Origin of Thesawalamai

Thesawalamai means Customs of the land.

Historical evidence said that two waves of immigrants came from Sri Lanka from India.

First immigrants called “MALABARS” who came from Malabar coast { Chera Kingdom } known as Dravidians. They followed matriarchal life system.

Second wave of immigrants came from Coro mental coast. They were Aariyars, their native place was Chola & Pandya kingdoms. They followed Patriarchal life system.

No need to say such immigrants brought their customs and usages with them to Sri Lanka.

Both parties who settled in Jaffna Peninsula and in the Northern Western   part of Sri Lanka.

They constituted Thesawalamai.

Malabar’s usages took the foremost place in Thesawalamai law but gradually Thesawalamai came a curies blend of principles of matriarchal society and patriarchal society.

Malabar derive their usages and customs from the Marumakattayam law which constitutes the main objective in Thesawalamai law.

Mayne shows that Dravidian usages not based on Hindu law, but many principles if Hindu law based on Dravidian Institutions

Influence of other legal systems of the thesawalamai.

Hindu law

The whole view we can say Hindu law had no influences in the usages and customs of Malabar’s law. They took this law to Ceylon. But we should consider an important matter Hindu law influenced in developing Thesawalamai after it was spread in Soil of Jaffna. The patriarchal law system incorporated with Hindu law.

That time Hindu law use as a residuary law ( Casus omisus ). So we can understand that time also Hindu law exist well established legal system.

When marriage become sustainable then only this society become a patriarchal society. Therefore after the change the method that, males can handle the property.

This way girls got Cheedanam and boys got Muthusham.

If one brother died instance only the family brothers can get ownership of the deceased person. Sisters exclude from this heir’s liable .It was a expression of patriarchal society.

Patriarchal system adopts many rules and principles from Hindu law system.

According to the Hindu law sons did not depend on his parents or could not expect from his wife. Therefore they want to earn and gain to their hands. And also they pay their father’s loan after his death.

So these ways indicate that “the son was the liable person in the society and he reflect the family”, So automatically he became an significant factor in society. So the patriarchal system of law became well established.

Some kind of pawn and join loans also adopt from Hindu law to Thesawalamai.

Portuguese and Dutch

We have an evidence according to Class Isaacsz how Portuguese had influence in Thesawalamai law. In the period of Portuguese if we want to sell a land, we should publish on three successive Sundays at the church. This factor shows how long they mixed the religion Christianity in our customary laws.

1697 the commander of Jaffna Zwardacoon realize the ability of thesawalamai, hence Governor Simons entrusted Class Isaacsz to codify the customs of malabars.

The original code codified by Class Isaacsz in 1706, it in Dutch language. Later it was translated by John Pious.

The code approved by Dutch governor . It continue in force between 1707 to 1806 in civil disputes.

Dutch influenced in several matters. According to a manuscript bunch of orders were signed by C.T.Simons on 25^th April on 1804. It affects Sales, Otti, Herding, Marriages and dowries.

Dutch altered thesawalamai in mainly two ways.

01.Express modification : When codifying tesawalamai they incorporated their rules ( Mostly in

Commander Bloom’s period )

02.In some cases they directly applied Roman Dutch law principles.

Influence of Roman Dutch law

Dutch admin had no connection with Thesawalamai. Paviljoen , the commander of Jaffna Pattam his successor said in 1665 “ The natives are governed according to the customs of the country ,if these  are clear and responsible otherwise according to our laws”.

I n the case  Iyamattayer V Kanapahipillai, Dalton.J said “We cannot think that the provisions of Roman Dutch Law did not exercise some influence (Theediya thetam )

Van Leeuwen says, “After the marriage husband’s or wife’s property development cannot claim their heirs.

But Roman Dutch Law used causes ommisus in Thesawalamai law.

1.Puthutamby V Mailvakanam

2.Thiyagarajah V Parachotipillai

English law

In British period in 1799 proclamation guarantee the continues application of Thesawalamai like as under Dutch rule.

Thesawalamai code had some specific recognition by British in regulation No:18 of 1806. It declare all questions between Malabar inhabitants should be governed by Law of Thesawalamai.

Since 1806 english translated code of thesawalamai had the authority in disputes. But English translations have some inaccurancies. Sabapathi V Sivaprakasam (1905)

English law principles introduced by tacit acceptance of English principles or legislation based on English law.

Obviously we know our judges well trained in English law principles, In Seelachchy V Visuvanathan Chetty  - Bertram C.J came to conclusion by considering principles of English equity.

Some of other provisions of Jaffna, Matrimonial rights and Inheritance Ordinance  No 01 of 1911. It also deprived from English law.

Finally codified thesawalamai is not pure one. It had mixed Roman Dutch Law rules also.