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Introduction
The law of succession or inheritance constitutes that part of any
national system of laws, which is the most peculiar and distinct,
and which is of most frequent use and extensive application.
The rules of succession to
property, being in their nature arbitrary, are in all systems of
law merely conventional. Admitting even that the succession of the
offspring to the parent is so obvious as almost to present a
natural and universal law; yet this very first rule is so
variously modified by the usages of different nations, that its
application at least must be acknowledged the founded on consent
rather than on reasoning.
In India, there are a number
of different succession laws, each purporting to reflect the
diverse and differing aspirations, customs, and mores of the
community. In the Hindu jurisprudence in particular, it is the
branch of law, which specially and almost exclusively merits the
attention of those who are qualifying themselves for the line of
service in which it will become their duty to administer justice
to our Hindu subjects according to their own laws.
One branch of Hindu
Jurisprudence was Marumakkattayam and
Aliyasantana system which
were followed in Travancore-Cochin and districts of
Malabar and
South Kanara of India and were off late abolished. Through this
paper I have tried to conceptualize their origin, practice,
decline and reasons for such decline and try to analyze why the
only matrilineal system of inheritance was abolished in this male
dominated society.
Marumakkattayam Tradition
In the Marumakkattayam law, which prevailed in
Kerala wherein the
families were joint families, a household consisted of the mother
and her children with joint rights in property. The lineage was
traced through the female line. Daughters and their children were
thus an integral part of the household and of the property
ownership as the family were matrilineal. It is applicable to a
considerable section of people in Travancore-Cochin and districts
of Malabar and South Kanara. It is followed by
non Brahmin castes, Nairs and
Thyas, other cognate castes and Payyannur Graman of
North Malabar.
As per Wikipedia Encyclopedia, it was a system of matrilineal
inheritance prevalent in Malabar which is the northern part of the
present Kerala State in India. Under the Marumakkattayam system of
inheritance, descent and succession to the property was traced
through females. The mother formed the stock of descent and
kinship as well as the rights to the property was traced through
females and not through males. Marumakkattayam literarily meant
inheritance by sisters’ children as opposed to sons and daughters.
Word ‘Marumakkal’ in Malayalam means nephews and nieces. It is
generally agreed by scholars that matrilineal system was the
direct result of some system of polyandry that existed among
ancient races. Descent through females indicated uncertain
paternity. The origin of this system is traceable to
polyandry
prevalent in ancient Malabar is an agreed fact by historians. The
joint family under matrilineal system is known as
Tarawad and it
formed the nucleus of the society in Malabar.
his customary law of
inheritance was codified by the Madras Marumakkathayam Act 1932.
The definition of Marumakkathayam in Madras Marumakkattayam Act
1932 is ‘Marumakkattayam’ means the system of inheritance in which
descent is traced in the female line and ‘Marumakkattayee’ means a
person governed by Marumakkathayam Law of Inheritance. ‘Tarawad’
means the group of person forming a joint family with community of
property governed by Marumakkathayam Law of Inheritance. A
Tavazhi
used in relation to the female, is defined as the group of person
consisting of that female, her children and all her descendants in
the female line. And a tavazhi used in relation to a male, is
defined as the tavazhi of the mother of that female. This system
of inheritance is now abolished by The Joint Family System
(Abolition) Act, 1975 by the Kerala State Legislature. But still
some Muslim families in Malabar and people of Lakshadweep are
governed by this customary law system of inheritance as the
Abolition Act applies only to Hindus. Muslims in Malabar happened
to follow this system as they were originally Hindu converts and
Lakshadweep people are believed to be persons migrated from
Malabar.
Further as per Sec 3(h) of
Hindu Succession Act, "Marumakkattayam law" means the system of
law applicable to persons.-
(a) who, if this Act had not been passed would have been governed
by the Madras Marumakkattayam Act, 1932, the Travancore Nayar Act,
the Travancore Ezhava Act, the Travancore Nanjinad Vellala Act,
the Travacore Kshatriya Act, the Travancore Krishnanavaka
Marumakkathayee Act, the Cochin Marumakkathayam Act, or the Cochin
Nayar Act with respect to the matters for which provision is made
in this Act, or
(b) who belong to any
community, the members of which are largely domiciled in the State
of Travancore-Cochin or Madras (as it existed immediately before
the 1st November, 1956) and who, if this Act had not been passed,
would have been governed with respect to the matters for which
provision is made in this Act by any system of inheritance in
which descent is traced through the female line.
Marumakkattayam is a
matrilinear system of inheritance that is unique to Nair
Tharavadus or Nair communities in Kerala state. It is exceptional
in the sense that it was one of the few traditional systems that
gave women liberty, and right to property. Under this system,
women enjoyed respect, prestige and power. An exception is the
community of Mannadiars of Palakkad, because they follow
patrilineal system. Some historians believe that the
Marumakkattayam system started after the Chera-Chola wars during
the second Chera empire, as Nairs lost most of their men during
the war.
In the Marumakkattayam system,
the family lived together in a tharavadu which comprised of a
mother, her brothers and younger sisters, and her children. The
oldest brother was known as the karanavar and was the head of the
household and managed the family estate. Lineage was traced
through the mother, and the children "belonged" to the mother's
family. All family property was jointly owned. In the event of a
partition, the shares of the children were clubbed with that of
the mother.The karnavar's property was inherited by his nephews
and not his sons. Among the Marumakkathayees, it was the custom
that the wife and children of a male member of a joint family used
to reside in the joint family of which his wife is a member.
During the past ten decades, there had been an urge for a thorough
change in the old family customs.
The Marumakkattayam system is
not very common in Kerala these days for many reasons. Kerala
society has become much more cosmopolitan and modern. Nair men
seek jobs away from their hometown and take their wives and
children along with them. In this scenario, a joint-family system
is not viable. However, there are still a few tharavads that pay
homage to this system. In some Nair families, the children carry
the last name of their mother instead of the father, and are
considered part of the mother's family, and not the father's.
Nairs connect to and trace their lineage to a tharavadu and not to
a member of the family. Tharavadu names are quite an important
element of social reckoning, though decreasing in importance these
days. The Kerala rulers also followed the 'Marumakkattayam'
system.
As a result of intense social
pressure, legislative enactments sanctioned the claim to partition
from the joint family and adopt Makkattayam system i.e.
inheritance through male line. Due advantage has been taken of
these legislation by the majority of the communities and the
gradual but the steady breakup of the joint family system
resulting in individual members leaving their joint family and
setting up homes of their own has been a salient feature in the
recent past. But legislation has not extirpated the
Marumakkattayam customs and traditions. The divided members still
cling to their old family names and titles. In the observance of
the customary ceremonies and pollutions the affinity of the
Marumakkattayam system is still evident.
Aliyasanthana Tradition
This system is applicable in South Kanara. The
Bunts, the Billawas
and the non Priestly class among the Jainas in Kanara are governed
by this system. This tradition came into practice and was followed
by every one in the Bunts' community with the belief that it was
an ancient practice. Bunts still believe that this tradition was
inherited from a King Bhutala Pandya who ruled Tulunaadu and
introduced this system in 77 A.D.
As per sec 3(b) of
Hindu
Succession Act, "Aliyasantana law" means the system of law
applicable to persons who, if this Act had not been passed, would
have been governed by the Madras Aliyasantana Act, 1949, or by the
customary Aliyasantana law with respect to the matter for which
provision is made in this Act.
The Aliyasantana system is the
system of inheritance through female line which gives property
rights to the lady and all rights are centralized on her, example:
Some of the surnames of Bunts come from the mother side; the name
of the mother's ancestral house normally became the prefix or
suffix of one's name. This may be because when men went to the
battlefield, the wife took the whole responsibility of the family
and became the decision-maker. So in the Aliyasantana system more
importance is given to the mother's side of the family. More
respect is given to maternal uncles than to the paternal uncles.
In this system the eldest member is known as ejaman and the eldest
female member is known as ejamanthi. The senior-most member
whether male or female, is entitled to carry on the family
managements.\No member of the tarwad had a right to claim
partition or separate possession of his share without the
concurrence of other members. But the law was changed by the
Marumakkattayam Act and Aliyasantana Act. A member was given a
right to separate himself or herself from the joint family and
claim partition. The ascertainment of the share at the partition
is per capita and not per stripes.
In Marumakkattayam and
Aliyasantana systems, the question of inheritance could arise only
in the respect of individual property or in respect of the family
of the extinct tarwad. The self acquired property of a male member
of the tarwad, which has not been disposed off of by him during
his lifetime, passed to the tarwad and formed part and parcel of
its property.
The Marumakkattayam And
Aliyasantana Laws & Mitakshara Law
# Alike joint family and Coparcenary of the
Mitakshara school the
Marumakkattayam and Aliyasantana systems have their unit tarwad.
The joint families under all these systems are corporate units and
are joint in food, worship and estate, but the joint estate is
impartible under these systems unless all the members agree. The
rights of management and alienation invested in the Karanavan are
analogous to the rights possessed of the karta of Mitakshara and
Dayabhaga joint family.
# Similarly in both the
systems, on the death of any one of its members, his or her
interest devolves on the other members through survivorship.
# In both the systems on the
death of anyone of its members, his
or her interest devolves on the other member of the joint family
by survivorship.
# The basic difference is that
the Mitakshara Joint Family is based on patriarchal system while
Marumakkattayam and Aliyasantana system is based on matriarchal
system.
# In Marumakkattayam and
Aliyasantana system every member whether male or female has equal
right in tarwad (property) by virtue of his being born in that
tarwad ( family) while in case of Mitakshara the only
son,
grandson and great grandson have the right by birth in the joint
family property.
Marumakkattayam System V. Aliyasantana System
# The only vital difference between the two systems is that in Aliyasantana system, the senior most member whether male (ejaman)
or female (ejamanthi) is entitled to carry on the family
management while in Marumakkattayam system the senior most male
member (karnavan) has the right and power to carry on the family
management and in the absence of male adult members the senior
most female member (karnavathi) has the power to carry on family
management.
# As per judicial decisions
the self acquired property of a female member in Marumakkattayam
system descended to her Tavazhi, i.e. to her own issues and in
default of her issues, it devolved to her mother and her
descendents. In case of male member if the property has not been
disposed during his lifetime, lapses to the tarwad (joint family)
and forms part and parcel of its property. While in Aliyasantana
system there is no distinction as to the devolution of property of
a male or female member. The self acquired property of a member
goes to the nearest branch, and where there are more branches than
one standing in the same degree of relationship, they inherit
jointly.
Legal
Enactments And Provisions
The Marumakkattayam and Aliyasantana laws are therefore
essentially customary laws and there are no sacred writing binding
on the followers of these systems. Even prior to the passing of
Hindu Succession Act, the customary law of Marumakkattayam and
Aliyasantana had been modified by the statutory law. The main
enactments modifying the law are: Malabar Marriage Act, 1896,
Malabar Wills Act, 1896, Madras Marumakkattayam Act, 1932,
Mappilla Marumakkattayam Act, 1939, Madras Aliyasantana Act, 1949,
Regulation of the State of Travancore-Cochin.
The law of succession of
Marumakkattayam and Aliyasantana had been changed by legislative
enactments. The Marumakkattayam Act and the Aliyasantana Act
lay
down the rule of succession to the property of a member of the tarwad dying intestate. Under the
Madras Marumakkattayam Act the
preferential heirs of a male member are: his mother, widow, and
children
The property can be inherited
by tavazhi only when the intestate has died without leaving his
mother or children or lineal descendants in the female line. The
nearest heirs of the female member are: her children, lineal
descendents in female line and in default of former: mother’s
tavazhi, husband and maternal grandmother’s tavazhi. In default of
either the whole is taken by other.
The testamentary powers under
both the systems had also been recognised by legislative
enactments. The Malabar Wills Act, 1896
provides rules for
execution, attestation, revocation and revival of the wills of
persons governed by Marumakkattayam and Aliyasantana system.
Similar provisions have been enacted in Regulations of the State
of Travancore-Cochin.
It was later realized that
existing law of Marumakkattayam and Aliyasantana system was not
satisfactory and along with reform in the Mitakshara and Dayabhaga
system, a reform in the law of these systems was also necessary.
The Hindu Succession Bill contained the provisions reforming the
law of succession of Marumakkattayam and Aliyasantana system. The
rule of succession of property of a male and female were
different.
But the present act (Hindu
Succession Act) has changed the scheme of the original bill.
Section 7 of the Act deals with the devolution of interest in the
property of tarwad etc. It repeals and replaces the law of
intestate and testamentary succession applicable to these
families.
The rule of succession
applicable to the property of a female or male members of the
Marumakkattayam and Aliyasantana system have been enacted under
Section 17 of the said Act. The section provides that, with
certain modifications, the rules applicable are the same which are
applied to Hindu male or female under the Hindu Succession Act,
1956. This section specifies that in case a male dies intestate,
his property shall devolve: Firstly, upon the heirs, being
relatives specified in class I of the schedule. Secondly, if there
is no heir of class I, upon heirs of class II of the schedule.
Thirdly, if there is no heir of any two classes, upon his
relatives whether agnates or cognates.
The rules applicable for the
distribution of property among class I and class II heirs are the
same as are applicable to other Hindus, i.e., as per sec 10 and 11
of the Act.
As per sec 17 the property of
a female dying intestate shall devolve on the following: Firstly,
upon the sons and daughters (including the children of any
pre-deceased son or daughter) and the mother. Secondly, upon the
father and the husband. Thirdly, upon the heirs of the mother.
Fourthly, upon the heirs of the father. Lastly, upon the heirs of
the husband.
Any property inherited by a female from her husband or from her
father in law shall devolve in the absence of any son or daughter
of the deceased (including the children or any pre-deceased son or
daughter) not upon the other heirs referred to in sub-section (1)
in the order specified therein, but upon the heirs of the husband.
Also under the
Kerala Joint
Hindu Family System (Abolition) Act, 1975, the acts pertaining to Marumakkathayam and Aliyasantana system were abolished and it was
an act to abolish the joint family system among Hindus in the
State of Kerala.
Under Sec 7 of this Act both these system based on custom and
usage were abolished. Section 7 states that:
(1) Save as otherwise expressly provided in this Act, any text,
rule or interpretation of Hindu Law or any custom or usage as part
of that law in force immediately before the commencement of this
Act shall cease to have effect with respect to any matter for
which provision is made in this Act.
(2) The Acts mentioned in the
Schedule, in so far as they apply to the whole or any part of the
State of Kerala, are hereby repealed.
It repealed the following acts
pertaining to the above 2 systems (as per schedule under Sec 7(2))
a. The Madras Marumakkathayam Act, 1933 (XXII of 1933)
b. The Madras Aliyasantana Act, 1949 (IX of 1949)
c. The Travancore Krishnavaka Marumakkathayee Act (VII of 1115)
d. The Cochin Marumakkatyam Act, XXXIII of 1113
Decline Of The Systems
This empowering system disintegrated with time. The period of wars
was over. Land ceiling laws reduced the extent of possession under
the tharavadu and they gradually dwindled in size and wealth.
Economic changes in society and
ideological and cultural
perspectives acquired by the educated middle class and the changes
in the value system affected the joint family tharavads. The
unitary nuclear family suited people better. The structure of the
matrilineal tharavadu changed between the 18th and the 20th
Century, which concurrently affected the rights of women within
the household. The very structure of the matrilineal kinship also
underwent tremendous change. The real reason for the disappearance
of the tharavadu was the selfishness and the untold greed for
money in siblings in matrilineal families.
The new laws and legal
procedures that were introduced in Malabar and also in Travancore
and Cochin from the 19th Century onwards had an adverse impact on
the rights of women in Nair tharavads. Nair reform movements
challenged the unmitigated powers of the karanavar. Patriarchal
values influenced men and women alike. Women supported the
partition of joint family systems and in the 1930s women took the
initiative in the partition of many tharavads. In Travancore,
within five years of the Marumakkattayam Law of 1933, which
sanctioned the dismantling of the tharavadu and the partition of
property, 32,900 families were partitioned. Rules of matrilineal
kinship were twisted and interpreted and adapted to political,
economic and legal exigencies.
The Marumakkattayam system is
not very common in Kerala these days for many more reasons. Kerala
society has become much more cosmopolitan and modern. Nair men
seek jobs away from their hometown and take their wives and
children along with them. In this scenario, a joint-family system
is not viable. However, there are still a few tharavads that pay
homage to this system. In some Nair families, the children carry
the last name of their mother instead of the father, and are
considered part of the mother's family, and not the father's.
Nairs connect to and trace their lineage to a tharavadu - not to a
member of the family. Tharavadu names are quite an important
element of social reckoning - though decreasing in importance
these days. The Kerala rulers also followed the 'Marumakkattayam'
system.
The Kerala Legislature's abolition of matrilineal kinship, which
varied enormously across time and regions, was the culmination and
a predictable consequence of two centuries of legal change and
social reforms. Presently, matrilineal kinship occupies merely a
shadowy and at times nostalgic part of collective Keralite memory.
Views
And Criticism
After studying the two systems its my view that these systems were
part of very few of the traditional systems that gave women
liberty, and right to property. Under these systems, women enjoyed
respect, prestige and power. Since ancient time India has been a
male dominated country. All the systems and customs were
formulated by men, like Narada, Manu, Yajnavalkya etc. If we study
the Hindu law we can easily derive the conclusion that that all
laws were made as per convenience of the ‘Man’. A woman has been
given a subordinate place in our society since its inception. She
had no right to inherit property and was confined to four walls of
the house without any right to education to her. In my view these
laws were discriminatory and biased in favor of ‘Man’ since there
inception.
In this environment, these two
systems proved to be a soothing air for the women. These two
systems prevelant in few parts of South India gave women the basic
rights and succession carried on through matrilineal system as
oppsed to rest of the country. Under these two systems women had
the rights, which were claimed by men in rest of the country.
Throuh many studies it has been proved that women can manage house
and property better than man. This has been proved through the
success of The Marumakkattayam and Aliyasantana system.
But this is a male dominated
world and it is through their instinct that they can’t remain
subordinate to a women. So this conception led to decline of these
two systems through legislative enactments, which resulted in
giving full fledged power and domination into the hands of man
again. In the guise of modernism and cosmopolitanism the
Marumakkattayam and Aliyasantana system were repealed in the fake
name of development and unanimity with rest of the country. There
was intense social pressure from all corners of the society and as
a result of intense social pressure, legislative enactments
sanctioned the claim to partition from the joint family and adopt
Makkattayam system i.e. inheritance through male line, thus
breaking away the unique historical systems of inheritance through
female line.
Thus patriarchy had superseded
the matriarchy. This has changed the whole system and practice and
The Karanavan, who has lately taken over from the female, is
entitled to the full possession and management of the property.
The junior members legally have no claim to residence and
maintenance. The Karanavan is not accountable to any one member
and he is not under obligation to support any member of the
Tarawad (family). Therefore now the male member enjoys autonomous
right over the property and may exclude other on his whims and
fancies.
In these syastems the oldest
brother was known as the karanavar and was the head of the
household and managed the family estate and the lineage was traced
through the mother. All family property was jointly owned. In the
event of a partition, the shares of the children were clubbed with
that of the mother. The karnavar's property was inherited by his
nephews and not his sons. It is clearly evident that under this
system also, the family management and property was under the male
head. Only succession was through women. Here the property
belonged to all jointly unlike another systems like Dayabhaga and
Mitakshara system, where the property rests in the hands of male
members only i.e. Karta and the Coparceners. So joint ownership
was the golden point of these two systems. But due to selfish
reasons and social and political pressure from all over the
country these systems were abolished ignoring there substantial
rules.
The real reason for the
disappearance of the Marumakkattayam and Aliyasantana system was
the selfishness and the untold greed for money in siblings in
matrilineal families which resulted in adverse impact on the
rights of women. Man for his selfish interest let down this
system, which led to a darker aspect in the life of women.
Conclusion
Since the inception of the mankind women has been discriminated
against and being subservient by the male dominant society. The
Marumakkattayam and Aliyasantana system were the only systems
prevalent in India which provided property rights and ownership to
women as against men. But these two systems were abolished by the
Kerala Joint Hindu Family System (Abolition) Act, 1975. There was
no concrete reason given by the Kerala Legislature before passing
this act, but it clearly culls out that the only intention of this
act was to expressly repeal the custom of giving property rights
to the women and it vested property rights in the hands of men, as
prevalent in rest of the country.
Therefore the actual reason
for the disappearance of the Marumakkattayam and Aliyasantana
system was the selfish interest of men, issues and siblings which
led to disappearance of the interest of women.
Through this paper I have
learnt that this world is still male dominated. Neither law nor
the constitution in terms of Art 14 comes to the rescue. A woman
has to tread her own way to come out and win in this male
dominated society and fight against this patriarchal male
dominated society where she is subverted.
***************
References
1.
http://en.wikipedia.org/wiki/Marumakathyam
2.
http://fermat.nap.edu/books/0309075548/html/162.html
3.
http://www.4dw.net/royalark/India/glossary.htm
4.
http://www.answers.com/topic/nair
5.
http://www.boloji.com/hinduism/047.htm
6.
http://www.hindu.com/pp/2004/07/10/stories/2004071000310300.htm
7.
http://www.hinduonnet.com/lr/2003/12/07/stories/2003120700380600.htm
8.
http://www.huntindia.com/matrimonial/act1956_2.asp
9.
http://www.keralahistory.ac.in/ke_ga1.htm
10.
http://www.masterliness.com/a/Marumakathyam.htm
11.
http://www.payer.de/dharmashastra/dharmash091.htm
12.
http://www.prd.kerala.gov.in/prd2/keralam/kathayam.htm
13.
http://www.yotor.com/wiki/en/ma/Marumakathyam.htm
14. Mayne, Hindu law and Usage, 971-994
15. Paras Diwan, Family Law, Allahabad Law Agency, 5th ed, 2005
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