Chapter 4 Divorce en of marriage. Marriage by Myanmar Customary Law is temninable at any time by mutual consent, or under certain circumstances, against the will of one of the parties. A divorce may either be pronounced by a C 3 y a Court when one party does not consent, or it may be completed by a written agreement executed by both parties in the presence of respectable witnesses specially called together for the purpose.' The meaning of the word of divorce is not specifically mentioned in Dhammathats. But it can be assumed to take place when one spouse lives separately from the other with the intention of severing the marriage tie, and after the couple divorces, they arrange the partition of property as well as custody of children. Furthermore, the matter of divorce can occur under three kinds of conditions. 4.1 Grounds for Divorce There are many kinds of divorce and grounds for divorce which are in the Dhammathats and also in the leading cases. ‘The mutual consent divorce is the commonest form of divorce amongst the Myanmar Buddhist. There are three grounds for dissolution of marriage under Moa Customary Law, (1) Divorce by mutual consent; (2) Divorce by husband's entry (3) Divorce on account of mat mentioned into priesthood; Sand jmonial fault. 1889, p3. PS Si : ist Law, Yangon c SitJohn Jardine, Notes on Budde Be 3 Ma Mai Hla v. Maung Po Thone, © a Maung Nyunt Tin v. Ma Pu, 1954 BIn the above mentioned types ao B a ; lissoluti conditions of divorce on account of ™atrim aoe Marriage, apart from some ; \onii : a sore 0 the husband's cane a ial fault, divorce by mutual consent and Marriage is easily dissolyeq 0d are remain unchanged 8 it is cont acted BET sire to cons amongst Myanmar Buddhists. lute the marriage tie, they may > there is no gi when husband and wife no Jon to severe the marriage, J, deed. It can be made easily in the Presence of the elders 5 elders,’ A marriage between ee Myanmar Buddhists is : competent jurisdiction on proof of the sg oath commissi offence.” A divorce cannot be had m. lerely because one of the parti " Parties has no love for the other or does not comply with the desire of the other. But there can be divorce at the ion by one party of a matrimonial instance of one party on account of some recognised matrimonial fault onthe other.” There are two kinds of matrimonial faults. They are:- (1) ordinary matrimonial faults; (2) grievous matrimonial faults. According to Myanmar Customary Law, there are five kinds of ordinary matrimonial faults: (a) Misrepresentation; (b) Adultery on the part of the husband; (©) Taking another wife by the husband; (@__ Desertion; (©) Ordinary cruelty. Myanmar Customary Law recognizes two faults. They are:- (@) Adultery on the part ofthe wife; and (b) Grievous Cruelty; kinds of grievous matrimonial Burmese Family, The Hague Martinus 6 Edition, P.C. RAY of Sri cae Ning De, Taw and Custom in Bors amo iff, 1963, Buddhist Law, ee chek tana, Principles of Na a iy Principles, 1957P90- ra cfd Univesity Press 1983035. Gouranga Press Private it ta, Milford Ore, 6 Edition, P.C. RAY of Sri lyanmar 7 Naar rciples of Modern. Sse Chandra Lah, Principles tia, 1957, P45.wt Misrepresentation "4 In Kaingza; the parents give their that bas 0 Wie. Ifafomer si nnn MASE & man who rei nid wombs visa meen ce ne peorstnite inientie wi ig .qcond parents-in-law: failing to comply with ee Fe fo ht fags ext ea Cac ge ieee nice ge grace on the family of the second wie, ae In Vannadhamma; the parents give their daughter in marriage to a man who represents that he has no wife obtain the second wife unless he gives one or two cildren by his former wife to the parents of his second wife, or, in- the absence cdildren, unless he gives his former wife to the second parents-in- law. Otherwise he tall neither obtain the second wife nor his bridal presents, because he has wrongfully tought disgrace on her family by false representation.” But the texts refer to a case where the woman has been given in marrage and it sooms immaterial whether the mariage they deal with a clear case of fase remseanion which wil ent to the wife oa divorce onthe grou’ ts mit tas misled her into believing his coc cert hse snopes 1 ee crac oder dee wie aes viet om truth which renders the contact vodable, Pt 2__ dissolution of the marriage : parted iar aaa - ee ee i = siren on # oleate ssrepresen reports. Neither in Ma Khin v. Maung Gale’? nor ig Mg Po Nyunt v. Ma Saw Tin'* the Court found it necessary to decide if such i jon could be a valid ground for divorce. In the first of these cases, the isrepresentation alleged was found not proved; and the second case proceeded on ciber grounds. section 494 of the Penal Code describes that whoever, having a husband or safe ving, marries in any case in which such mariage is void by reason of its taking ceding the ie of sch shan o wif shal be punished wit imprisonment of aber description for aterm which may extend o seven years, and shal sso be Hise to fine. But there isan exception added tat this section does not extend 9 any POP vow marriage with soch husband or wife has ben declared wad by « Cou of vere ursteton, gor any peson win cna amariag ring ei 01* tres lucene wif, isch bhai tte tine of sno aE Tse be ceatmay sect nc pon rth pce fer TS ape prmn tage win en PV the person i age shall, before such marriage takes place, inform the person with whom such save is contracted of the real state of ee fra tase re wetin is ox he nomic Khin v. Maung Gale, PJ.130. 160,76 Moreover, Section 495 of the Penal Code Presctibes that whoever commits the a defined in the above section, havin, d cee: 8 cone Fe gubsequent marriage is contracted the ae from the person, with ped with imprisonme ; of the 5 ised with impr rent of either description fo, former marriage shall be and shal lobe lable to fine, a term which may extend to ten To protect the interest of women from suff - - Suffering misrepresentat sto and becoming unlawful wives, the Pyida $e 3 ea pei © Monogamous System 2015 in 31.8.2015, This ase ating nie po are VINE in Myanmar and foreigners who oe M nee a ae one * n = It prohibits a married person from entering a second ay, ; jing with another person while still married. Any one | e |. Anyone can file a complaint and pnishment for violations include loss of property rights upon divorce for the guilt for the guilty . section 4 of the Law Relating to the Monogamous System 2015 mentioned the objectives of this law as follows: to set up pleasant marriage constituted with a husband and a wife legally married, who are faithful and cheerful to each other; to n from becoming illegitimate wives by adopting monogamous system; protect womel to prevent potential matrimonial issues and matrimonial cases due to marrying more than one spouse and; to enhance the maintaining of morals of men and women.* Thus, Section 11 of the Law Relating to the Monogamous System 2015 he or she was previously married, can enter into describes, any man or woman, if arriage and son, only after declaring the previous m: another marriage with another pel Section 13 is the orce with his or her previous spouse. showing evidence of legal div section 11 where prescribes; punishment section Te; ing a breach of conditions of whoever commit section 10 and 11 of the said law shall which may extend to seven years and shall also be liable to fine. According to the Law Relating to the Monogamous System 2015, Section 17 Meare tint any. person in scoondanor ‘il the existing law, during the subsistence of a former mariage omits to mention seain marries another man or Wora the husband or wife shall on conviction be be liable to punishment and religion or custom, such marriage and eoThree conditions are sa eed 10 years and with Tegardi Law, the wif Batding mj ae © only has the ae ‘tepresentation, Under Myanmar we proceed ing is brought by Penal Cog, NVorce on such onal inflicted punishment as menting) &, Section 494, the ee icealment. When -ription for a term which 4 in Section 495 Pyles ing person will be : The Law Relati may extend to ten Years, and imprisonment of either jn 2015, lating to the Monogamous § + and shall also be liable to fine. ustied person Who represents himselp 'ystem 2015 was enacted and the 412 Adultery According to the Dh: 5 ammathats a wife may discard a husband who is a drunkard and a gambler and who seduces othe: °3 wi ae other men’s wives.'” If the husband keeps a paramour he is to leave the house with only the clothes he is wearing.'® In the ee system, adultery on the part of the husband was recognized as ordinary matrimonial fault and adultery on the part of the wife was grievous matrimonial fault with more severe punishment prescribed for her. In Ma Thein Nwe v. Maung Kha’, it was decided that Myanmar practiced Polygamous system, thus Myanmar Buddhist husband can take more than one wife. Therefore, adultery by the husband is not, in itself, a sufficient ground for divorce for the wife, though the wife may be entitled to resist a claim by the husband for restitution of conjugal rights. Regarding to the adultery on the part ofthe wife, Dr Maung Maung deseribed in his work of “Law and Custom in Myanmar and the Myanmar Family, 1963” in anmar Customary Law, the Ma Thein Nwe v. Maung Kha case that under My the wife is no ground for husband’s adultery, unless accompanied also by cruelty to ygamous Marriz 2015. 2 . oe ‘Burmese Duddhist Law, Vol iene angio, Ee ‘ist Law Concern i st ol of Burmese Buddhist Law on Government Painting 1902. A Digest ee Marriage; A Collection of Texts form Thirty-Six Dhar a al inka, ‘ u ‘ igest of the Burmese BUST Concerning Inheritance and Gaung, U, Translation of @ Pe aa B a oe Government Painting 1902. A aT I seta, 256. 1» Marriage; A Collection of Texts form ‘Thirty-Six Dhamma 7Ran 451. eS "Section 17, The Law Relating to Gaung, U, Translation of a Digesphysical cruelty but also the inflictio ly pearable nature May be clagseq as ie spent of personal violence and gry vs fe oF Health. Pains are 28 oF kel to endanger o ‘ Tather worse (thes ae welt by one SPOUSE is a matrimonial fault for which Physical cruelty, Cruelty, elty. tj Some mental the other party is entitled to Cruelty by the husband OF the Wife is @ matrimonial fay in di ult for whi can claim divorce, There are two Tee Spares for which the other 1, Ordinary Cruelty; % 2. Grievous Cruelty; : pr ‘he Dhammathats cite in section 223 and 275 of the Kinwun Mingyi’s Digest, Volume , Tecognizing the husband’ power of moderate chastisement with a spiit bamboo or length of Tope. Therefore, the Dhammathats recognize the husband's power of Moderate chastisement with a light cane ot split bamboo. Even in the e arly days of the British petiod it was thought that striking a wife only once or Pulling the wife by her hair and abusing her was not considered to be a matrimonial fault.S! But in Seetion 303 of Digest volume I, ifthe wife forgives him, he shall have ‘us conjugal rights after promising that he will not treat her with cruelty @ second time. If the wife does not agree the arrangement, a divorce may be granted as by mutual consent with equal division of assets and liabilities. Cruelty might be by any means, An isolated instance of ill-treatment or Violence is not sufficient; there must be physical violence or infliction of mental pain With indifference and to delight in the pain caused to the sufferer, There ought to be Gvidence of such ill-treatment as shows that the husband is a man of violent tendencies. Ree 249, Mrs Pearl Kyaw v. U Kyaw, 1967, BLR, Sarees ‘4 Protima Ghosh v. ereriiapas et odes Dees Pichi Lew, 6° Baten pc RAY of Sti Sist Chandra Lae — Calcutta, 1957, Buddhist teen Edition,1957, p.97. Gouranga Press Private ¥ RLR p.125. Daw Pu @ Daw Pu Gy v. Mg Tun Kia, 1946 iB a>the divorce, OF drives the other t, : 10 seek patty is liable to forfeit his of her share oe di ae Inthe ease of Daw Sadar Swe y, Y Thy re ae of re ae rp m and culture. It is a gil oie minor tld. This is vctn jogo sting moral code of conduct é ‘ ; in which vee There is an evident that in Myanmar society has no the trial, the mother was caused by the auntie sess and that the victim's daughter Nandor Kyaw had been imeparable amaged for the rest of her life, If the husband commits a seriou: S cruelty, the wife may not : 'y not only get a divorce put he also loses all the shares that should be obtained from the husband and wife. Therefore, this appeal was granted at the natant bie Bago District Court and the decree of the Judge. The judgment and sa cae ago Regional a that approved the decree were overtumed. The judge ruled that the defendant was guilty of a serious marital offense and that the plaintiff was entitled to all property owned by the couple, including the divorce decree and the legal substance of the plaintiff. ‘A further declaration by the Court was that it was extremely shocking that the defendant had raped his minor daughter and had caused serious misery to the entire family and by doing so had committed an unforgiveable crime against the basic foundation of society. As a perpetrator of a serious marital offense he had to lose his share of the spouse's property. In the past, there were found in Dhammathats that committing rape the daughter by the father was not regarded as a grievous matrimonial fault. But in the present days, the custom and knowledge practiced by the people are change by ‘ous matrimonial fault. The husband prevailing custom; the case was regarded as griev was convicted by Section 376 of the Penal Code and sentenced to 10 years imprisonment and imposed to abandon the marriage property. There were no cruelty cases committed by a woman as Myanmar Customary Law until 2015, Daw Yi Lei Mon v. Sen Thar Wat" Ti the “a emlty committed by the wife. Under Myanmar Customary Law, it ae cruelty cases were committed by the husband and ee kinds oe 2015 “Appeal, No. 529. 12. 7 imine rnan Wai 2015, Apes! N°whether OF Dot the 5 f : an W2S eaithed 19 0 sae : —— Ske Wento aight wag ste ak en e with another man. She nother man and uploaded i” ld. a ae ‘accepted US dollar as mai ss Lorem — ‘sue of whether or not the wife commis _ grorce of the husband regarding to the wife cmuity will be disclosure ofthe right of ebsstend. The husband brought a suit for divorce onthe cructy ac of wife. The yr decided that husband has the right to divorce as long a the wife commits the tof adultery. end 42. Partition of Property ‘According to Myanmar Customary Law, neither any one of a marri nay sue for partition of his or her share in all joint propetis during the subsistenos of their marriage. However, after a marriod couple has divorced, they may sve for pation on properties. When 2 married couple wants to divs, Wey may Gre and partion of propety atthe same time or they may sw at ft, ony for divorce: continue with a suit for partition of property. . usually goes by mutual consent or sefilement under Bens ces 4 vd pon mpi mba TE SE Sita ed of parton be Se ae concems immoveable property eooration ofa minor toa guardian, In the Mrs Kaw Win y, Malina yo sats had more qualification for the gu oe Se the Court helg that one of the In the Daw Khin Than v, Distriy aay a of the minor, sould be taken orefilly and deivered x . uestion was whether child 'y of the guardian, under Secti guardian of the child under Section 7 ofthe a Pee cae? ane Famine the Witness before making, an a the Court must hold an inquiry and > an order ‘ Be pli nttoindnganens 8 to whether the child should be 95 of Guardian and Wards Act, 1890, ins cas In consideris ting the Mg Po Thu Daw v. Ma Than Kyi case* e és cee ; ‘vi case,”* under Section 25, it was at the question of the welfare of the chil child must be regarded as a question of facts. In the Daw Chau Kam Yoke v. Minor child Ngut Kway”” case, Ngut Kway was davghter of Ah Lwee (a) U Maung Maung Gyi and Mi Shu. She was born after her parents were divorced. After her birth, Mi Siu sued her husband for the child's expenses kyats 3000 as a lump sum The mother later went 10 Hong Kong. Her father had since their separation married two women and had 14 daughters by them. The child lived alternately with her maternal grandmother Daw Chau Kan Yoke and an acquaintance named Lai Lam Mu who looked after her. In this case, Ngut Kway stodian because she could come and expressed her wish to live with Lai Lam Mu as cus go as she pleased during the day whereas she would have to stay indoors on the top floor if she has to stay with Daw Chau Kam Yoke. Her wish was considered as not it yet a BOO sensible as if she lived with grandmother, she would get 4 8 . ined in her going bere and there, and there was no reason would also be discip! tayed with one who was adness than if she s! re Jove and kindness : pect er Bee 2 nied eppoined Den Choe Bm Yoke as custodian not related at all. 0 eaed J the | sans and Ward Act, 1890. of Ngut Kway under Sects .d education and she ‘on 17 of the % 1967 BLR (CO)? % 1965 BLR 173. % 1964 BLRP527- % 1968 BLRP-4S. #7 1967 BLRP2I+, the child’s ‘Thus: Preference should 102 ple of choosing wisely, By When th "ito Considerar © child e Tation, when the child ‘ his prefere: poem nce should n, Presses its yi with ot be allowed j NS wish to live together a his preference i ie rence is against its own appointed guardian of the young daughter, Ma Bi Ej ‘hyo My In Daw Ni Ni Lay v.Mr. Lue de waegh® the Su = ji ipierest of the child and decided in favour ofthe father canes considered the saber isa citizen of Belgium, ls Set: ac It is usual that at the time divoree a Myanmar Buddhist woman comes to an amicable agreement with her husband as to the disposal of their children, in a manner not opposed to the principle of natural justice. But the most paramount consideration isthe interest and welfare of the minor. With regard to Myanmar Customary Law on the custody of a child, Myanmar seceded to the Convention on the Rights of the Child in July 1991. The Convention onthe Rights of the Child is a UN human rights treaty ouining the ditint rights of children. The CRC was adopted by the UN General Assembly on 20 November 1989 ito force on 2 September 1990. The guiding principles of the CRC include and came int non-discrimination; best interest of the child; the right to life, survival and development; and respect forthe views ofthe child In Article (18) The Convention ofthe Rights of the Child provides as follows; hates parts shall use their bes efforts to ensure recognition of the principle that ‘both parents have ie Seer Jegal guardians, have ‘ bringin; rent as the case may be | ee opment of the child. The best : ai ‘ primary responsibility for the yg and deve EE 9992 MLR p. 65. é 2000 civil General Appea! case NoS?-| eo of the child will be ther ba, - coy «oo of the new Child Ri, . Be” 14 Rights Law in 2019 . mar W” afer the enactment of B the Myznm, 015 and the Law Relating to fe at Buddhist Ie Women’ by matrimonial fault, the 5 gh Monogemous r 'S Special ie 10 custody of Ystem 2015, regard x ing a giv he children 80 tothe i Innocent or Chapter 3, Section 25 of the Myanm, ar Buddhist Wore 's Special Marri 1 Contained in arriage law and custom, ifa ibe woman would divorce the man due to itt Teason- (a) the man shall waive the porti Portion that he is entitled t fro owned by both, and pay compensat nine OS 5 ‘ \pensation to the Buddhist woman; (@)_ the guardianship of all children shal 3 Fe seein be with the Buddhist woman; (©) ay mail il ae Pp a aintenance for children who are minors. lus, 1 seen ; y at the faultless parent ought to get the custody of the children. But if there are any questions relating to custody of the child on the parents’ divorce then it concerns the Guardian and Ward Act, 1890 and not any other laws. Courts only make decision on the best interest of the child. ‘The husband may divorce on the grounds of his wife's single act of adultery. a wife to divorce her husband, she must show that her husband is However, for her consent. Thus sexual inequality cohabiting regularly with another woman without xists in such cases. Even without mutual blased against a wife but not @ husband e serted for the Court's intervention. A spouse de Partition on divorce In contested divorce citly favor the consent, divorce can occur without three years has the option of treating the marriage as dissolved. usually goes by mutual consent oF settlement under arbitration. proceedings before the Courts, judges dividing marital propery expli As ned abo ons arise about the custody of children mentioned above, ; eae upon the divorce of the parents: the cases regarding 1° custody 0 important to decide base on the weifare of the cbildren beChapter 5 Adoption and Inheritance Adoption is a creation of thi ei : : : parent-child relationship between adoptive and the child. It involves taking legal responsibility parent : lity as a role of i However, in order to be a legal adoption, the adoptiv ae ‘ : hes ? )ptive parent must have an intention for the child to inherit in its new family just as a natural child. Among the several types of adoptions mentioned in the Dhammathats, the types practiced in Myanmar today are Kittma and Apitittha adoption. Although the adopted children in both types of adoption may inherit in their adoptive parents’ estate, their rights are not the same. Also before 1939, kittima ado) tion was hard to prove. But after the enactment of the pt pi Registration of Kittima Adoption Act in 1939, under wiich, every Haina ae needs to be registered; this difficulty of proving a kittina adoption no longer exists. SI i wee do not have their natural parents i children who eer be made even Adoption gives @ prot some reason. Sometimes, adoption can adoption is welfare and giving a sound protecti tbandoned children by creating *ion of children and peor ™Y person wi i 105 i ™mpetent to To be a valid adoption, there mug Contract can adopt a ot fet OF TOS of teed the child shall thenceforth belong to the iti adoption with the wing ofthe cild By the adoptive parents yy pert in the new family ? ‘ith the intent ‘The Myanmar words “Mwe-sa de” do not one’s own child as the English word « = sere is a distinction between adoption with a In the words of the Dhammathats, Clearly give the idea of adoption as cae @ son of the former en mmwegan-so-mewgan- mwe-sa-thaw-tha”, than while a son of the latier oe as “kauk-yu-mwe-sa-thaw-tha."* ‘ypeis iowa gan eae ie wba ee : : : ‘The Sahodda adoption is adoption of child by purchasing. This kind of adoption is no longer used in the present time. Nowadays, there are two kinds of adoption ‘Kittima’ and ‘Apatittha’. In the Kittima adoption, the child is adopted by the manner of publicity and Apatittha, causally adopted children are given of inheritance in the adoptive parent’s estate through their rights are not the same. The word ‘Kittima’ comes from the Sanskrit Kritima or the Pali word Kittima which means fictitious. Kittima is the highest form of adoption of a son or daughter with the intention that the child shall inherit from the adoptive parents and adoption aust be performed in fll consciousness of what is being done “The word apatittha comes from the Sanskrit word apabiddha or te Pali word ae which means rejected.’ The apatitha has been described as “the child who es, cared for ond reared with the ination “oe wil make i til of haga ch cr my mt be meeting may ets Ree in B 4 and the Burmese Family, The Hague Martinus@ ‘The Relative Registration fy, Gi) give the document and on all ina, a 30 days, to get the Tight of, ve a Officer Se With sup Seeti section 28 says that the Departnenten Social Wey a 4». inaccordance with section > Social Welfare : 7, si a may pt or reject eae mize the pica p, with sub-section (a) the adonter = the child as an inher nite to adopt shall make a contrag Perso Department of Social Welfare; % ¢. according to sub section pacers with section istration ce ed ad COpy of deed tothe Sui Gi), shall summit such Regarding the best interest of the Child seas of Social Welfare, Bd os « meni oft Coonan eae to the CRC on 168 ssi mental, spiritual, moral and social rights * ee of every child emphatically. Also, Bet ally. jnkeeping with the CRC, Myanmar has developed its methods of adoptir : ta ting a The Myanmar Government has made an effort to ensure the Tights of is aie et inposing on the Social Welfare Department. The duty for ascertaining these rights, by easuring that adoption is made as described under the Child Rights Law, 2019. 52 Inheritance Inheritance is passing an estate descended to the heir immediately on the death of an ancestor by virtue of his rights. According to Myanmar Customary Law; a Myanmar Buddhist does not have a right to dispose of his property by means of a will Inheritance therefore is by intestate succession only 27 Myanmar Buddhist maid women are entitled to defintely equal right of inheritance, sempmrat Bae Tis isa very distinct feature of Myanmar Customary LAW of ee al of the Union of Myanmar, have declared that o or er ae I iaertnee et be Sted Oa cpr Bere Tar wile applying the Manca C™ET va ‘Martinus ily, The Hag0e ee aa e ” Maung i and Custom in Burme ie ing Maung Dr, Law Nihiff, 1963, p.103.vision which has been of atereg °F abo lia ps shed op any eon ty, on according to the Myanmar CH Ving the force heirs is definitely ang distiney fa Ms the rile of j once @ person dies, all the TeSpective ce ti should individually. Itis a vesteq interest 29 Ite their ‘SPective shares op Women, who were Married under the «aoe and Succession Act 1954, Were go yanmar B, oo ve St Women Special peice under the presumption that ies Act in all matters of cysomary Law. Med under the Myanmar The Myanmar Buddhist Women gree i by the M itWo ite and Succession Act 1954 yas repealed by the Myanmar Buddhist Women’s Sel es eqwiment of this law, the rights of ti lage Law 2015, After Myanmar Buddhist a ighertance rights) are governed by this avis ‘women (including ancestors, and liabilities of a deceased Person to his or her heirs.>° Consequently, there is a little difference between Succession and inheritance. Succession is not only succession of the deceased person’s estate but also the coming next after and taking the Place of the deceased by his or her heirs. But inheritance is only succession of a deceased person’s estate. 521 Inheritance Rights of Women There is no discrimination on inheritance between husband and rs under Myanmar Customary Law. A Myanmar Buddhist does not have a agi dispose of Nis property by means of a Will as he or she pleases. Teri age under Myanmar Customary Law is by intestate succession oe we ae Endhist family property does not go outside oftie family. ‘lthe properties are inherited by his widow and a It is the fundamental principle of oe we *eeeds to the legacy of her husband. Otherwise i on stomary Law that the wife .C). js Daw Thaik v. C.Yaung Ah Lin, 1951, BLR. 133 ve Rp3. Edition, » J Sein Kyiv. Daw Than Sein, 1994 MEO yt Law 2 'y Oung, U, A Selection of Leading Pres, 1926, p.207. ‘Yangon, British Burma2 Con Clusi at Customary Law ig no, . ion a , prevailing customs aa: pate Ts 5 Judi ai; og TENS Seale ve authorities enact new Lay, K cial Aecisions. 1 found in the 1 yen the IN some condit st Li need nti eo aw can be re; tea ions, @ People : and country prevailing custom an j : : g id from, Judicial Precedents i - . Ve enactments , customs and conditions of ner s it Myanmar Society are sie with 'Y are changi ; me Provisions of the pj lammathats ‘ , for the previous decisions made by the Jud : rts ete, ges of the higher Co be overruled by decisions. Y the later decisi ave also to be made in some legislative enactme 80 7 lents of authority so as to wir with the prevailing situation of the Myanmar Customary Law itself is ao np ymary Law only, when Customary Law and enacted Law are contradicting, that enacted Law will prevail. Thus, it can be seen that a conflict of decisions can arise when some provisions of the Dhammathats sre not consistent with the prevailing Customs and Laws. pel to be reconsidered again and often to In this respect the Legislative body of the State compiles and declares Special Laws if it is necessary for the present situation of the State and those Laws cover all the people of the ‘Union of Myanmar. The Dhammathats are not the one and only Law which is also to be ascertained from decided cases and the prevailing customs sn consistence wit the development of society the only area in which the British government o be governed by their own Law and inheritance, suocession, repository of Myanmar Customary and practice of Myanmar people Myanmar Customary Law is tnd allowed the Myanmar people 1° Custom in that of family relations i Jigious ws9ges- ‘ ddhists acon of a valid mariage ee of conflicts, stomary Law is a civil contrat continue t such marriage, divore®, have been Myanmar Cus made by the Courts. Mi seo! without any religious oF scone at preseribe an 88° . aw doe be “mature”. If he is puberty, he can anmar Cust Bt " My: the Pash 16 years old and they must have their be: requirement inthe case of ai a gna Suocession Act, 1954; Section 5 sf v4. Tous, a Myanmar Buddhist youth o, ° ithout the consent of his parents of Re can enter aCe i . Suardian whe, 3 8 valid ipe completion of 18 Years of age he is not canna ts Pube. Bu * tomarry® ae oem enactment of the pia Sater into a valid é was changed into 18 for both bu, the git must ha his Law, the age of » is if she is under 20. And a woman if she i We obtained the consent of is it. This was different from Myanmar Buddhi: ipulated tha St Women’s Special < ta gitl coulg boy any ‘marry at the ¥ her peronts or guardian’s consent. In the aan 20 years can many who is going to marry a non. Buddhist ei ‘Myanmar Buddhist ggonen’s Special Marriage Law 2015 is applicable to this Momma Dalia to in order 0 enable the enjoyment of equal nie eae ist women and copes men with respect to marriage, divorce, See joi guardianship of children and to give effective protection, Under the pe tis law, section 9 (d) and (e) give equal rights between men and cae pave no valid marriage shall subsist. Regarding to marriageable age of boy and girl there can be seen that in 1918 it yas held in a case that there was nothing in Myanmar Buddhist law to prevent a youth from contracting a valid marriage without his parents’ consent at any time he was physically competent for marriage. In 1919 it was held in another case that a minor youth under 20 years of age could not contract a valid marriage without the consent of his parents unless he was steadfastly determined to marry the girl of his choice. In 1925 the Rangoon High Court decided that a Myanmar Buddhist youth above 16 years of age could contract a valid marriage. In 1928 the Rangoon High Court held in acase that a Myanmar Buddhist youth is competent to contact valid marrage at any time he is physically competent fergie te moron af Bis Pare guardian in necessary. In taking the above into conside ple above 18 years of age marries a git! we eo es the provisions of the Penal of er parents, he would be commiting 9 nif o punishment Code an Child Rights Law and wold BED The practice of polysa™Y ies a but only on the part of men. ration, it might be concluded that if a man with or without the consent x by the Dhammathats and was nary Law, i allowed in the past by the Mye™!iti ore it can be said that a subsiding Marriage acted as a bar a bar to more than one husband. Furthermore, the fact that the man @ woman from Was not allowed to a. in without the consent of his i ; Present wife can be seen as an effc wy 10 foster amicable relations emong the i ae r Wives. However, it is clear that complications within the family were bound to Occur which could lead ic sjlente and sometimes, even to the commitment of a crime, The La a a jous System was promulgated in 2015 “with the purpose of ‘ ee > ; 5 enabling legall married couples to remain loyal to each other while building happy and ae families, upholding pee Practices to protect women from becoming mistresses, and preventing emergence of family crimes arising from men practicing polygamy: Therefore, it is clear that the Law Relating to the Monogamous System 2015 was intended to preserve the sanctity of marriage and for women to be able to avoid the problem of polygamy. The Law Relating to Monogamous System states that it applies to everyone living in Myanmar, including foreign nationals married to Myanmar citizens. However, as Myanmar Customary Law and Myanmar Courts recognized polygamy in the past for many decades. Now, it can be assumed that practicing monogamy may have difficulties to comply with it. With regard to divorce, in Myanmar according to Myanmar Customary Law a valid marriage is very important for a valid divorce. In Myanmar Customary Law, there are mainly three kinds of divorce. They are (1) divorce by mutual consent @ divoree when the husband enter into priesthood or rahan and (3) divorce by matrimonial fault. ‘The mutual consent divorce i Myanmar Buddhist. The vast majority of such divorces are the result of momentary quarrels and a large percentage of them are followed by a re-union in the end. Nevertheless, a marriage may be dissolved at anytime provided both parties assent. Such a divorce mutual consent divorce is valid without a decree of the a ora os of divorce or the presence of the elders. But one of a Mymnsuar east married couple cannot claim to divorce the other without proof of any matrimonial fault on the part of the other. here are ordinary matrimonial fault and grievous ‘matrimonial fault, the injured person can claim to 5 the commonest form of divorce amongst the fault. In ordinaryunable to contest such suits, But these po tment of the Registrati i acl ihe ema Sistration of Kittima Adoption A, = pe Ses ps ct 1939. ro prove & kittima adoption in an inheritance suit a duh a of adoption, as contemplated in section 5 of ee wi Act (No 14 of 1939), is necessary when the adoption has take lk 5 ae 4a . S yap yi] 1941. The Registration of Kittima Adoptions Act applies to a = hea s ly kittima One other point that has been noticed in the Context of inheritance is that after ; is r a enactment of the Les Relating to the Monogamous System 2015, since there can gow be only one wife and husband, the process of proving inheritance i is no pleat and runs very smoothly among the family. But in the case of inheritance ofthe children, in a marriage a husband and wife are joint owners of all property acquired during their marriage, if the man dies first, the woman automatically inherits and besides, she becomes the head of the family with full authority. Therefore, illegitimate child has less potential the right to inheritance. The law does not explain cleatly on this point. According to the Special Marriage Law 2015 there is no restriction to a Myanmar Buddhist woman to make a contract of marriage with a non-Buddhist man. Their marriage shall be governed by existing enacted Law at the present time regarding to the matters of inheritance. Relating to the inheritance rights, a woman (widow) is on the same footing as the husband and therefore, there is non discrimination between widow and widower. To conclude, this dissertation has revealed the changing perceptions of Myanmar Customary Law and describes how it is developing and changing with the development of changes society. Also remarkable is the important role of judicial rice wi jing trends of society. The decisions in changing Law in compliance with the developing trends of society. for marriage are enacted in 2015, those are the Myanmar 2015 and the Law Relating to the two important Laws Buddhist Wor jal Marriage Law of i men's Special gt e ; Monogamous System of 2015 to solve the questions arising from marriage, divorce, pus i ae AAA a ba: : gecetion'cest re should be @ certain customary marriage system in order is not an enacted Laws the proving of the validity of marriage 10 cover the issues gress been mentioned above, Myanmar Customary LawRichardson, .Thus, the defamation existed in ancient Myanmar society. It is governed by the Dhammathat. The Oxford Dictionary of Law defined the definition that, the publication of an untrue statement about a person that tends to lowers his reputation in the opinion of right- thinking members of the community or to makes them shun or avoid him. Defamation is usually in words, but pictures, gestures, and other acts can be defamatory. In English Law, a distinction is made between defamation in permanent form and defamation not in Permanent form. This distinction is not made in Scotland. The remedies in tort for defamation are damages and injunction. The definition of defamation is publication of false statement to other person by written or by spoken words. The same circumstances will constitute a tort as well as a crime for example assault and libel. 1.1. Definition of Defamation under the Penal Code Definition of defamation is provided in the Penal Code, Chapter 21, Section 499, that; whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person, intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person. Explanation 1 of the section 499 of the Penal Code mentioned that, it may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. In the case of D.N. Lobo v. J.C. Webster’, it was held that a husband filed a person aggrieved by his wife being being an adult and sui juris should complaint under section 500 of the Penal Code as a defamed upon an objection being raised that the wife have filed the complaint personally as she was the only person competent to compound such an offence. The court held that in the case of a married woman the husband is an aggrieved person and therefore he can make a complaint under section 198 of the Code of Criminal Procedure. ee 71952, BLLR (H.C) 235.