Notes
CHAPTER 4 The Alienable Rights of Women
In 1905, R. K. Muduliar, alias Maung Maung, had his right to his father’s estate contested by his cousin W. R. Vanoogopaul.1 According to the latter, Maung Maung was an illegitimate child who descended from two generations of illicit unions between Hindu men and Burmese women. Maung Maung’s maternal grandmother, Thu Za, Vanoogopaul pointed out, was “Burmese Buddhist,” not Hindu. The legal principle recognized by the British that there was no such thing as “Hindu by conversion” meant that Ma Gun, Thu Za’s daughter with her Hindu husband Narainsawmy Naidoo, was neither a legitimate child nor a Hindu. Maung Maung, the son of Ma Gun and “an orthodox Hindu” named W. V. Ramasawmy Mudaliar, was likewise illegitimate and not Hindu. Vanoogopaul, it would seem, had a watertight case.
However, the presiding judges reasoned that Thu Za, though Buddhist at the time of her marriage to Narainsawmy, was regarded as Hindu and brought up all her children as Hindus and married them to Hindus “according to Hindu rites.”2 The judges declared lawful the marriage between Thu Za and Narainsawmy and validated the Hindu status of Thu Za, Ma Gun, and Maung Maung.
A decade and a half later In August 1921, the Privy Council heard two consolidated appeals concerning the estate of a wealthy Indo-Burmese merchant Ohn Ghine (1858–1911).3 A respected member of Rangoon’s elite circles, he had led an illustrious life, not least as an elected member of the Rangoon Municipality, an honorary magistrate, recipient of the Companion of the Order of the Indian Empire and the title of Ahmudan gaung tazeik ya min (Recipient of the Medal of Honor for Good Service). He had even represented the province of Burma at the coronations of King Edward VII and Queen Alexandra in 1902.
Ohn Ghine had died in 1911 during a visit to England, leaving behind a will appointing his wife, Ma Yait, and daughter, Ma Noo, as trustees. One of his sons, Chit Maung, contested the validity of the will on the basis that his father was Hindu and, as such, did not have absolute testamentary power. Actually, the will was also invalid under the so-called Burmese Buddhist law. On the basis that the concept of a will was nowhere to be found in the dhammasat according to which inheritance among Buddhists in Burma was strictly intestate, the British colonial administration categorically disallowed wills for the Burmese Buddhist. The notion that Buddhists in Burma were prohibited from disposing of their property and disinheriting rightful heirs by will was hardly established fact. The colonial administration debated on multiple occasions (1881, 1888, 1904, and 1917) the question of whether testamentary power should be conferred on Buddhists. Notwithstanding historical evidence of testamentary alienation of estates by Buddhists, each judicial debate determined that Buddhists in Burma had no capacity to make a will. This made Burmese Buddhists the only “religious community” denied the power to testate because Chinese Buddhists, on the account of a “Chinese custom” of testamentary power, had been granted an exception to this ruling—a point to which I return later in the section.4
Had Hindu law been applied to Ohn Ghine’s estate, as Chit Maung requested, then Ma Yait and Ma Noo would have been entitled only to maintenance and only until their (re)marriage, with the estate passing to his sons for administration. Under Burmese Buddhist law, on the other hand, Ohn Ghine’s estate would have been divided among the surviving wife and children. The issue to be decided therefore was the religious status of Ohn Ghine.
It is worth noting that when questioned in 1907 and in his capacity as a municipal commissioner of Rangoon by the Royal Commission upon Decentralization in India, Ohn Ghine had self-identified as a “Hindu-Buddhist” native of Burma.5 And in theory, the “personal law” of an individual was determined confessionally—that is, by the person’s professed religious affiliation. Predictably, colonial jurists discounted this hyphenated religious identity and went about figuring out Ohn Ghine’s one and only true religion.
All parties involved agreed that Ohn Ghine was “as much Burmese as Indian by blood, and in dress, language and manner of life he was more Burmese than Indian.” He came from an Indo-Burmese family whose members professed to be Hindus and yet also “worshipped at the pagoda, fed the pongyis [monks] and observed Buddhist fasts and festivals.” As Viscount Haldane remarked, Judge Robinson, who first tried the case, had been “right in thinking that Ohn Ghine observed to a certain extent the rites and ceremonies of the Hindu religion, but that he also observed and followed the Buddhist religion to a great extent and was far from being an orthodox Hindu.”6
No one considered Ohn Ghine “an orthodox Hindu.” But was he Hindu enough to warrant the application of Hindu law to his estate? If not, could he be considered a Buddhist instead? The lawyer for Ma Yait portrayed Ohn Ghine as Buddhist, emphasizing that he had sent his sons to a monastic school for Buddhist instruction and took a leading role in supporting several notable Buddhist projects. Ohn Ghine had been an active member of the Maha Bodhi Society, founded in 1891 for the promotion and propagation of Buddhism in India and beyond, and the Rangoon-based International Buddhist Society, founded by Britain’s first Buddhist monk, Ananda Metteyya (1872–1923).7 In 1900, he sent a letter to the governor of Madras on behalf of his “Buddhist Co-religionists,” requesting the return of certain Buddhist relics held at the Madras Museum to be placed in a shrine that he was building in Rangoon. The following year, he gave an address on behalf of the Buddhist community in Rangoon to the viceroy, Lord Curzon, and traveled with fellow Burmese pilgrims to the temple of the Sacred Tooth Relic in Kandy, Lanka (Ceylon). As recently as 1907, he had written to one of his sons in England admonishing him to “daily think of the Buddha.” Three years later, his son Chit Maung married “a Burmese girl, according to Burmese custom”—a fact that Justice Twomey declared “a serious lapse from rectitude for a Hindu,” though he explained away this “serious lapse” as typical of “the general laxity” of marriage customs among the Hindu Indo-Burmese, attributing to the group the laxity the British had come to associate with Burmese marriage laws and customs.8
The evidence presented by Ma Yait failed to convince the judges that Ohn Ghine was Buddhist. His “liberality to Buddhist monks and his liking for Buddhist prayers and practices,” as the judges put it, did not amount to a “clear renunciation” of the Hindu faith.9 They merely confirmed the conventional wisdom among British colonial officers that Hindu immigrants in Burma, to quote from the census report of 1891, “very often become Burmanized and adopt Burman names, and no longer remain Hindus in the strict sense of the term.”10 The judges underscored Ohn Ghine’s support of the Hindu temple in Rangoon, for which he served as one of the trustees, as well as the fact that Ma Yait herself chose to observe Hindu rites at her father’s cremation, though she also invited Buddhist monks. From the perspective of the judges, Ohn Ghine had “seriously lapsed” not only as a Hindu but also as a Buddhist, for he had not sponsored the temporary ordination (shin byu) of his sons as monks. The British considered this rite of passage, in which a son enters the monastery as a novice, as synonymous with Burmese Buddhism and “by far the most important event in any Burman’s life.”11 In determining whether individuals should be subject to Burmese Buddhist law, British judges invariably asked the question of whether they had performed the shin byu of their son(s). Ohn Ghine had not.
Still, the Privy Council determined that Ohn Ghine could not be regarded as Hindu because his “Hindu-ness” was so divergent from “pure” Hinduism as to render him non-Hindu.12 Refusing to declare the late Ohn Ghine a Buddhist, the council decided to apply to his estate the Indian Succession Act (of 1865). The so-called rule of justice, equity, and good conscience, this was an act that a colonial court could deploy when it determined that there was no other law that could be applied to a particular case (more on the Indian Succession Act to follow).
Unlawful Conceptions
As these cases about Hindu-Buddhist marriages and conversions demonstrate, the civil courts had to answer for the confusion created by the colonial system of personal law: What was the status of marriages and births that transgressed religious categories and legal jurisdictions? This judicial uncertainty had made intermarriage and mixed births susceptible to two types of interconnected legal challenges: the legality of the marriage and the legitimacy of the birth(s); and the personal law to be used to govern the affairs and property of the individuals, spouses, or families in question.
Colonial jurists maneuvered around these legal questions rather than offer straightforward answers. They accepted the conversion of Buddhist women to Hinduism to make way for lawful Hindu-Buddhist marriages, contravening their own position on the impossibility of “Hindu conversion,” as in the case of Mudaliar. Still, there were many cases where the court dismissed outright the legal validity of relationships that the litigants claimed were matrimonial. In 1906, when Shwe Me was sued by her Hindu husband, Doramoswami, the two had lived together for sixteen years and had six children. But Doramoswami argued in court that because she was not Hindu, she was not his lawful wife, unlike his wife in India. He successfully denied her any right to his property.13
In 1914, Ma Myit similarly found her marriage to Rathna Pillay declared unlawful, though in her case, the lawsuit had been filed not by her husband but by a firm seeking to confiscate a mortgaged property owned jointly by her and Rathna. The district court ruled that although Ma Myit and Rathna “did not live in wedlock,” they should nevertheless be treated as a lawfully married couple because “they considered themselves partners in life as well as business, as in the case of a Burmese family.” Unmarried the couple may be in the eyes of Hindu law, but according to Burmese Buddhist customary practice, the district court argued, Ma Myit and Rathna were wife and husband, and the latter could legally mortgage their joint property without Ma Myit’s consent. The Chief Court of Lower Burma disagreed, rejecting the notion that the couple should be regarded as “a Burmese Buddhist husband and wife.” It insisted that Rathna was not Buddhist and that more than cohabitation was required for him and Ma Myit to be lawfully married. “The tie of marriage did not exist between them,” Justice Hartnoll declared: “They could separate at will and there was no binding contract between them. They did not enjoy the advantages of marriage nor were they bound by the obligations of marriage.”14 To Ma Myit’s relief, the judgment enabled her to retain control of her property.
The predicament of the legality of intermarriage was by no means confined to Hindu-Buddhist relationships. Thu Kha nearly suffered the same fate as Shwe Me in 1915 when her Chinese husband, who had deserted her and their two children, claimed that she was not his wife but merely a mistress.15 Saw Maung Gyi had refused to pay maintenance and hoped that declaring Thu Kha a mistress would relieve him of his financial obligation as husband and father. Fortunately for Thu Kha, Saw Maung Gyi’s own witnesses, including his relatives, recognized the two as man and wife. Chit May had less considerate relatives. Upon the death of her zerbadi husband, her mother-in-law attempted to take possession of her late husband’s estate on the basis that Chit May was never a lawful wife and her children were illegitimate. The presiding judge ruled in Chit May’s favor, citing the strong evidence of her conversion to Islam as well as “cohabitation and repute” in the case.16
As the case of Chit May suggests, cohabitation and repute, which were sometimes deemed sufficient criteria for establishing the legality of Sino-Burmese and Hindu-Buddhist marriages, were not adequate proof of marriage between a Muslim and a Burmese. If the reader will recall, Judges Wilkinson and Quinton, who decided the 1875 Muslim-Burmese divorce case discussed in chapter 2, emphasized that such marriages were “binding” and “honorable” so long as they had been celebrated according to Muslim rites and the wife had “renounced her own religion and embraced that of her husband.”17 Recall also that Mi Shwe Ywet, the Burmese wife in the case, maintained that she “never was anything else than a Buddhist.” But the judges ignored her confession, granting her request for divorce because she had apostasized. According to the British judges, formal conversion to Islam was requisite to a lawful marriage between a Muslim groom and a Buddhist bride; and the bride was Muslim for all intents and purposes unless and until she formally renounced Islam. What she really thought or felt about Buddhism or Islam was immaterial. British judicial authorities time and again refused to question the Muslim status of a woman who, they acknowledged, had converted only to marry a Muslim man, “whilst at heart she remain[ed] the whole time a Buddhist.”18
The legal obsession with conversion presented both a challenge and an opportunity for the spouses in Muslim-Buddhist marriages. Many Burmese women took advantage of the apostasy provision to annul their marriage, like Mi Shwe Ywet.19 The conversion requirement proved to be advantageous in a different manner in the case of Ma Pu. In 1892, her Muslim husband Mouna Maung Gale sued her lover Nga Pale for adultery. Mouna Maung Gale characterized Ma Pu as an observant Muslim whom he had married by offering money to the mosque and giving matrimonial consent in the presence of witnesses. No one denied that Ma Pu had an amorous affair with Nga Pale. Yet Ma Pu averred that she never converted to Islam and was therefore never married to Mouna Maung Gale. To the district magistrate who adjudicated the case, that Ma Pu and Mouna Maung Gale “lived together as man and wife” was beyond dispute. Much to his chagrin, however, the judge conceded that her relationship to Nga Pale could not be considered adulterous because she had never converted to Islam.20
Judicial conflicts and contradictions over the legal status of mixed marriages and births served as strategies for evading marital commitments and liabilities and contesting property ownership and devolution. Consequently, many women and men in Burma, having lived and raised children together over an extended period with their partners of a different batha, suddenly found their status as wife or husband challenged by the very individual they had considered their spouse or by the relatives they had cared for as in-laws.
When colonial jurists were asked to adjudicate only the question of the religious status of individuals whose legal jurisdiction was ambiguous, as in the case of Ohn Ghine, the Indian Succession Act provided one logical decision. The judges concluded that Ohn Ghine was too assimilated to qualify for the application of Hindu law but not enough to be deemed Burmese Buddhist. They thus released Ohn Ghine from the grips of personal law.
Yet colonial jurists rarely invoked the Indian Succession Act. Never defined with any precision, the law referred to presumptively universal notions of “justice, equity, and good conscience” as understood by British jurists. It created a loophole in the system of personal law through which British judges could apply the rule, if not the technicalities, of English common law: judge-made law based heavily on judicial precedent, adopted in the United States and many other colonies.21 That they resorted to it only infrequently might have signaled their fear that the judicature would be seen as sidestepping its own rules to interfere in the personal affairs of the colonized. Colonial jurists did not refrain from making legal incursions into the personal domain, however. They did so using the legal principle of coverture: the idea that a wife was covered by the legal identity of her husband for the duration of the marriage, and her person, property, and labor were subject to his ownership.
Covert Rule of Coverture
Throughout the half century following the annexation of Upper Burma, British judges characterized the zerbadi and Muslim communities in Burma as “imbued with Burmese ideas” and “under the influence of Burmese customs,”22 and the Sino-Burmese as conforming “more or less to Burman Buddhist practices in subscribing to religious works and festivals.”23 The chief justice who ruled in a landmark Sino-Burmese inheritance case asserted that “it must not be lost sight of that Chinamen have come and settled in Burma in growing numbers since the first occupation of the country,” and “more than any other race they have inter-married and joined in the social and religious life of the people of the country.”24 But the alacrity with which British legal experts generalized Burmese influences on Chinese and Indian immigrants and their descendants contrasted with their refusal to allow Chinese, Hindu, Muslim, Sino-Burmese, and Indo-Burmese subjects to have recourse to Burmese Buddhist law. In not a single case discussed above did British judges allow this to happen. They would sooner overturn decisions by district courts—most likely presided over by Burmese judges—than allow the application of Burmese Buddhist law to the personal affairs of these subjects, as in the aforementioned case concerning the joint property of Ma Myit and Rathna Pillay.
Conversely, British jurists routinely subjected Buddhist women and their property to the personal laws of their husbands. The story of Ma Myit, as told by her children who were suing each other for inheritance, offers an illustrative example. Ma Myit had married Sit Shan around 1881 and had five children. Sit Shan also had a Chinese wife, Kyi Ya, with whom he had two children. Upon his death in 1902, his estate was divided “in accordance with Chinese customary law,” leaving the three sons equal share and the widows and four daughters nothing. After Ma Myit passed away, her daughter Ma Sein decided to sue her brothers for a share in the estate of her father on the grounds that her mother was “Burmese Buddhist” and, as such, was entitled to a portion of her father’s estate, which, in turn, would devolve to all five of her children.
The court ruled that Sit Shan’s estate had been partitioned lawfully, not because “the Chinese Customary Law should apply to the estate of every Burmese woman who was married to a Chinaman” but because Ma Myit had “adopt[ed] her husband’s form of religion, becoming, to all intents and purpose, a Chinese Buddhist.” What convinced the two judges that Ma Myit had become Chinese Buddhist?
She mourned for him for the period of three years prescribed by Chinese custom, and she put her children, as well as herself, into the mourning dress which is customary among Chinese and not among Burmese. She did not marry again, the second marriage of widows, though permitted, being regarded as disreputable by the Chinese. She sent both her sons to China to be educated. She married one of her two daughters to a Chinaman and she refused her consent to appellant’s [Ma Sein’s] marrying a Burman. When she died, she was buried in the Chinese cemetery in a grave of Chinese pattern and with the usual Chinese monument.25
“It is true that her burial in the Chinese cemetery may not have been due to any wish she had herself expressed,” Judge Heald acknowledged but added that “it seems to me to show that she was regarded by the Chinese community at Pyapon as one of themselves.” He concluded that it was “natural that Chinamen who are Buddhists, living in Burma, should to some extent, observe the religious usage of their Burmese Buddhist neighbours and much more natural that their Burmese wives should do so.” There was no doubt in his mind that both Sit Shan and Ma Myit observed Burmese and Chinese customs. But he also had no doubt that Ma Myit “regarded herself as a Chinese Buddhist and attached herself to the Chinese community, to which her husband and her sons and the son-in-law, with whom she lived, admittedly belonged.”26
That Ma Myit sent her sons to China, forbade one daughter from marrying a Burmese man and married another (Pan Nyun) to a Chinese man, and adorned mourning dress, an atypical practice in Burma, is indeed indicative of her effort to “Sinicize” herself and her family. But we cannot know whether, and to what extent, she “regarded herself as a Chinese Buddhist,” as the judges asserted. It is not difficult to see that Ma Myit had good reason to make overt gestures of “Sinicization”: she was not Sit Shan’s only wife, and the other wife was Chinese. Ma Myit might have reckoned that public performance of a “Chinese” version of herself might be the most effective strategy of buttressing her status in the family and winning a greater share of its fortune—for her children, if not for herself—when the question of inheritance and succession arose. She, like Kyi Ya, was excluded from Sit Shan’s estate, as were her daughters. But her two sons did inherit alongside the son by Kyi Ya. This is an important detail. Recall the case of Choa Chuan Ghiock, discussed in chapter 2, who had wives and children in both Rangoon and Singapore. He left much of his estate to his sons by his Chinese wives in Singapore, excluding from his will not only all his daughters but also his Sino-Burmese son in Rangoon. If not for Ma Myit’s efforts at Sinicization, her sons too might have been precluded from inheritance on account of her Burmeseness.
Such calculations seemed to have fallen beyond the purview of Justices Heald and Lentaigne, who assumed that Ma Myit’s subjectivity had been transformed through her marriage to Sit Shan. Perhaps they could not relate to the precarious position in which wives of polygynous men like Ma Myit found themselves. Perhaps they were also reluctant to apprehend women as resourceful and strategizing (legal) agents. Most certainly they were governed by and governing with the doctrine of coverture—well and alive in Britain until the 1880s—that denied married women a separate legal existence from their husbands.27 In English common law, marriage was premised on the idea that the conjugal couple was a unitary entity whose sole representative (economic, political, and legal) was the husband. The wife could neither own nor dispose of property; she could not earn money, contract a debt, or sue or be sued; she could not choose her own place of residence. In short, she was obligated to obey her husband. Propertied widows were deprived of control over family wealth; they received allowance paid from the interest on the deceased’s estate while fiscal agency was invested in the hands of sons. This pattern of property distribution and devolution ensured that subsequent marriages that the widow might contract would not diminish the principal of the estate. Colonial authorities transposed this legal doctrine of women’s dependent status and legal incapacity to India under the cover of honoring Hindu and Muslim laws, as they limited the propertied rights of women.28
The British judges’ gendered presumptions about marriage, religious agency, and legal subjectivity were also evident in the way they explained the source of Burmese influences on Chinese and Indian men. According to them, it was “natural” that these men gravitated toward the customs of the country in which they had settled. They discounted the influence that the Burmese (or Sino/Indo-Burmese) wives and relatives of the migrant men and their descendants exercised over family dynamics, rituals, and resources.
Exemplary of this pattern was a case presided over by Justice Fox involving the adoption of a Burmese child by a Sino-Burmese couple. The plaintiff, Yu Lwai, claimed that he was the only lawfully adopted child of and heir to the deceased couple Wun Pain Wain (also spelled Wun Pein Hein) and Ma Phee, who also happened to be his uncle and aunt. As it turned out, however, the couple had adopted a Burmese girl, Ma Yin, in 1896, a full decade before they adopted Yu Lwai in 1906.
Justice Fox found extraordinary the decision by Wun Pain Wain to adopt a Burmese girl who belonged neither to the Chinese or Sino-Burmese community nor to his extended family. Wun Pain Wain was the son of a Chinese father and a Burmese mother and was “brought up to follow Chinese customs,” Justice Fox emphasized; and both his wives, Ma Phee and Ma Pwa, were Sino-Burmese.29 “If Wun Pain Wain was strongly imbued with traditions and feelings of his father’s race,” he pondered, “one would certainly have expected him to have adopted the plaintiff who is the second son of his elder brother.” He continued: “It is remarkable however that his first adoption was of a girl, and that it was clothed with a prominent characteristic of one form of adoption amongst Burmese, namely, a declaration that the child should have rights of inheritance. This points to Wun Pain Wain not being so strongly imbued with the necessity of having a son as the ordinary childrenless [sic] Chinese married man is said to be.” Justice Fox was puzzled by the names of Ma Yin’s parents, which, as registered in municipal records, seemed “purely Burmese.” “It is remarkable,” he noted once again, “that one who held himself out as a Chinaman should adopt the child of pure Burmese parents.” He never raised the possibility that Ma Phee, not Wun Pain Wain, may have been responsible for the decision to adopt a girl—and a Burmese one—and make her heir. Or perhaps Ma Po, his Burmese mother who was alive at the time of Ma Yin’s adoption, had a say in the choice of the adoptee. Justice Fox concluded, rather, that “Wun Pain Wain had leanings towards the Customs of the country in which he was born and bred.”30
The repeated pronouncements on the Buddhist or Burmese “leanings” of Chinese, Hindu, Muslim, Sino-Burmese, and Indo-Burmese men—such as visits to pagodas, donations to monasteries, shin byu of male relatives, and adoption of a daughter—made plain what the British jurists would not acknowledge: Burmese women shaped the lives and legacies of mixed marriages and families in palpable ways that challenged the ossified colonial image of the presumptively patriarchal Oriental family. One final story about adoption and inheritance lets us unpack just how flawed were such colonial beliefs about women and Oriental families.
In 1919, Lim Gaik Kin, better known as Margaret Lim, married Chan Chor Pine, the middle son of the wealthy Chinese merchant Chan Ma Phee, mentioned in chapter 2. Margaret’s Sino-Burmese father, Lim Chin Tsong, was arguably the only Chinese businessman in Burma at the time more successful than Chan Ma Phee. An agent of the Burmah Oil Company who turned shipping magnate, Lim Chin Tsong was an influential member of the Committee of the Kheng Hock Keong (Rangoon Hokkien Association), a government-recognized advisory board, and the only appointed Chinese member in the Legislative Council from 1909 until 1922. Only a year before Margaret’s marriage to Chor Pine, he had arranged the marriage of his son Lim Kar Gim to Khoo Shwe Lin of the most powerful Hokkien-Malay “Khoo” family in Penang. In Rangoon, too, and through the marriage of his eldest daughter, he united the two most prominent and affluent Hokkien-Burmese merchant families in Rangoon.
When Chor Pine died in 1933, he and Margaret were childless. Just eleven days after his death, Margaret adopted, on behalf of her deceased husband, Chan Cheng Leong—better known as Georgie Chor Khine—who was the younger son of her brother-in-law, Chan Chor Khine. She appointed him the sole heir to the estate of her late husband. “Such an adoption is said to be highly desirable, if not imperative,” the presiding judge observed, “for a Chinaman who dies without male issue in order that the ancient and traditional rites of ancestral worship might continue to be performed in the family of the deceased.”31
Were the endogamous marriage of Margaret and Chor Pine and the posthumous adoption of Georgie Chor Khine cultural imperatives? Perhaps. But it is just as likely that the main objective of the marriage was the consolidation of the businesses, wealth, and social status of two powerful Sino-Burmese families. That the adoption too was not the result of some ancient Chinese custom is suggested by the records of the lawsuit over Margaret’s estate. According to her younger sister Iris, Margaret adopted Georgie “under duress” by her brother-in-law Chor Khine.32 Chor Khine was not someone who could be dismissed. He had succeeded Ma Phee, becoming the head of the Chan family and business. He had also become the representative of the Hokkien community in Rangoon, nominated by the Committee of the Kheng Hock Keong as its representative on the Legislative Council (1928–1932). If Chor Khine insisted that Margaret adopt his son Georgie, chances were, she had little choice. She could not prevail upon her natal family to intervene because the Lim family, once a powerhouse, was in dire straits. Her father had filed for bankruptcy in the 1920s. While evading debt collectors, he was found dead in his home, prompting suspicions of suicide.33
As it also turned out, Chor Khine had hastily and clandestinely executed another adoption on the same day that Margaret registered Georgie as her late husband’s adopted son: an adoption by Georgie, who was himself childless, of his nephew Chan Eu Ghee. In so doing, Chor Khine ensured that his deceased brother’s wealth remained within the Chan family and out of the reaches of the Lim family.
But not for long. In 1936, just three years after the adoption, Georgie signed a release registering that he no longer was an adopted son of Chor Pine—and never of Margaret—and waived “all claims to the assets, moveables and immoveables forming the estate of Chan Chor Pine in favour of the Releasee (Margaret Chor Pine).”34 Why? Georgie had sold off Burmah Oil Company (BOC) shares belonging to the estate of Chor Pine without Margaret’s approval. In protest, she revoked the adoption. If leaving a male heir to oversee ancestral worship was the overriding concern, why was the adoption revoked, and why was no other male Chan family member adopted in lieu of Georgie? And why was Margaret not concerned with having an heir herself? She never adopted Georgie, as the initial adoption document and Georgie’s subsequent declaration of release made clear.
This legal tussle suggests something of the financial, familial, and communal authority and influence that Margaret wielded. A childless widow only five years older than Georgie, Margaret somehow managed to compel him to void the adoption and install her as the sole administrator of her late husband’s estate despite the fact that he was, as the legally appointed son and sole heir, fully within his rights to do what he did with the BOC shares. The measures that Chan Chor Khine took to limit Margaret’s ability to access and control her late husband’s estate likewise attest to his respect for her wit and power.
It is possible that Margaret just got lucky. Chan Chor Khine was no longer alive in 1936; he had shot himself in 1934. And perhaps the Chan family took mercy upon her and her natal family, who had fallen from grace. But I think it is more likely that Margaret navigated the gendered protocols of law and family successfully to secure her propertied rights and privileges as a widow.
The Colonial Alibi
Historical scholarship on family law, slave law, and plural legal jurisdiction over the last three decades has revealed that the basic function of law, whether in colonial or metropolitan contexts, is to configure complex social hierarchies while masking its operation as a means for calibrating political and economic prerogatives.35 In the United States, for example, miscegenation laws, purportedly about the unnaturalness of interracial marriage and the protection of white women, were intended to secure the propertied, patriarchal rights of white men and to defend white supremacy against challenges by Native Americans, African Americans, and Asian Americans.36
The British in Burma, too, created a legal labyrinth that obscured how their regulation of interAsian intimacies shored up patriarchal rights to property and family and undercut women’s rights even as they claimed to protect the autonomy of individuals from family and community. Against evidence to the contrary, the colonial rulers determined that intermarriage entailed outmarriage for Burmese Buddhist women who were presumed to have married out of their own religion and law and into the patriarchal religions, families, and communities of their spouses. Allying with subjects who asked to exempt their family and property from the jurisdiction of Buddhist law, they pitted minority rights against indigenous rights along gender lines—as Chinese, Muslim, and Hindu patriarchs’ rights against Burmese Buddhist women’s rights—to alienate women of their property and personhood. The colonial alibi for this patriarchal alliance and consolidation were the Burmese Buddhist women themselves whom the British jurists typecast as consenting partners and willing agents in their own alienation—alienation in the legal meaning of the transfer of property and the social sense of estrangement. Colonial legal experts camouflaged their authorization of patriarchy as the imperial protection of the rights of religious minorities and of women’s capacity to consent to intermarriage and conversion.
Feminist historians have examined the many ways in which the colonial, chivalric ideology of “white men saving brown women from brown men” legitimized European imperialism.37 The plight and suffering of native women and girls at the hands of their own men and their patriarchal “tradition”—the private manifestation of Oriental despotism—was at the front and center of colonial representations of the Orient as Other; while the “uncivilized” custom of polygamy was reported to be the norm among all Oriental races and religions, Hindus were distinguished by child marriage and sati (widow immolation) and Muslims by the institutions of pardahnasin (a woman who observed seclusion and lacked the ability to act as her own economic agent) and talaq (“repudiation,” or the unilateral male right to divorce).38 Paradoxically, and reflecting the Janus-faced nature of imperial assimilation, these othered practices that represented the ostensible targets of European civilizing missions were exempted from imperial legal intervention. Oriental despots were to be eliminated in the so-called public realm of politics and the economy. In the so-called private domain of marriage and family, however, Oriental patriarchs would be allowed limited power and autonomy. The colonial judiciary dismissed diverse family structures, marriage practices, and competing interpretations of law to strengthen the legal basis for heteronormative, male-dominated family regimes and weaken the claims of women to inheritance as daughters, wives, and widows—all under the guise of respecting local traditions in religious and family matters.39
Interestingly, the British took exception with the Burmese. Burmese Buddhist laws and customs, British officials praised, were free of the social evils common among other Oriental societies. For example, the judicial commissioner and legal scholar John Jardine, while granting that Burmese Buddhist law recognized the husband as “the lord of his household” and of his wife, marveled at the Burmese wife’s “wonderful facilities for terminating the marriage whenever she so desires.” He rendered incomparable this “liberty … conceded in so full a measure to the married woman,” unlike patria potestas (the Roman law of “paternal power” over daughter and wife) and “unknown to the Hindu law.”40 Also writing in the late nineteenth century, another British officer in Burma proclaimed: “Marriage does not confer upon a husband any power over his wife’s property, either what she brings with her, what she earns, or what she inherits subsequently; it all remains her own, as does his remain his own.” He added that women in Burma had always had “freedom from sacerdotal dogma, from secular law,” and that “in no material points, hardly even in minor points, does the law discriminate against women.”41
Writing a decade later, another colonial officer observed that the reason it was often said that “the women do most of the hard work of the country” was “not because they are the slaves of their husbands” but rather because “they occupy a position of independence and responsibility.” He echoed his predecessor’s views:
Not only do sons and daughters inherit equally from their parents, but a married woman has an absolute right to dispose as she pleases of property acquired or inherited by her either before or after marriage. She is usually a partner in her husband’s business, and as such has just as much right to sign for the firm as he; but she may have a business of her own, with the proceeds of which he cannot interfere. Even in matters in which she has no part, she is usually consulted before an important step is taken.42
Yet another British officer wrote in his “handbook” on Burma that whereas a Japanese wife “treats her husband as an idol,” the Burmese wife treats her husband “as a comrade” and “is far ahead of her lord in the matter of business capacity by the way in which she rules the household without outwardly seeming to exercise any authority.”43 The British thus held up the Burmese Buddhist woman as the rights-bearing autonomous individual idealized by the British political discourse of liberalism. In so doing, British officers neglected the nonexistence of women’s rights over their own body. The dhammasat did not recognize marital rape. As wives, women had no right to withhold consent from their husbands.
That a woman possessed ownership over anything but her own body reveals not only the myopic nature of the British discourse of Burmese Buddhist law but also something about the function of law, property, and gender in Buddhist societies. As the work of D. Christian Lammerts has suggested, autonomous control over property brought into and acquired during marriage enabled women to materially support the sangha.44 Women who had no sons, biological or adopted, or surrogate kinsman (or kinsmen) to shin byu could still perform the meritorious deed of donating property to the sangha and contributing to the propagation of the teachings of the Buddha. Far from confirming gender equality or the liberty of women, this legal-property regime was predicated on the incapacity and dependency of the female person.
But the British admiration for Burmese Buddhist law was overwhelming. So much so that they conveniently excused the fact that polygyny remained legal under Burmese Buddhist law by characterizing it as a form of marriage that no longer had social sanction. As a judge on the Chief Court of Lower Burma put it: “It is not forbidden to a Burman Buddhist to have two wives at the same time; but it is universally conceded that the leading principle of Buddhism is rather monogamy than polygamy, that polygamy is rare and that it is considered disrespectable.”45
When British judges had the choice of applying this “liberal” Burmese Buddhist law to subjects who straddled religious and racial categories, they refused. And when they had the opportunity to apply it as the personal law of Burmese Buddhist women with “non-Buddhist” or “Chinese Buddhist” partners, they resisted. In rhetoric, they abhorred what they took to be the subjugation of women under Oriental laws and praised what they regarded as the incomparable independence of Burmese wives. In practice, they refrained from constraining the patriarch’s right to put his house in order. Far from “saving brown women from brown men,” white liberal imperialists allied with brown men who appealed to the colonial state for immunity from Buddhist law to circumvent the established legal capacity and independence of Burmese women. Some men convinced the colonial jurists to, furthermore, transfer their female kin out of the jurisdiction of Buddhist law into that of Chinese, Hindu, or Muslim law against the wishes of the women. Akin to Arab mercantile elites in the Straits Settlements who weaponized personal laws against their spouses to protect their businesses and property, such individuals abetted the colonial state in the consolidation of colonial jurisdiction and displacement of indigenous forms of power and authority.46 This patriarchal alliance between British imperialists and their colonial subjects created a legal enclosure that systematically alienated Burmese women.
When brown men challenged, rather than abetted, this alliance, colonial jurists blocked them from having recourse to Buddhist law. It was virtually impossible for subjects with Hindu, Muslim, or Chinese agnatic kin to escape their patrilineal personal status through religious conversion or intermarriage. Personal laws were nominally based on religious affiliation but were practically determined by ties of patrilineal filiation. In this sense, and as Judith Surkis observes in her study of Muslim law and personal status in French Algeria, religious personal status was “jus sanguinis with a religious name”—except in the case of the Burmese Buddhist, who could alter their personal status through conversion and intermarriage.47 As we have seen, colonial jurists subjected Burmese Buddhist women, on the account of their intermarriage and conversion, to the jurisdiction of their Hindu, Muslim, Indo-Burmese, Sino-Burmese, or Chinese spouses. When the Burmese Buddhist wife failed to prove conversion, jurists declared legally null and void the marriage, depriving the wife of legal claims to the estate of her husband and children.
In other words, colonial judicial experts protected a patriarch’s rights to property and family. They curtailed the women’s marital and property rights by routinely moving Burmese Buddhist women out of what they had codified as a bilateral family-property regime and into the jurisdiction of what they essentialized as patrilineal family-property regimes (i.e., Chinese, Hindu, and Muslim laws). This setup channeled property and family along gender-religion-race divisions, away from Burmese Buddhist women toward men of foreign status. Colonial law and its arbiters facilitated the very process that the Konbaung administration legally prohibited: the removal of property, including wife and children, by immigrant subjects and other sovereign powers. The case of Burma provides a uniquely vivid illustration of the penchant of colonial jurists for licensing patriarchal legal-family-property regimes and undermining what they themselves hailed as the exceptional rights of Burmese women—all the while proclaiming themselves to be defenders of the rights-bearing autonomous individual.
Colonial jurists were neither uniformly nor unfailingly determined to observe this scheme. The roundabout ways in which they dealt with the challenges of personal law, passing judgments that contravened judicial norms, may have signified their willingness to—and colonial law’s ability to—accommodate the particularities of individual cases. In fact, recent scholarship on colonial law, in British India in particular, has tended to emphasize its malleability, if also its violence and unjustness.48 What gave law its power as a technology of governance, according to this body of work, was the flexible framework of plural legal jurisdiction and its contestation by colonial subjects. The lack of clarity over the criteria for determining what kinds of marriage and family qualified as “modern” fueled, rather than deter, efforts at marriage and family reforms, such as the outlawing of polygamy and the legislation of age of consent in the nineteenth and twentieth centuries. The inconsistencies of colonial judicial rulings may also speak to the anxieties the jurists had about what, in their mind, amounted to a complete overhaul in the legal personhood of a woman when she was removed from the jurisdiction of Burmese Buddhist law: from a self-possessed, autonomous, propertied individual to an incapacitated dependent. This might have haunted colonial authorities who imagined themselves to be liberal, paternalistic rulers.
There were also occasions where colonial jurists were unable to obstruct the will of Chinese, Hindu, and Muslim men who had arranged to transmit property to their wives or daughters, even adopting daughters instead of sons with the intention of making them heir to their estate. Such cases baffled the jurists, as we have seen. We have also seen that colonial jurists were willing to declare many an intermarriage unlawful, as a corollary effect of which the Burmese Buddhist wife retained her own personhood and property. Such rulings, however, came at a price. Colonial law would let Burmese Buddhist women hold on to their property or their marriage, but not both; it would recognize either their religious belonging or their matrimonial tie, but not both. From this vantage point, there was little ambiguity or flexibility in colonial law and justice.
Propertied women like Auntie Rosie’s grandmother Ma Galay may have discerned the changing realities of laws governing property and family. Muslim women, like Burmese Buddhist women, had rights to inherit and control their own property according to Islamic law—rights that the British chiseled away under their covert implementation of coverture. A court case about a young zerbadi widow of an elite Muslim man in Mandalay, like Ma Galay, suggests that women like them apprehended this legal enclosure.
E Khin was sixteen years old when she wed Haji Po Tha, a wealthy Mandalay zerbadi nearly four times her age, around 1913. He was twice married, widowed, and childless. Few Muslims in Mandalay rivaled Po Tha in wealth. He had set up a waqf (Muslim family trust, as explained in chapter 2), consisting of land and properties, that provided for two mosques and a madrasa. Upon the death of his second wife, he must have become a most eligible widower given that he had no children. Whoever he married next stood to inherit a considerable fortune upon his death, which could happen relatively soon given his age. His death, in turn, would make his surviving wife a most eligible widow, which is likely what happened to E Khin when Po Tha died in 1919. She was no older than twenty-three years old when she became the main heir to his enormous estate, valued at more than Rs. 100,000, worth approximately 1,500,000 pounds sterling in 1919.49 Regardless of the economic situation of E Khin’s family, or who initiated or brokered the marriage, material considerations must have factored into the decision-making process.
Once married and widowed, E Khin fought to hold on to her late husband’s estate. He had intended to formally set up another waqf, in addition to the one he had established prior to their marriage. He had informed E Khin, as well as his friends and religious and legal advisers of his intentions, though he died before he got around to drawing up a deed for the second waqf. E Khin not only refuted the existence of a second waqf but also contested the validity of the first. When ordered by the courts to produce the original deed, as well as the account books, for the first waqf, which, apparently, Po Tha had left in her possession, she refused. In the eyes of the judges, E Khin “prevaricated a great deal.”50 Maybe she felt that the waqfs deprived her unfairly of her late husband’s estate. Perhaps Po Tha had promised her that he would revoke or reduce the waqf he had founded before their marriage. Perhaps she was incredulous that the courts were willing to contemplate the existence of a second waqf for which there was neither written documentation nor deed, based on the oral testimony of “really respectable men,” as the judges put it, and against her testimony.51 Is it possible that E Khin was “prevaricating” because the legal system seemed to her to be unjust?
Knowledge of such experiences in the hands of colluding colonial jurists and “really respectable men” may have prompted Ma Galay to apportion her estate and disburse inheritance to her children well before her death. In the face of an increasingly patriarchal legal system that penalized women with intimate ties extending beyond the boundaries of the Burmese Buddhist, Ma Galay perhaps decided to govern her family affairs outside of the courtroom as much as possible.
The subjective effects of such colonial machinations are harder to gauge. One could reasonably speculate that the litigants could not have been unaffected by the legal arguments and judgments about their personal status and relationships. They may have developed new understandings of what it meant to be Buddhist, Hindu, Muslim, Sino-Burmese, or zerbadi; what separated a Burmese wife from a Chinese wife; and whether marriage between a Buddhist and a Hindu or a Muslim were respectable or desirable. At the same time, it is presumptive to conclude that their social imaginaries were transformed by government regulations of peoples, relationships, and properties along and across its categories of rule. We must also concede that we cannot determine with any degree of precision or certainty the impact of legal adjudications on the thoughts and feelings of the litigants because court transcripts end where the legal proceedings end. They give us only an incomplete and fragmentary picture of marital discords and family disputes and how or whether they were resolved.
It also bears remembering that litigants did not seek the help of civil courts in defining their subjectivities. Legal decisions about property hinged on legal definitions of the personal status of the litigants, that is, their religious, racial, and gender status. The litigants, however, never tasked the courts with deciding their identity. Scholars such as Lauren Benton have emphasized the centrality of cultural identities to jurisdictional politics and the efforts by litigants “to draw jurisdictional lines in ways that were consistent with their own images of group distinctions.”52 My analysis shows on the contrary that “group distinctions” and “cultural identities” were rarely the primary concern of those who waged courtroom battles over the question of legal jurisdiction. Law was an instrument for possessing and alienating property and family, which were the primary reasons people made use of the colonial civil courts. Some sought to reclaim their runaway or adulterous spouses; others tried to formally sever marital and familial ties. At the heart of these cases also lay property. The restitution of conjugal rights compelled a delinquent husband or father to pay maintenance; legal repudiation of a spouse or a child dispossessed the individuals of inheritance and succession. Such court battles were fights over feelings and relationships that had been affronted and hurt but ones that only people with property to keep, gain, or lose could afford to wage.
The selective, class-specific nature of civil court cases makes the courtroom stories of interAsian intimacies all the more revealing of how illusional were colonial constructions of social identities and relations. Colonial jurists frequently commented on the “orthodoxy” of upper-caste, upper-class Hindus and Chinese, which they contradistinguished with the permissiveness of marital, sexual, and familial relations among the “lower orders.” This was to be expected: the elite everywhere have historically legitimized and secured their prerogatives by upholding gendered, ritualized, and culturally encoded rules of conduct. Acts of impropriety risked the loss of entitlements, as exemplified by the allegorical figure of the European woman who, by bedding or wedding non-European men, forfeited her membership in the ruling class of Europeans.
Similarly, the many propertied, privileged Asian elites we encounter in the court records had much at stake in their observance and performance of piety and propriety. Yet few of them confirmed colonial definitions of who or what constituted a Chinese, Hindu, Muslim, and Burmese Buddhist. The complexity and multiplicity of their selves and families confounded the colonial jurists. Like the New Burmas, they were a living testament to the disjuncture between classification schemes and lived experiences, between the legal impossibility and the irrefutable reality of belonging across religion, race, and law.
Intimate Trespasses
Civil court cases are, by nature, about disaffection. Embittered battles over marriage, fidelity, and inheritance by wayward husbands, repudiated wives, disobedient children, and conniving relatives—these are the stuff of courtroom dramas. Colonial rule of personal law was, by design, about alienation: of women’s property and personhood and of immigrants and their spouses and descendants from Burmese society. I have tried to lift the veil of these legal plots. The people we encounter in the court records defended and dissolved material and non-material attachments against colonial interdictions. Classified as belonging to mutually exclusive identities and communities, they nevertheless assembled knotty marriages and families, and personalities and religiosities that colonial jurists struggled to untangle. As we have seen, these intimate trespassers not only offended colonial authorities. They also scandalized their loved ones. But the frequency of such objections was matched by the regularity with which people who, having initially reacted with displeasure, came around to accepting the transgressions. Bonds and bounds of social belonging were thicker and stickier than the colonial order permitted.
The legal archive of interAsian intimacies shows that kabya (mixed) families like the New Burmas remained unexceptional in colonial Burma. It attests to the “colonial contrivances designed to keep ‘their’ natives separate and distinct from ‘foreign Orientals’ ” but not to their success.53 The stories told in the preceding pages expose the legal fiction of the unassimilable foreigner and his obliging native wife for what it was: a colonial alibi. As we see in the following chapters, this colonial alibi turned anticolonial alibi. Burmese Buddhist politicians, lawmakers, and activists weaponized, in the 1920s and 1930s, the colonial legal transformation of intermarriage into outmarriage. They turned the Burmese Buddhist wife and convert of an amyo gya (Other) into a symbol of the subordination of the Burmese and attempted to mount legal prohibitions against intermarriage and conversion. They proclaimed themselves to be critics of British imperialists and champions of the Burmese Buddhist community. Yet they too galvanized bureaucratic learning and caring about interracial, interreligious, and interjural marriages and births. The elite Burmese Buddhist men and women who led the campaigns to regulate intermarriage and conversion were themselves legislators, lawyers, and their wives and children. They were among the coterie of Burmese with a front-row seat to the machinations of the colonial legal institution and its reality. They understood that the management of marriage and family was key to British imperial rule. And they grasped the potential of marriage and family reforms to restructure colonial relations of power.