Diga married daughter has no right to her father’s property- SC

30 September 2021 04:50 pm - 11 - {{hitsCtrl.values.hits}}

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The Supreme Court in a judgment delivered on Wednesday (29) determined that a Diga married daughter (when a woman is settled in her husband’s home) has no rights to her father’s property in accordance with Kandyan Law, a customary law in Sri Lanka.

There are two types of marriage under Kandyan Law. A Diga marriage is when a woman is given away and is settled in the home of her husband. A Binna marriage is one where the bridegroom is received into the house of the bride.

The Supreme Court three-judge-bench comprising Justice L.T.B. Dehideniya, Justice Preethi Padman Surasena, and Justice S. Thurairaja held that the third plaintiff-respondent (daughter of the original owner of the property) in the appeal application has not re-acquired the rights of a Binna married daughter when she returned to her Mulgedara (ancestral home) after the demise of her husband.

According to the facts of this case, the original owner of the land which was sought to be partitioned was one named Wickramasinghe Mudiyanselage Yahapathhamy lived in Hanthihawa, Halmillawewa. He was a person subject to the Kandyan Law and the land was a Paraveni (ancestral) land. Upon his death, six children including three plaintiff daughters inherited the land in equal share subject to the life interest of his widow Ranmenika. Ranmenika passed away in 1992. Thereafter the Plaintiffs instituted an action to partition the land in the District Court. However, the first and second defendant siblings claimed their father was a person who was subject to the Kandyan Law. They claimed that the Plaintiffs are daughters who married in Diga during the lifetime of their father and have as such forfeited their right to succession to the ancestral property.

Having considered the facts, the District Court had held that three Plaintiffs have entered into valid marriages prior to the death of Yahapathhamy in 1973 and the mere return by the Diga married 3rd Plaintiff Dolimenika to the Mahagedara upon the death of her husband does not entitle her to claim rights as a Binna married daughter.

Being aggrieved by this judgment, the plaintiffs filed an appeal and it was heard by the Provincial High Court of the North Western Province. The High Court held that the heirs of Yahapathhamy for the land that was sought to be partitioned were the third Plaintiff, first Defendant and the children of Ukkubanda (4th,5th and 6th defendants) and that they should inherit an undivided 1/3rd each from the land that was sought to be partitioned.

Being aggrieved by this decision the defendants filed an appeal in Supreme Court to have the decision of the High Court set aside. They claimed that High Court judge has erred in law by coming to the conclusion that Yahapathhamy Had readmitted third plaintiff Dolimenika as a Binna married daughter by allowing her to possess the land comprising of the Mulgedara.

After perusing the material relating to appeal Supreme Court observed that third plaintiff daughter was given in marriage under the General Marriage Ordinance in 1957 and after her husband’s death in 1972 after approximately 15 years of marriage she was allowed to live with her parents in her Mulgedara and continued to do so until her father’s death. Her claim is that upon coming back to her Mulgedara she acquired the rights of a woman under the Binna marriage.

"It is apparent that for the third Plaintiff to inherit her father’s property, her Diga marriage should have been converted into a Binna marriage as Diga married daughters have no right to their father’s property", Justice S. Thurairaja observed.

The Supreme concluded that the marriage of the third Plaintiff had not been converted into a Binna marriage. Accordingly, the Supreme Court inclined to allow the appeal of the defendants.

Kandyan law is applicable to Sri Lankans who are Buddhist and from the former provinces of the Kandyan kingdom. According to Kandyan Law, a Diga married daughter does not typically inherit the property of her father. Whereas a Binna married daughter retains her to succession after the marriage.

President’s Counsel Lakshman Perera with Counsel Thishya Weragoda, Shalini Fernando, and Piyumi Wickramage appeared for the defendants. President’s Counsel M.C. Jayaratne with Counsel M.D.J. Bandara and Nishani Hettiarachchi for the plaintiffs. (Lakmal Sooriyagoda)

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Comments - 11

Jay Jay Thursday, 30 September 2021 05:27 PM

its time we had one law for all citizens.

Borat Thursday, 30 September 2021 05:44 PM

So not only Muslim law need to change even kandy an law .

priyantha 77 Thursday, 30 September 2021 05:56 PM

We need one law for the country

Mohamed Thursday, 30 September 2021 06:15 PM

One law one country

ruwan Thursday, 30 September 2021 07:12 PM

like a tele drama

Concerned Thursday, 30 September 2021 08:02 PM

This law is ancient and as above there should be only one law. The kandyan law is long gone so please have one law for all citizens in this country.

S. P. Ramkumar Thursday, 30 September 2021 09:22 PM

One country have one law

Ahamed Friday, 01 October 2021 08:40 AM

Kindly refer to the Sharia Law and see how well women are respected and how equally the property is divided and shared among children.

Udaya Friday, 01 October 2021 04:49 PM

Certainly. Let the time-tested Kandyan Law, as practiced by generations, before the advent of the Europeans, prevail. One needs to study the provisions of Kandyan Law properly to understand how equitable they are. A daughter married in Diga while her father is alive stands to receive a share of his property in consideration of marriage. Having enjoyed same she cannot claim a further share of the father's estate if he dies intestate (without leaving a will). If the daughter did not receive any share in consideration of her marriage, then she can petition the Courts seeking a fair share.

Lanka Saturday, 02 October 2021 06:16 PM

Development in every area is a must. One law for everyone is a must. Make life simple and let the people lead a peaceful life.

J.M>Seneviratne banda Tuesday, 05 October 2021 11:33 AM

Most probably the law was that because the Binna married daughter and her husband were expected to look after the woman's parents . Now the parents are kept in aged care homes .

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Diga married daughter has no right to her father’s property- SC

Comments - 11

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