Matriliny In Kerala – Inheritance Rights of Women and Its Effect On The Hindu Marriage Act, 1955

Picture Courtesy: http://isha.sadhguru.org/blog/lifestyle/relationships/recipe-for-a-happy-marriage/

This article was written by Monalisa Sarkar, a student of WBNUJS.

Introduction

One of the most significant departures from prevalent norms in the Keralian society can be found in its practise of Matriliny which confers it with its uniqueness. This practise is also known as Marumakkathayam which forms an essential part of the Keralian culture. This provides strong evidence to the fact that the medieval Keralian society unlike any other Indian society was not only framed by caste, but the maternal and paternal form of dissent also formed a very essential part in its formation and shaping of the community as a whole. Among most other prevalent norms during that time, the most significant one to be emphasized on is the unique form of matrilinieal dissent. This custom was brought into effect by the Kshatriyas, the Nayars, Muslims belonging to the Malayali race, the Ambalavasis and extended little bit to the Ezhavas and those groups who had been out casted.

Among the Hindus however, the craftsmen who belonged to the Kamalla castes along with the Brahmins comprised of the major groups forming Makkathayam or Patrilineal form of inheritance thus adhering to the old regressive form of succession which did not recognize the rights of women. Concerning the other religions, the Jews, the Christians, the Muslims and the descents from Arab also followed similar mode of inheritance however the point of difference being – the concept of living in a joint family was not a part of their practise unlike the Hindu joint family system, which till date continues to form an essential part in regulating the mode of inheritance in the Hindu community[1].

HISTORICAL ASPECT:

The practise of Marumakkathayam started in India with the initiation by the Nayar family which essentially consisted of people who shared a common ancestry down the female line of dissent, that is to say, they belonged to the family of the wife rather than the husband[2].

Despite this, the power of administration of the family member remained vested with the male members belonging to the Tarward, who was popularly addressed as the Karnavan. The absolute power of decision making with respect to the property remained with the Karnavan, however he was not granted the power of alienation of the property without the consent of the other members being taken into consideration[3].

The advice of the Nayar women pertaining to the state of affairs of the family was given considerable importance. They were also given independence and security which was rarely available to the women during that period. Because of this unique practice, the Nayars enjoyed immunity from the dowry system and the “socially induced tragedy of widowhood” – the two main features which formed the basic drawbacks of the Indian society.[4]

This was owing to the fact that the Nayar women even after marriage retained the rights in her paternal home along with all other titles and was subjected to equal treatment like any other male or unmarried female member[5].

This system of joint family came to be known as Tharavad. The eldest male in the family was addressed as the Karanavar, he was primarily vested with the responsibility of managing the family property. The line of dissent was drawn along the mother and the children were considered to be a part of the mother’s family, while the family property continued to be jointly owned. The joint owners comprised of the Tharavadu members who shared a common line of dissent. Here, the sister was considered to exercise dominance over the wife of the husband in terms of “affection and responsibility.” Women from this section of the society were considered to be guests at their husband’s home where they paid occasional visits. But it still limited women’s rights subjected to their male counterparts. One significant positive aspect of this system was that, the property was jointly owned by all the members unlike most other Hindu societies where this power would be vest only with the male members[6].

After the death of her husband, she continued to live in her family home in the capacity of a Tarward, contrary to the humiliation that other women had to face in the husband’s family which was most prevalent in the rest of India at that point of time. The entire structure of the Nayar family was such that, in the matrilineal joint family the younger Nayars could not retain themselves once they had lost their military trade[7].

Another similar practise which was followed was Marumakkal which implies nephews and nieces. One such example could be the former policy which was followed in Tiruvatankoor. In this practise, the royal lineage instead of passing to the king’s own children would pass onto his nephews. The family continued to live together comprising of mother, her brother and sisters along with her children[8]. Under this practice, though family lines were drawn according to the mother’s line of dissent, but the power to make decisions in the family remained vested upon the male members.

 Despite this, it can be conclusively deduced that, irrespective of certain limitations that continue to persist, Matriliny has nonetheless conferred women with certain rights which has shown a very progressive outlook. Matriliny played a very crucial role in devising the existing set of norms which gives women in Kerala this unique power which completely deviates from the practise followed in rest of India. This gives a woman the power playing the leading role in the family and this is specific to the role of mothers.

The society which has brought about the assent of Matriliny has been considered to have seen its emergence during the crisis period when a conflict took place between the second Chera Dynasty and the Chola dynasty during 1985 which led to the demise of Chera dynasty. This was the first evidence of Matriarchy that could be traced during that period[9].

While dealing with the concept of Matriliny, the points that need to taken into consideration that, although this practise was very popular in the region of Kerala, yet it was not practised by all the communities. Despite these relations lasting for a lifetime, changing partners did not attach any stigma to it. Decision making no doubt could be the final choice of the woman, but the male members were also not sufficient. The decisions made required the consent of the elderly female members of the house. The children were raised in their mother’s house and considered to be their liaisons. Contradictorily to the practise followed in rest of India, daughters in Kerala had the liberty of choosing their grooms. On the other hand, their brothers could visit only those women who could meet their status in the neighbourhood. The Nair family usually had the controlling power of land and also looked after the governance of the estates. This system showed a unique flexibility in its functioning. This had also been pointed out by Sradamani when she referred to the fact that, this flexibility saw its peak when India was under the colonial rule of the British. Although the law was more or less in its essence yet it slightly differed in the process of implementation from region to region. For example, in certain areas though in some upper caste groups Patriliny continued to exercise its dominance, but in certain lower caste groups, including Muslims, Matriliny saw its gradual emergence. However, during the time around 1830s, a British-inspired legal system saw its eventual progress in Kerala which changed all the existing rules. The new courts that came into existence opined that the joint family system was capable of subsequent divisions. The immovable property belonging to the joint family system could not be alienated. The members were not given the right of claiming their specific shares in the family property. The Naira themselves began to embrace the changes that were being brought about. The matrilineal family arrangement eventually began to shift towards the partilineal form of family system.  Matriliny, though originally formed a part only of the Keralian way of lifestyle, eventually spread its tentacles over the Hindu Marriage Act as well, thus leaving a crucial influence over the rest of this country[10].

POSITION OF THIS CUSTOM IN THE PRESENT INDIAN SOCIETY:

Despite its wilful recognition by a large number of people, this prevalent practise was nonetheless repealed by the law of the land in the year 1976. However, this could not prove to be completely efficient in curbing the practise in its entirety which still continues to persist in the sentiments of the people as it traces its roots back to ancient Keralian way of living and customs. Gradually with the passage of time, the existing system of inheritance was subsequently amended by statues which brought about a revolutionary change in the system of inheritance which were traditionally followed. The first such revolution took place in the region of Travancore which was brought in the year 1912. This new regulation gave liberty to a man to alienate half of the estate over which he exercised his personal rights but he could only pass this on to his sons.  Later in the year 1925, subsequently another regulation was brought into effect which had a more comprehensive approach. This allowed the actual partition of the Tarwad property with each family member getting an equal share. This change was later brought about in the region of Malabar in 1933 and then in Kochi in the year 1937. This was the exact replication of the new regulation followed in Travancore. Modernization and social reforms brought along reforms in the system of Matriliny and led to the breakdown of the rural structure in Kerala. Families got fragmented into smaller units. The existing aristocracy was forced to crumble down. Despite everything, it gave the Malyali women their freedom which has largely influenced their perspective and cannot be found in any other region of India. It also has successfully given them a well rooted position in their parental home and restricted exploitation of widowed women[11].

EFFECTS OF MATRILINY ON THE HINDU MARRIAGE ACT, 1955:

Under section 15 of the Hindu Marriage Act, 1955, a Hindu woman who dies intestate leaving behind her property, will only have male members as the claimant of the same. This is a rather regressive approach. However, section 17 of the same act lays down an exception. It gives inheritance rights only to heirs of mother for those who would have been governed by the matrilineal laws had the new law not come into effect. The husband here gets supplemented by his mother instead of his father. The woman’s father and her husband, under this provision enjoy equal rights. The list of beneficiaries laid down here places the husband’s heirs in the second position.  In the year 2002, many cases were filed in the Kerala High Court which brought about serious issues concerning the matrilineal practices which had been prevalent for long and were of utmost sentimental value for the people residing there. These cases brought about the real scenario of Kerala, it emphasised on the degree of importance that this practise was associated with, Hindu or Muslim irrespective. It was subsequently upheld that Section 17 of the Hindu Marriage Act was perfectly valid and required to be given due importance. Going against what has been stated elsewhere in the law, this provision clearly lays down that, in matters of inheritance when a Hindu woman dies intestate, the mother of the dead lady gets inheritance rights over the husband. In the year 1922, this provision was subjected to challenge on grounds of Kerala legislation[12] which stated that, after all the disputes arising over a matrilineal claim were solved, the remaining Hindu people could not ask for any further claims in the property. Going against this provision, the Kerala High court held that, as long as their people continued to live, for whom the Matrilineal law was an intrinsic part of their lives, section 17 of the Hindu marriage act will continue to prevail. This essentially meant that, this would be applicable to anyone who was born before the Kerala Act of 1976 was brought into effect. This conclusively deduces that, these laws will continue to be validly into effect for a minimum period of sixty years.

The “Kerala Model” primarily bases its arguments on the concept of matrilineal precedence which saw its gradual influence in the society around 1990s. From the cases that were coming up, in the context of the existing scenario it could be understood that though the new Kerala law curbed down the old law, but abolishing the joint family system in its entirely in such a short span of time could not be brought about. The family ties that had continued for generations and were of such sentimental value could not be done away with. Over the course of deciding these cases it was finally concluded that, the inheritance rights would pass on to the maternal relative rather than a paternal relative. The Varanappalli temple near the place of Kayamkulam, still continues the practise of granting membership through the female line of dissent. The children of those females who are associated with the temple get membership because of the female family line,[13] the same not being applicable to the male members.

CONCLUSION:

From the above discussion it can be said that, the inheritance process by way of Matriliny is indeed a very progressive approach which has helped women greatly in developing a sense of freedom and self-evaluation. This custom rather than being repealed, as is being done in the existing scenario, should rather be used as a tool in bringing about further development of women. In my opinion, this can prove to be the strongest tool in curbing down the regressive traditions which still continue to provide hindrance in social and economic empowerment of women and pushes them towards misery.

[1] Conference On Legacies Of Matriliny, available at http://timesofindia.indiatimes.com/city/thiruvananthapuram/Conference-on-Legacies-of-Matriliny-in-Kerala/articleshow/36600568.cms (last accessed on 12^th September, 2017. 03:00 PM).

[2] Marumakattayam Practice and Current Status, available at https://www.scribd.com/doc/111362544/Marumakkathayam-HIstory-and-Practice (last accessed on 12^th September, 2017. 02:04 PM)

[3] Marumakattayam Practice and Current Status, available at https://www.scribd.com/doc/111362544/Marumakkathayam-HIstory-and-Practice (last accessed on 12^th September, 2017. 02:04 PM)

[4] Robin Jeffrey, Legacies of Matriliny: The Place of Women and the “Kerala Model”,  77 Pac. Aff.  4 647, 647-664.

[5] Robin Jeffrey, Legacies of Matriliny: The Place of Women and the “Kerala Model”,  77 Pac. Aff.  4 647, 647-664.

[6] Marumakattayam Practice and Current Status, available at https://www.scribd.com/doc/111362544/Marumakkathayam-HIstory-and-Practice (last accessed on 12^th September, 2017. 02:04 PM)

[7] Flavia Agnes, Family Law: Volume 1: Family Laws and Constitutional Claims, 38, 38-45.

[8] Modern Indian Literature, an Anthology: Surveys and poems edited by K. M. George, 380, 380-394.

[9] Matrilineal Form of Society, Kerala, available at http://www.indianetzone.com/45/matrilineal_form_society.htm (last accessed on 12^th September, 2017. 02:40 PM).

[10] Matrilineal Form of Society, Kerala, available at http://www.indianetzone.com/45/matrilineal_form_society.htm (last accessed on 12^th September, 2017. 02:40 PM).

[11] Robin Jeffrey, Legacies of Matriliny: The Place of Women and the “Kerala Model”,  77 Pac. Aff.  4 647, 647-664.

[12] The Kerala Act, 1976.

[13] Robin Jeffrey, Legacies of Matriliny: The Place of Women and the “Kerala Model”,  77 Pac. Aff.  4 647, 647-664.