the cases at 
 page 56 of 2 Madras High Court Reports and page 1 of 6 Bombay 
 High Court Reports, A. C. J. I will return to it afterwards. 
 
 46. As regards joint property, the following propositions were 
 
 expressly decided by the Special Court in the case reported at page 
 
 1^5 of Sandford's Rulings :— " The 43rd paragraph of the 6th Book 
 
 ' treats of the power of the husband and wife over the joint property 
 
( s ) 
 
 " and the conclusion to be derived therefrom is that they each have a 
 " certain power over this property, i.e., each may lend it, but neither 
 ^^ may permanently alienate it. It is difficult to reconcile this rule 
 ' with the doctrine laid down in the 8th volume as to the power of ilie 
 "^ husband to make gifts, but «ither passage is equally conclusive 
 " against the claim of a wife to possession of the joint property in 
 " opposition to the husband. * * Of joint property we cannot say 
 " that the p irties or either of them are entitled to its exclusive posses- 
 "sion * * So long as the marriage subsists the Court cannot 
 " decree an absolute dominion over it to either husband or wife. But 
 " we think that on the doctrine laid down above, as quoted from the 
 'I 8th volume, viz., tha.i the husband is lord of his wife he is entitled 
 ' to the possession of it in trusc for both rather than the wife." 
 
 47. It would seem, then, that in executing the warrant of a 
 criminal court for levy of a fine, the distinctions of the Buddhist 
 law, especially as declared by the superior Courts, must be carefully 
 borne in mind, as section 307 of the Criminal Procedure Code only 
 authorizes the distress and sale of "any moveable property belong- 
 ing to the offender" and it would be adding injury to insult if, on 
 sentence of fine for adultery or rape, the property of the innocent and 
 wronged wife were seized and sold as well as that of the guilty 
 husband. We must revert to this subject in dealing with the liability 
 of husband or wife for each other's debt, and the decisions about a 
 Buddhist's ownership ceas ng on his death, important matters under 
 section 70 of the Penal Code and under those parts of the Civil Pro- 
 cedure Code which relate to attachments and sales. 
 
 48. But to return to the exception made by Mr. Justice Sandford. 
 It is evident that in discussing the elaborate sepn-ation of rights made 
 between husband and wife in the Dhammathat, and in dealing with 
 a state of things under which the husband has become a trustee, and 
 where a married woman has wonderful facilities for terminalii g the 
 marriage whenever she so desires, we h ve got among ideas and 
 practices very dissimilar to those of the Patria Potestas, under which 
 it was for the parents to settle the marriages of their children. 
 Leirned inquiry may some day discover how it came about that the 
 liberty denied to the virgin was conceded in so full a measure to the 
 married woman along with an equality unkown to the Hindu law. 
 
 49. Whether the woman to whom the exLeptional rule was applied 
 was a wife or not is, as we have seen, doubted by Mr. Justice Sandford. 
 So far as I know no formal decision on this matter of customary law has 
 been given, though I am informed th^t the custom of wives living quite 
 separate from the husband is not uncommon. I confine my remarks 
 to the Dhammathat. In the two descriptions of the seven kinds of 
 wives it is assumed that the wife lives with her husband and 
 cherishes and comforts him. Elsewhere, in discussing polygamous 
 marriages, stress ilso is laid on the eating out of the same dish, but 
 more as proof of tlie status of wife (compare sections 33 and 35 of 
 Book 12, pages 348 and 349, and see pages 93, 141, and 289). Poly- 
 gamy, as we have seen in a former note, is recognized as common : 
 the case is stated at pages 94 and 286 of wives living in separate 
 
( 6 ) 
 
 houses, even in separate villages. "'They are called greater or lesser 
 " wives according to the priority of the marriage, hut it is Only a 
 " name." It is vain to pretend, to any knowledge of the ancient 
 customs as the indications of the Dhammalhat are uncertain and 
 few. But seemingly one way of distinguishing the wives from the 
 five slave concubines and the free concubine, described at page 288, 
 was by the social equality implied in eating out of the same dish as 
 the husband, and the person of higher rank, whether man or woman, 
 could raise his or her slave paramour to a status aipproaching that 
 of marriage by admitting to such like familiarity. 
 
 50. So I would be inclined to hold that there is, nothing in the 
 mere fact ot separate establishment to prevent a womin. from being 
 a wife. If the status is disputed, it must be proved in one of the 
 usual ways. The Courts would have to infer from the acts proved and 
 the acknowledgments and repute whethe'- the parties had consented 
 to a marriage or to concubinage or only a trading partnership. For a 
 precedent I refer to the Recorder's judgment in Civil Suit 10 of 1881. 
 Where there has been no ceremony nor document, it may easily happen 
 that the parties had different intentions : and in charges of adultery 
 it may also happen that the accused had no reason to suppose the 
 woman living sepa.-ately to "be a wife, especially if, as is not uncom- 
 mon, she had several times broken the marriage and become a single 
 woman and then remarried the same husband. 
 
 51. From this examina'ion of the Dhammathat I woraid be of 
 opinion that Mee Soung, the plaintiff in the exceptional case, was 
 rightly treated as a wife, there being no allegation against her except 
 that she lived in a separate house. She was divorced from her 
 husband against her will and without any fault in her part, and 
 under the ordinary rule she is entitled to the joint property acquired 
 during marriage. I must confess I have doubts whether the Dham- 
 mathat gives any sanction to the doctrine that the husband divorcing 
 a faultless wife against her will may retain any part of the acquisi- 
 tions made during the coverture on the plea that they lived separately 
 and that the wife took no part in the business or the household, or 
 may exclude her from any share in what he acquired by his profes- 
 sional skill. 
 
 52. It is certain that in many respects the Dhammathat deals with 
 the property of the man-ied people and of several wives among them- 
 selves and with debts incurred without the husband's knowledge on 
 principles like those of commercial partnership. " Property acquired 
 " equally by both, or where both had an equal share in the capital 
 "shall be divided equally " (Book. 12, section 3). There is, however,, 
 no allusion to capital in the original, and the meaning is only that 
 property acquired by joint exertions shall be divided between them. 
 But at the same time the Dhammathat never ceases to recognize the 
 status of marriage and the mutual duties of husband and wife. 
 
 53. In BookS, sections 14 to 17, we have the case of a husband who 
 goes away to a far country in pursuit of wealth of learning. He 
 must send her a letter every three years ; when he comes back he must 
 pay her debts ; she cannot take another husband, until eight years 
 
( 7 ) 
 
 are. passed, not even if in his. new settlement he marry anotler 
 
 TerTl-r-'''/' '^fu'^"^' "'"^ ^^ ^1^°^^'^ his intentionYo alardon 
 ^^'h '^^f^'gt"'^"^ her the means of living; any one seducing her 
 r^pSan f '"^^ ^^- P^'^^^d" A . similar rule is applied to sol- 
 S^nrllfnri^TPr'^S-,.'^" this subject see the cases at pages 
 Suit"o 6f 188?" ' ^ ^"'^ *^^ Recorder's judgment in Civil 
 
 54. But in section 17 the quesiion of separate living is considered 
 uncomplicated by distance; and there, what is discussed is a com- 
 plete abandonment, the intention being shown either in words or by 
 conduct. I quote the whole section : — 
 
 ' The law when a husband and wife having no affection for each other 
 separate. Any husband and wife living together if fhe husband, saying he 
 uu "°: ^ ^^^ ^°^ ^ ™'^^' *^3" ^^"^ l«=ft 'l>e house and for three years 
 snail not have given her one leaf of vegetables or one stick of firewood, at 
 the expiration of three years let each have the right to take another' wife and 
 nusband. If the wife, not having affection for the husband, shall leave (the 
 npuse) where they were living together, and if during one year he does not 
 ^■"L I .°,"? '^^' °^ vegetables or one stick of firewood let each have the 
 right of taking another husband and wife. ; they shall not claim each other 
 as husband and wife, let them have the right to separate, and marry again. 
 If when the husband leaves the house the wife shall take another within the 
 three years, or when the wife has left the house and within one year the 
 husband shall take another wife, of the prcfeily of both what was brought 
 at marriage, and that- which belongs to both, having counted; one, two, 
 and weighed by ticals, let- all the property be demanded and taken from the per- 
 son who failed in his or her duty as husband or wife by the other who has 
 become the lord of it ; and if (the' person in fai It) comes to the hoise of the 
 other (the person not in fault) may turn (the otherl out, but not accuse 
 (each other) of taking a paramour or seducing husband 6r wife. Thus the 
 son of the King of Bymal o called Menu, said: 'If a hu^band vyho has a 
 wife becomes a rahan, she must wait seven days : if after seven days the 
 rahan shall return to the world, he shall not claim her as his wife ; Itt the 
 wife have a right to tal(;v: a husband . " | 
 
 55. In the cases dealt wiih in this section the ordinary rules 
 about division of properly on divorce can be applied to a mutual 
 separation whether with or without fault. But it is not hii.ted here 
 or anywhere else that a woman is at fault merely because she lived 
 
 ■separately from her husband. 
 
 The separate living may be a matter of mutual convenience, as. 
 e.g., where there is limited accommbcation in the houte. or where 
 the husband wishes to set up a shop in a distant town, but not to 
 take his wife there. A policeman on the frontier or a station-master 
 or telegai-ph hignal'er on a railway may find it impossible to take 
 his wife about with him, but it seems inconsistent with the contract 
 of marriage to hold that the wife is not entitled to share in the pro- 
 ceeds of his labour and skill. It often haptens that a man takes a 
 second wife and prefers that his first wife ihoiild live by herself, 
 perhaps in her own house, so as to avoid domestic broils. 
 
 56. If then her separate living is. by his license or desire or for 
 joint convenience, there would seem to be no reason in equity why it 
 should deprive her of any advantage belonging to the status of wife. 
 If she has by living separately .committed any fault, this should be 
 alleged and proved by the husband as in any other suit for divorce 
 
( 8 ) 
 
 or coiisequ'ent division of property. TTie wife ihky theti be able to 
 show justiiica'tioh, viz., repeated misbehavidur, imfrioralitjr, cTr other 
 of the reasons seggesle"d in section 18, page 142, or at page 343, 
 where the vexation haturally aroused by the taking of a second wife is 
 alluded to as being heightened by the changed behaviour of the hus- 
 band, who abuses and beats 'tht wife of whom he is tired. Although 
 as the Recorder has observed, there is no cbligation oh the husband 
 to provide a separate liouse for the first wife, he is bound to take care 
 not to abuse or beat her in circumstances when his affections have 
 been transferred to another woriian. 
 
 57. In section 18 too, the duty of the husband to minister to a 
 leprous or o tlierwise diseased, blind, or enfeebled wife is plainly 
 laid down : " He shall have no right to put her away with her pro- 
 " perty. If he takes a lesSer tvife, he has a tight to do so. If he 
 " negreets his fiirst wife arid does ffbttake care of her, minisier to and 
 " support her, let one-half of all he possesses be taken and given to 
 " her relations ; if he w ill not give up the property, nor support her, 
 " let him be se\^rely punished criminaHy. On ti e precedent of the 
 '' dkse of Aihpbola, th'e rahah, -this may bfe iclfecided 's6, and the t>ro- 
 '' pei-ty may also be taken from hirii. Iflius 'the Lord Recluse, called 
 *' Menu, said." 
 
 58. I note then that in the case of tlhe trading husband the excep- 
 tional rule a^ipK'efd to Mee Sontig is mJt applied, :ind that the speara- 
 tion niiy be eithdi* by license of the husband when there is no fault o'r 
 on accouri't of lega!l cruel'ty when a justfficatiori may be pleaded. 1/ the 
 husband alleges faulty conduct, he ought, on the ordinary rule of 
 pleading, to prove it. The principle is stated in sfectittn 18 : " The 
 " huBbaInd is the Ir rd of the wife ; "l^t her be judged aCcdrding to her 
 *' fault." 
 
 59. At section 38 of Book lOj page 286, the inheritance devolving 
 on the husband during coverture with several wives living in, the same 
 house is to be shared among them, on the general principle that wives 
 inherit from the husband. I can find no authority in the Dhamma- 
 that for holding that anything disqualifies a wife from any benefit 
 pertaining to the status, unless fault is piwed and as already 
 noticed, circumstances may often make separate living quite consistent 
 with a wife's performance of her duties, the opposite ruling alio 
 seems to conflict with the desir e of the Dhammathat to provide a 
 modus vivendt for the superseded wife in a polygamous society and to 
 -prevent a harsh husband profiting by his own wrong. 
 
 60. The wife has an iriterest in the husbaiid's gains for out of 
 them he is bound to maintain her, and his moveable pr'operty, without 
 exception, is liable for this purpose under section 536 of the Crirninal 
 Procedure Cdde. The wife, however, may be answer?ible for tlie debt 
 
 ^of a deceased or runaway husband, even when she was ignorant of it 
 I being incurred. The test given in section 30 of Book 3 at page 83 is 
 whether the debt was incurred for the bfenefit of both parties with a 
 view -to making profit, but not where the debt vvas incurred for 
 immoral purposes, or to pay a criminal fine, or in cock-fighting, or 
 gambling, oi: vVhere the debt was cOnti-aCted \vh€n the man was drunk, 
 (sections 30, 31, and 32), unless the wife has by her conduct signified 
 
to tlte creditor thit she assumes part di the responsibility for snch 
 
 debt. Similar rules apply to debts incurred by the wife without the 
 
 husband's knowledjje. If when the creditor comes to demand the 
 
 debt, the husband or wife has seen and been aware of his having 
 
 done so, and shkll have placed before him spirits, betel, tea, or 
 
 tobacco, or have begged him to wait a few days, they shall not 
 
 ' plead ignorance ; let them pay.. But if, when tiie creditor thus 
 
 comes and makes his demand, they have said before witnesses that 
 
 "^ thay have nothing to do with the debt, let them be free. Children 
 
 ' an 1 grindchildren are heii-s to good in ^ bad, let them pay." 
 
 By being heirs to goj 1 :in I bad is meant that the liablities go with 
 
 the assets on succession, a general principle of the law of inheritance. 
 
 61. In section 46, at page 93, the subject is i-esiimrd, the above 
 principles about liablity being, I supposfe, assumed, as the object in 
 section 6 is merely to detei-mine the proportion to be paid by the hus- 
 band accortiing to the rank of the wife £r condu'bitie. If the head 
 wife has incurred the debt for necessary ejcpenses and is dead, the 
 Imsbuid must pay with cent.- per.- cent, interest. In sections 47 and 
 48 the principle is hid down and followed out, by which all the wives 
 are liajbleJordpbl, incurred. by the. husband without. I'heir knov;ledge 
 in proportions accoriding to tfie w^ife's rank Fdi- their separate 
 debts not incurred for their joint beuefit the liability ot eacli wife 
 is single among themselves. At the end of section 48 ttccurs the 
 following passage. I am doubtful of its meaning, but 'it appears 
 to decide a case where the htisband dealt with one wife separately 
 from all the otiier vVives. Siiid where that wife and her family 
 succeeded somehow to the property in heir house, the others having 
 no share : here the debts and the ■assets^ the burdens -nd the benefiis, 
 are transferred together to the widow : — " If tht hrisband shall 
 " have the wives above noted in separate villages cr separate houses 
 " in th.^ 31 ne village md shill contract debts in the house of one 
 " only, the wife "ind children in that house shall pay it on Iris death. 
 " Why is this ? Because the property came into their 'possession : 
 " it is their own separate share.'' 
 
 62. This, it must be observed, is a very peculiar case, unknown, 
 I believe, in the present state of society. The husband has different 
 wives of the royal, the Bi^ahman, the wealthy, the mercantile, and the 
 poor class. We can only speculate about the circumstai ces under 
 which this one wife got a special treatment and inheritiincfe I do 
 not find in "the law of inheritance on the husband's deatVi, or in the 
 law of partition on divorce, that such great distinction were made 
 between wives of these classes, although tjie-- head wife wis c^irefnily 
 discriminated from the free concubine and the slave-wife as at Book 
 10, section 4o, page 588, and Book ll section 30, page 348, and the 
 following sections. We can, however, easily imagine a custom of con- 
 tract by which a royal wife or an heiress ^refused to associate with 
 the meaner sponse and had separate dealings with tradesman ; and 
 ■we have already noticed the cise of a tracteir who goes to afar country 
 to trade and there marries another wife. At page 311, section 81, 
 we find a peculiar rule of inheritance, which would be difficult to 
 explain if the precedent of the wkd pigeons had not been given. 
 
( 10 ) 
 
 There a husband and- wife live separate frQni each other and from 
 their chili! len. 
 
 63. The importance to the Burmese society, especially to the 
 Burmese women , of careful and correct settlement of the definition of 
 separate property has become manifest as we examine the peculiar 
 \conjunctures of married life. We have seen thai ii e wife is not 
 jHable to pay the debts incurred by the husband in adulterous, 
 'gambling, and other vicious pursuits. We"^ have seen that the separate 
 .property of a married woman exitts, and that the highest Court has 
 jheld her to be joint owner of the joint property. We have discussed 
 ithe careful and elaborate rules of the Dhammathat made to secure the 
 woman in her rights when death takes place in the f&m-.ly and when 
 the household is broken up on divorce. So that when a Magistrate 
 levies a fine under section 307 of 'the Criminal Procedure Code, he 
 should remember that his power extends only to the moveable property 
 belofigitig to the offender. These are the express words of the law, 
 and they do not include the- property, separate or joint, of the 
 Offender's wife. This interpretation is supported by the case at page 
 300 of Christopher's circular order-book, and in circular memorandum 
 27 of the 29ih October 188] , the procedure for hearing claims to 
 property attached in criminal cases laid down. In the present note I 
 have discussed this matter from the points of view of the: Dhammathat 
 and the Criminal, Procedure Code. But at page 2^, of Sandford's 
 Rulings, the learned Judge considers the wife's liability from the higher 
 stand-point of justice. lie says : — " I am inclined to think that- the 
 question to be decic ed- here, viz., the liability of a wife to third 
 '■ persons on account of an obligation contracted by her husband, can 
 " hardly be considered a question regarding marriage, and that in 
 ■' deciding this question the Court should act according to justice, 
 "equity, and good conscience, and should only be guided by Bud- 
 dhist law so far as that is just and equitable. But to hold a wife; 
 " personally responsible for an obligation contracted by her husband 
 ''to which it is not shown that she was in any way privy, aiid frcm 
 " which it is not proved that she received any profit, is certainly 
 "not in my opinion, in accordance with justice, equity, and good 
 '' conscience." To this I would add that in order to prove that the 
 wife was privy to the offence for' which the fine was levied, the 
 proper way is by charging her with it or with the abetment, and 
 it would be scandalously unfair to seize her property without even 
 making a charge against her. The Magistrates ought most carefully 
 to see that this well-known principle of justice is observed, especially 
 in those cases where the police or the informers are awarded part 
 of the fines. Otherwise there is a danger of our British justice 
 becoming unjust and of women being oppressed in defiance of the 
 law of the country and of the interpretations of the higher Courts. 
 
 64. I only glance here at the difficult question of the rights of the 
 parties who after divorce maiTy each other again. Mr. Justice Sandfotd 
 at page 10 of his Rulings, treats the second maniage as a jiew 
 start : and in the Recorder's judgment in civil suit 222 of 1879. the 
 following passage states the facts and the ruling : — " l he parties were 
 "lawfully married according to Burmese custom some 12 or 13 years 
 
(K 1-1- ; 
 
 ^' ago,.and lived together until six years ago, when she was divorced 
 ^. by- the loogyees on the ground of having committed adulteryv -and 
 ^^ she left the plainintiff' s house with one garment, but they afterwards 
 " came together again and lived as man Snd wife un'il the present 
 " year. From the manners and customs amongst Lhe Burmese, I 
 " hold that there-union constituted a legal marriage." In the one 
 case no reasons are. given ; in the other the re-marriage is treated -as 
 valid by custom i without reference to the Dhammathat The disuus- 
 sion appertains more fitly to the subject of dissolution of marriage 
 contracts. ■ 
 
 ~-i ■ ' 
 
 65. So also th€ rights of the parties on divorce taking place. In 
 the case at page 24 of Sandford's Rulings the Judicial Commissioner 
 rules that "a husband is entitled to take back his separate property 
 " oh < divorce, even when the .divoirce is agkinst the wish and not 
 " owing to any fault on the part of, the wife.'" in suits 127 and' 179 
 of 1880, and suis 1S6 of 1881, the Recorder ruled that if either party 
 wishes to separate and the other does not and is not in fault, the 
 pai'ty so wishing to sepkrate should forfeit all right to a shai-e in the 
 jvint family property. It does not seem to be disputed that if both 
 parties assent to divorce. and neither is at fault, each takes out his or 
 her separate acquisitions and they divide the joint property between 
 them, as stated at section 53, page 128, of B6ok XII of the Dham- 
 mathat. 
 
 66. I am obliged, however, to make some remarks on section 3 
 of Book XII as translated by lychardson, pige 341, as in the descrip- 
 tion of three kinds of property acquired separately by husband or 
 wife, the second kind is what was acquired by skill or science, and 
 so far as the husband is concerned the words during their cohabitation 
 are rightly inserted in the translation at page 342. But I find no 
 authority there or anywhere else in the Dhammathat for holding 
 that the faultless wife is on divorce to be deprived of any share wha^^ 
 ever in what may be the only property in the establishment (see the 
 o6»ter dictew in the goldsmith's case cited in paragraph 45 of this 
 note). Such a ruling would enable an Advocate, whose whole property 
 was derived from pleading, to divorce his wife and retain all the 
 property. The section under notice makes very plain differences 
 between a virgin couple and married pair who have both been married 
 before. The word thinlhee is not used, and the divisions do not 
 coincide with thinthee and hnafazone. If the virgin couple agree to 
 separate, each takes two-thirds of his separate acquisition and the other 
 takes the remainder. So that if the separate property of the husband 
 ■was Rs. 18,000 and that of the wife Rs. 9,000 and they separated by 
 consent, the husband would get Rs. 15,000 and the wife Rs. 12,000. 
 Here is an endeavour to equalize their fate, and the wife is benefited. 
 If, however, one party objects to the divorce and is without fault, the 
 party wishing for divorce takes out his or her clotlfes and ornaments 
 and only one of the three sorts of separate acquisitions mentioned 
 in the section, vts., what was given by the King, whatever that may 
 mean ; what was acquired by skill and science during the coverture 
 he has to leave behind ; this and all else is forfeited to the party not 
 wishing for divorce. 
 
( 12 ) 
 
 \Kl>ere the r^rtjes have bpth tasted matrimony before the rule, is 
 differisnt. Ifc the cUvorce is by mutual consenl> each takes the pro- 
 perty he or she brought in, apd the rest, with the debts, is to. be 
 halved* An ejjccptiopal rultf is, however, given as to the ancestral 
 inh^itance devolving, during- coverture [sefi paragraph 3<A above', 
 wiiich is. divided in proportions of two-thicds and^ 0!ie-third. Where 
 the couple wrho have been married, before sepiirate at theinstance of one 
 party, th^ other objecting, tfee party vdshingifor d^vorpe takes out only 
 what he originally brought in; all the rest remains vvifhthe otlifr 
 party, and no exception is made of what was gained diu-ing coverture 
 eii her by science or by gift from the King. The word used is payin, 
 which Majot; Sparks translators as oi;igiij^ally. b^n^v^. The distinc- 
 tiQn betw?eii gajns resulting from labour and, capital which RicbsiMi- 
 son itissrts ip, t^he ienteoce. awted, in pa^a^aph 52 is. not appairent 
 in the Burmese and seems mijileadipg X Have had a translation made 
 of section ^7Q of thg Menu Wpoijana Dham^iatlj^t, ^'hi/sh say^ that 
 in a divorce by mfitual cpnseijit the division, shall be into tW9r^irds 
 and ori|E-tliird betw;een the hijsband and vfife according tp tb«|ir 
 relatipp g,s t^isaya and n/ssf/a. which is sppi^tbipglike t^qtofcapiiaii.^t 
 and ciep^i^fJ^it. But w;hese tlJ^y coijtracted mateinwny on t^^xs oi 
 more equality they ^clj take out. tbpir original property arid, divide 
 th^ rrajaip4gr,. I t^iink therefore that we oi^ght not hastily to 
 supersede ^be ordinary juridical view of m^tdmon^r as %. jouit s:^tus 
 in favour of the theory that, even as status by mere operation o^ law 
 and \yithovit special contract it is subject to the rules about separate 
 capital, and. joint. labour, which j^e reasonable eijopgh ip commej-cial 
 partnerships' and ot,her connections founded on contract. At any 
 rate we pught t,o be very certain of our authorities iirst pi,- of, the 
 established bustom, apd the chief reason why I suggest doubts as. to 
 soundness of the exceptional rule is that no authorities are quoted and 
 lean find none 
 
 ^7. ThiSi briiigs me to the thr^^ld Qf> another matter likely 
 before Igng to be of g)rnei;al importance. At present there are no 
 sufficient tn.at^riajs for determining questions aboj^t the substitiifcipn 
 of contractual relations for thos.e of stri,tns. \yould a woman be 
 entitled to h^viei i arpages in a. sipt for b, eaph of premise or to a 
 greater sharq in a buit, for <^v6rce if she proved that the husband 
 Ijad copti:act,ed ijot to epter into, a po|.ygamous marriage an.d had 
 brqlfeq the cqntraqt ? Can either party by express words or conduct 
 contract thi^mselves o»it of their statps so as t;o. T^ treated in matters 
 of sepaf;ate ti;ajde of investment or pr9l>erty as, if, the marriage-bond 
 did, not exist between, them? How far m?iy the one be treated as 
 independent of thp^oth^r in civil suits an4 PFOpeedings ? I imagine 
 th^se mattei;s must be left for decision as. they jyri^?. 
 
 I^ANQOON. : 
 ?ftc ^iiSt July U82'. 
 
 G.U.B.C P.O.— No. 145. Min. of J.A., 29-7.-53- 500.— IK