(516236 CUSTOMARY LAWS OF -,1-F"\ . ..."t. ,4­\ LAKSHADWEEP ISLANDS Iii Thesis Submitted By V. Vijayakumar FOR THE AWARD OF THE DEGREE OF DOCTOR OF PHILOSOPHY IN THE FACULTY OF LAW Under the Supervision of Professor P. Leelakrishnan SCHOOL OF LEGAL STUDIES COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY COCHIN — 682 022 1999 DECLARATION I do hereby declare that the thesis entitled “CUSTOMARY LAWS OF LAKSHADWEEP ISLANDS” is the record of original work carried out by me under the guidance and supervision of Professor P. Leelakrishnan. U.G.C. Emeritus Fellow, School of Legal Studies, Cochin University of Science and Technology. This has not been submitted either in part, or in whole, for any degree, diploma, associateship, fellowship or other similar titles or recognition at any University. m C» / Cochin17”‘ August — 682 022 1999 V. Vi’ ./ umar CERTIFICATE OF THE RESEARCH GUIDE This is to certify that this thesis entitled “CUSTOMARY LAWS OF LAKSHADWEEP ISLANDS” submitted by Shri. V. Vijayakumar for the Degree of Doctor of Philosophy under the Faculty of Law is the record of bonafide research carried out under my guidance and supervision in the School of Legal Studies, Cochin University of Science and Technology. This thesis,or any part thereof, has not been submitted elsewhere for any degree. G9;,,,s_:JhAm.,A_ Cochin — 682 022 Professor P. Leelakrishnan 17"‘ August 1999. Preface The customary laws of Union Territory of Lakshadweep islands are a challenge for judicial institution as well as administrative machinery. With the peculiarities of socio-legal institutions, Lakshadweep system stands apart from the mainstream of legal systems in India. How far do the charismatic modernisation trends flowing into the Lakshadweep society affect the people already protected by the uncodified laws of the past? Many are the issues at this stage. This study analyses them. It examines the growth, evolution and development of the legal system in the islands vis-a-vis the administrative mechanism imposed by the mainland ethos and culture. The first chapter is introductory. Chapter II examines the role of caste and religion in the growth of island customs and their influence on social relations. Chapter III analyses the impact of property concept based on trees on land tenure and socio—economic scenario. According to the nature of legal institutions and its working, the Lakshadweep legal system can be classified into four periods. (1) Period of Obscurity (2) Period of Rajas (3) British Period (4) Post Independence Period Chapters IV to V1 are the highlights of the socio-legal currents and crosscurrents of these periods. Chapter VII examines the working of various institutions and authorities under Marumakkathayam. Chapter VIII unravels the evolution of maintenance arrangement and partition. Chapter D( examines inalianability and impartability of it properties with special reference to judicial decisions. Chapter X is on the status of women. Chapter X] verifies customary legal profession — Muktliyars. Chapter XII contains conclusions and suggestions. In the study, the data have been collected through questionnaire and interviews from the old and the aged who had been the observers of the socio­ legal transformation in the islands. The Mukthyars, politicians, social workers, civil servants, judicial officers and women were interviewed. Besides, the old records kept in Amin Kacheries - the old judicial institutions of the islands- and mainland Archives were verified. Professor P. Leelakrishnan, presently UGC Emeritus fellow in the School of Legal Studies in the Cochin University of Science and Technology supervised my work. His assistance and guidance stood me in good stead in the course of my study and research. I had all the assistance from Professor G. Sadasivan Nair, Director, School of Legal Studies. I also acknowledge the advice and assistance rendered by other Professors of School of Legal Studies, Dr. N.S. Chandrasekaran, Dr. K.N. Chandrasekara Pillai, Dr. A.M. Varkey, Dr. D. Rajeev and Shri. V.S. Sebastian. The helping hand of Lakshadweep Administration during my field study requires particular mention. I also acknowledge the courtesy and benevolent help from Messers B. Amanulla, the Districts and Sessions Judge Lakshadweep and K. Haripal, Munsiff, Amini. Many in the judicial and administrative hierarchy of Kerala High Court were a source of inspiration to take up and complete my research work. The assistance of Kerala State Legal Aid and Advice Board is acknowledged. The ready mind to help in many libraries is a memorable experience. I am grateful to those people in the libraries of Cochin University School of Legal Studies, Indian Law Institute, La] Bahadur Shastri National Academy of Administration and National Law School. I have also got materials from libraries of Kerala and Madras High Courts and Supreme Court of India. People in Madras Archives and Central Library at Kavaratti and Amini Island Library also were kind to this research programme. Messers Anu Engineer, Zakeer and Saiju were responsible for the data entry of this study, whose work is acknowledged. iii CONTENTS Pages PREFACE TABLE OF CASES GLOSSARY xiv-xvi CHAPTER - I INTRODUCTION 1-1] LanguageLocation, Geography and, People History Administration Present Administrative Setup. Restriction on Entry CHAPTER - II RELIGION AND CASTE IN 12-27 THE ISLANDS Caste System in the Islands Koyas Malmis Melacheris Religion Sunnis Wahabism Achievement of Reformists from the Mainland Sunni vs. Wahabis The Ahamadiyyas Quadiriyya and Rifai Sects Tanglas CHAPTER - III CONCEPT OF PROPERTY, LAND 28-56 TEN URES AND LAND REFORMS Land — The Concept in General Land in Lakshadweep The Cowle System Cowle in Uninhabited Islands Lands Jenmom Lands Tenancy System Nadapu Tcntmcy The Need to Follow the Custom Pattom Tenancy House-site Tenancy Property Land Revenue Land Refomis CHAPTER — IV LEGAL SYSTEM : PERIOD OF 57-82 OBSCURITY AND RAJAS The Period of Obscurity The period of Rajas Resolution of Disputes Kavarcha Chekyatillat Case Valiyaillath Case Oaths and Ordeal Compensation and Fine General Administration Monopoly Local Administration Nazeranah Degeneration of Kootam Corruption CHAPTER - V LEGAL SYSTEM — BRITISH PERIOD 83-119 Monegar Amins of Malabar Islands The 1912 Regulation Criminal Justice under l9l2 Regulation Amins Position Retained British Recognation of Customary Laws Jurisdiction Status of Amin Procedure to be followed by the Court of Amin. Civil Justice Administration Reference to Assessors and Changing of Assessors Trial Procedure Service ofProcess Execution Attachment and Sale Inherent Powers Power to Exclude Mainlandcrs from the Island CHAPTER — VI LEGAL SYSTEM : POST 120-156 INDEPENDENCE PERIOD The Report Rationing and Coir Monopoly Relation with Coir Monopoly Civil Justice Criminal Justice Police Deviation as Regards the Recommendation of Customary Laws Introduction of Mainland Model-Modem J udiciary List of Enactments Made Applicable to the Islands Completion of Mainlandization of Judiciary Criminal Justice System Executive Magistrate Formation of District Court at Kavarathi Impact of Mainlandization of Customary Laws Inter-relation of Democracy, Bureaucracy and Judiciary Inter-relationship between the Executive and the Judiciary Rule of Law CHAPTER - VII MARUMMAKKATHAYAM AS 157-179 CUSTOMARY LAW —INSTITUTIONS AND AUTHORITIES Lakshadweep Marummakkathayam — The Concept Traditional Family Relations Origin of Marummakkathayam in Lakshadweep Legitimation of Muslims Marummakkathayam in Malabar vi Marummakkathayam in Kerala A School olllindu Law Marummakkathayam in Lakshadweep — Why? Dual Property System Tharawad Thavazhi Karanavan Customs Vary from Island to Island Suit against Tharawad CHAPTER - VIII MARUIVLVIAKKATI-IAYAM AS . 180-219 CUSTOMARY LAW —MAINTENAN C E ARRANGEMENT AND PARTITION Evolution of Thavazhi, Maintenance Arrangement and Absolute Partition Peculiarity of Property System in Lakshadweep “Attaladukkam” The Concept of Document (Sammathapathram or Razi) Partition of Friday Property Methods of Partition Conceptual Inconsistency Island-Mainland Conceptual Differences in Partition Alienation Karanavan’s Power to Effect 2: Partition Removal of Karanavan Fusion of Monday Property with Friday Property - an Andrott Specificity Thavazhi Partition and per capita Partition Inter-Island Differences Effect of Non—registration Deemed Transfer Partition of Course of Conduct Partitions and _Minors ' Guardianship in Respect of Tharawad Properties High Court on Guardianship Re-opening of Partitions Family Arrangements vii Share ofUnbom Child Additional Share ol'Karanuvun Partial Partition and Incomplete Partition Customary Shariat: Contlict and Compromise with Marummakkathayam as Customary Law Legalization ofCustomary Laws CHAPTER - IX IMPACT OF MODERNIZATION 220-243 ON CUSTOM Effect upon Customary Laws Nallakoya’s Case Buharikoya’s Case Corrected Nallakoya Chamayath Nalakath Case Moosappathoda Jameela’s Case Pallichapura Pookoya’s Case Pathimmapur Kasim Koya’s Case Awmmada Pat.hummabi’s Case Ashiyoda Kasmikoya’s Case Other Cases CHAPTER — X WOMEN STATUS ANDCUSTOMARY LAWS 244-267 Matriliny Monogamy Divorce Present Scenario Divorces & Children Marriage Mahr No Dowry Land Women’s Religious Rights CHAPTER — XI LEGAL PROFESSION ,LEGAL AID 268-294 AND CUSTOM Judicial System in Madras Province Procedure Law Applicable The Right to Practice in Mainland viii Evolution ol‘ the Concept of Legal aid: Climaxing in Legal Services Law Krishna lyer Committee Bhagwati Committee ClLAS Legal Aid in Lakshadweep Critical