Midweek Review

Cat's Eye
Women and case of Thesawalamai

Although women have become increasingly successful in creating space for themselves within the very masculine domain of law, it has to be acknowledged that their engagement with the law is vastly different to that of men. This is due to the fact that the law and legal processes are based on male norms and experiences and therefore tend to be exclusionary. Law also often validates the dominant discourse and silences alternate voices. Nivedita Menon states that "the very dynamic of law tends towards the fixing and universalizing of identity" whereby the legal discourse erases the particuliarities, ambiguities and contexuality. It would be useful to examine the ideal or typical citizen as envisaged by the law as it will enable us to understand why women amongst other groups are marginalized.

Who is the object of the law? Who is the "ideal citizen" envisaged by the law? The ideal is the Enlightenment man. Feminists put forward different reasons as to why the male body was chosen. Menon believes that it was due to the fact that the bodies of men were seen as "clearly bounded and solid", whereas female bodies were viewed as being "disorderly and penetrable and subject to cyclical changes"; their bodily processes were messy and challenged the idea of the closed and controlled body surface; and through reproduction, were divisible, suggesting the unlimitability of their boundaries. Thus they could never be the rational, indivisible, unambiguous individuals." The qualities that are valued in the "ideal citizen" are qualities traditionally associated with men- "ideal male citizens were rational, independent, self-directed, autonomous and cultural, in dramatic contrast to the dependent, emotional, natural, passive female". This man then was the ideal, which the law viewed as the standard. Behaviour, thoughts and actions of all were measured using this man as the ideal.

This leads us to conclude that the law is gendered as it accepts the construct as given. This is not to say that women have had no role to play in the definition of the "ideal man". In their position as the aberration, the deviant, they play a crucial part in shaping the ideal citizen as envisaged by law. Ngaire Naffine points out that the "characterization of public man, as a self-possessed and self-possessing subject, demanded the suppression of the fact that woman necessarily defined him (by establishing the boundaries of his being, by supplying the unreason to his reason, the passive to his active) as much as he defined her." It is therefore evident that the oppression of women and their relegation to the private sphere also serves a primary purpose without which the "ideal man/citizen" would be non-existent. The woman plays a powerful role as the subjugated that actually has the power to subvert the power and dominance of the subjugator.

Radhika Coomaraswamyís analysis of the Rule of Law will assist us in understanding the relationship between men, women and the law. She states that, "the Rule of Law, despite its pretensions of objectivity and neutrality, is, in the final analysis, also a system of power. It includes and excludes people, it disciplines and punishes and it fosters certain values and attitudes encasing them in a belief that they are time-honoured and eternal." This analysis is useful in attempting to understand the position of women within the legal system. Women have always been relegated to the "private sphere", although now writers such as Engle contest this notion. They question why this sphere has been tagged as "private", a label, which they believe contributes to the marginalization of women. The relegation of women to this particular sphere which is thought to be outside legal regulation and separate and distinct from the sphere in which public life takes place (the public sphere) robs women of any power or influence they might have in the public sphere. Their lack of power then excludes them from the sphere in which law is made and lives are regulated. They are denied the right to even make decisions that affect their lives. This is well illustrated by the effect of the law on the lives of women.

This leads us to question womenís engagement with the law and legal processes. As our above analysis has shown that the law views the woman as a weak object we should question whether women will be successful when they engage with the law in their own right with their distinctive qualities and differences being taken into account. This will be a difficult task, as when women attempt to undertake such a step they will lose their legal subjectivity. Naffine points out "women cannot be both distinctively women and legal subjects. For women to be recognized as women, they must relinquish their subjectivity and revert to their traditional status as manís other."

Thesawalamai and women

Thesawalamai can be used as an example to illustrate the disadvantages faced by women when they engage with the law, especially customary law. Thesawalamai is customary law that is applicable to the inhabitants of the Northern province as codified in the Thesawalamai and Matrimonial Rights & Inheritance Ordinance No.1 of 1911 as amended by Ordinance No.58 of 1947. According to the abovementioned statutes if a woman to whom Thesawalamai applies marries a man to whom Thesawalamai does not apply then she shall not during the subsistence of the marriage be subject to Thesawalamai. However, if a woman to whom Thesawalamai does not apply marries a man to whom Thesawalamai does apply then she shall during the subsistence of the marriage be subject to Thesawalamai. The woman does not have absolute power of disposition of her immovable property but requires written consent from her husband. The woman then is not viewed as an individual by the law instead her legal status is tied to that of her spouse. This protective and paternalistic attitude clearly illustrates that in the eyes of the law the woman is incapable of making rational decisions about the disposition of her property.

If the husbandís written consent is not forthcoming, section 8 allows the District Court in which the woman resides or in which the property to be alienated is situated, to dispose of or deal with such property without the husbandís written consent, i.e. the Court supplies the consent required by section 6. This is done if it is deemed that the husband is unreasonably withholding consent or is unable to give consent and the interests of the wife and children of the marriage require that such consent should be dispensed with. The husband cannot validly give general consent for future disposition as it is deemed that it would amount to the release of his protectorship, the purpose of the provision. Does this mean that in cases where the husband has disappeared the women have to go to courts to dispose of their property?

Property acquired during the subsistence of the marriage from the profits of the spouses is thediathetam. It is property common to both spouses, i.e. they are co-owners.

Thediathetam consists of:

a) property acquired for valuable consideration by either husband or wife during the subsistence of the marriage, such consideration not forming or representing any part of the separate estate of spouses

b) profits arising during the subsistence of the marriage from the property of husband or wife (separate property)

The husband during the subsistence of the marriage remains the manager of the Thediathetam property. He is regarded as the sole and irremovable attorney of his wife- it is thought that the wifeís persona "is merged with that of the husbandís". The husbandís power does not extend to donation but is limited to sale, mortgage or lease. This makes one wonder whether thediathetam should be viewed as common property if the wife does not have the power to deal or dispense? Sons inherited post-mortem, so if all daughters were already dowered the property of the deceased woman would revert to her parents and then to her brothers, i.e. the cheedenam, which was the sole property of the woman was diverted away from the female line to the male line.

These are but a few principles of Thesawalamai law that openly discriminate against women and rob women of the right to make decisions about their life and property. It is therefore evident that in the eyes of Thesawalamai women are deemed weak objects in need of protection.

Cultural Relativism vs. Feminism

While we call for legal reform to address the discrimination faced by women we should also keep in mind that women from besieged communities who might have been subjected to extensive state controls due to their race, ethnicity, class or a similar factor may take refuge in the private sphere of their ethnic/racial/class communities. Their reluctance to support legal reform that impacts on their particular communities highlights the conflict between individual rights and the rights of the community. While supporting diversity and right of communities to protect their culture we should ensure that the rights of women are respected and they have the right to make decisions that affect their lives and families.