Dagon University Research Journal 2012, Vol.

Women’s Rights under Myanmar Customary Law

Yee Yee Cho *

Abstract
Myanmar Customary Law is the personal law of Myanmar people professing the Buddhist
religion. Myanmar Customary Law is mainly concerned with such family matters as marriage,
divorce, adoption, succession and inheritance, matrimonial rights, and with religious usage and
institution. The sources of Myanmar Customary Law are four in number. They are:
Dhammathats, Customs, Judicial precedents and Legislation. According to Myanmar historical
records, there had often emerged women who had been documented for their achievement is in
drivers spheres such as in education, health, commerce and also in social and administrative
sectors. The equality of women is recognized not in the home only, but in public life as well. In
successive accepted legal rules of Myanmar Dhammathats relating to a Myanmar Buddhist
couple, husband and wife are “Tenant-in-Common” not “Joint-Tenant”. The partition of
property can be made on divorce or on succession at the death of one spouse and there are
certain prescribed rules on the method of partition under Myanmar Customary Law. The aim of
this paper is to know the rights of women under Myanmar Customary Law relating to marriage,
divorce, adoption, succession and inheritance and matrimonial rights.
Key words: Myanmar Customary Law, the rights of women relating to marriage, divorce,
adoption, succession and inheritance and matrimonial rights.
Introduction
Every citizen of a country has the right to freely follow his customs, culture and
traditions and to profess the religion of his choice subject to certain limitations. These
fundamental rights expressly granted by the constitution. In Myanmar there are four main
religions, namely- Buddhism, Hinduism, Islam and Christianity. Accordingly, they have their
own family laws and are governed by their respective family laws. The Myanmar Laws Act
(1898) vests force and validity in family law in its section 13(1), and according to section
13(3), matters which cannot be decided by either customary or statutory law, shall be decided
by the rule of justice, equity and good conscience.
Rights given under Myanmar Customary Law
Myanmar Customary Law governs personal matters of Myanmar Buddhist people. It is
composed of Myanmar Dhammathats, prevailing customs, judicial precedents and legislation.
Like other family Laws, Myanmar Customary Law is mainly concerned with such family
matters as marriage, divorce, adoption, succession and inheritance, matrimonial rights.
The Dhammathats are the main and important source of Myanmar Customary Law,
which is a corruption of the Sanskrit word Dharmasastras1. The Dhammathats, or treatises of
“rules which are in accordance with customs and usage and which are referred to in the
settlement of disputes relating to person and property“ are a principal source of Myanmar
Customary Law2. Myanmar Customary Law evolved from customs that have been followed by
Myanmar people since the ancient times. Judicial precedents of Myanmar Customary Law are
really judicial decisions made by the highest courts in Myanmar by or under the authority of
the sovereign which purport to apply established principles of human affairs. They are really
“judge made law” and sometimes also called as case-Law. Legislation is that source of law
which consists in the declaration of legal rule by a competent authority.

1
Kirk Wood v. Maung Sin, 2 Ran 693 (776) P.C
2
King Wunmingyi Digest, Vol. I, 2

*
Dr., Lecturer, Department of Law, Dagon University
58 Dagon University Research Journal 2012, Vol. 4

As Myanmar Customary Law itself is a customary law only, if customary law and
enacted law are contradicting, enacted law will prevail.
Marriage
Marriage is a civil institution into which the Buddhist religious element enters not at
all. The most important element of the Myanmar Buddhist Marriage, which is commonly
described as a “consensual contract” is “consent”.3 As the consistent feature of the Myanmar
family has been the freedom of the individual, a woman has her freedom of choice for her
spouse.
To constitute a valid marriage among the Myanmar Buddhists,
(a) the man should attain his puberty, 4
(b) the woman should be spinster above twenty years of age, except a widow, a
divorce, and a spinster under twenty years of age who has obtained her
parents’ or guardians’ consent,5 the parties must give their mutual and free
consent to become husband and wife presently, 6
(c) the parties must be mentally competent to contract,7
(d) No subsisting marriage for women8 and
(e) If there is no marriage ceremony, the couple must openly live together as
husband and wife.9
In the present day, marriage on swearing of oath has become popular and fashionable
with young people who go before a judge or magistrate to swear an oath and sign affidavits, in
the presence of two witnesses, such as friends and elders, stating their competence and
intention to marry. The affidavit is then kept by the parties, the young man keeping the young
woman's and vice versa, as “certificate of proof and marriage.” “This procedure saves the
expense of big ceremonies and receptions, is quicker and looks more ‘legal’ in that there are
documents to keep which bear stamps and seals and signatures.”10 This is something like the
changing trend of marriage system.
In making affidavits for marriage, all essentials of a valid marriage shall be considered
by Myanmar Customary Law itself and not otherwise. Consequently it is clear that in the case
of court marriage of minor girl, who has not attained twenty years of age but completed her
eighteen years of age, she also must receive prior and clear consent from her parents or
guardians to perform the marriage before the court of law although she has attained her
majority under the Majority Act and she is competent to valid contract under the Contract Act
which has nothing concerned with marriage under Myanmar Customary Law.

3
Mg Mg, Dr, Law and Custom in Burma and the Burmese Family, 1963, 54-57
4
Maung Thein Maung v. Ma Saw, 6 Ran, 340
5
Ma E Sein v. Maung Hla Min, 3 Ran, 455 (F.B)
6
Maung Tun Maung v. Ma Aye Kyi, 14 Ran, 215 (F.B); Ma Thein Tin v. Maung Pho Thone A.I.R 1930 Ran,
210; Maung Sein Nyunt v. Ma E Kyi 1962 B.L.R (H.C) 404
7
Section 11 of The Contract Act, 1872
8
Section 494 of the Penal Code
9
Maung Tun Maung v. Ma Aye Kyi, 14 Ran, 215 (F.B); Maung Maung v. Ma Sein Kyi, 1940, Ran 56; U Tun
Sein v. Ma San Myint, AIR 1938 Ran 115; Ma Kyin Mya v. Maung Sit Han, 1937 Ran 103; Maung San Aung
v. Ma Kyi Kyi Wai, 1963, B.L.R 995; Ma Mya Mya Kyi v. Ko Aung Myint, 1964 B.L.R 199; Ma Tin Thein v.
Maung Win Khing, 1965 B.L.R 149; U Pu Lay v. Daw Chit, 1974, Civil Second Appeal No. 32
10
Mya Sein, U, Myanmar Customary Law, 10 edition, 2004, 39
Dagon University Research Journal 2012, Vol. 4 59

For a woman to enter into a valid marriage, she must not have a subsisting marriage tie.
This requirement does not apply to men, for polygamy is permitted by the Customary Law. In
spite of polygamy being sanctioned by the Dhammathats which state that “a man may marry as
many as ten wives if he can maintain them all by his own skill and labour”. If a husband takes
a second wife during the life time of first marriage, first marriage of wife is called the first wife
and second marriage of wife is called the second wife, not call a lesser wife or inferior wife.
Myanmar Customary Law contains no prohibition forbidding marriage between a
Myanmar Buddhist and a person of another race or religion. Therefore, in the case of mixed
marriages between Buddhists and non-Buddhists, the validity of marriage depends upon the
capacity of the other party to enter into the marriage. In those cases the conflict laws problem
may arise. The choice of law between Myanmar Customary law and other laws might occur.
Regarding the marriage between the Myanmar Buddhists and non-Buddhists, before the 1954
Special Marriage and Succession Act, most of the Buddhist women who entered into contract
with non-Buddhist men entirely lost their rights and status.
In 1954, to protect the Myanmar Buddhist women, the Government enacted the
Myanmar Buddhist Women Special Marriage and Succession Act, This Act totally and fully
protected the Myanmar Buddhist women contracting into marriage with other religions. All
case law on marriage, rights and the status of a Myanmar Buddhist wife who enters into
marriage with a non-Buddhist husband, is now by operation of the Myanmar Buddhist
Women's Special Marriage and Succession Act, 1954.
The object of passing the Buddhist Women's Special marriage and Succession Act was
to remedy the wrongs suffered by Myanmar Buddhist Women when they married people
belonging to other faiths as they were deprived of their rights to inherit on the death of the
husband. Thus, the status of wives of non-Buddhist husband under the 1954 Special Act is now
having the status and equal footing among themselves.
There are some problems related in marriage under Myanmar Customary Law, namely,
breach of promise of marriage, seduction and maintenance etc., which will be analyzed in this
paper.
Breach of Promise of Marriage
A Myanmar Buddhist man or woman who is at the age of majority could make a valid
promise of marriage at any time. If one of the parties failed this promise, the other party could
sue for damages for breach of promise of marriage.11
In 1965, the Chief Court stated that “under the circumstances as stated, a suit for
damages against a male (who breached his promise to marry) can be made.” 12 The Chief
Judge, Maung Maung, that in matters regarding marriage and cohabitation among Myanmar
Buddhist, Myanmar Customary Law must be the primary focus of reference. A promise to
marry cannot be considered on the same level as mercantile and commercial dealings. In any
civilized country, matters concerning marriage and establishing a family are not considered on
the same level as transactions involving the buying and selling the goods. They are considered
delicate and important social matters. Therefore, when a dispute arose as a result of a breach of
promise, the case should not be decided merely by reference to a superficial analysis of the
Contract Act. Myanmar custom and culture need to be deeply analyzed in order to achieve a
result that would be just to parties in the case, and that would be acceptable to the society to
which they belong.

11
Ma Ngwe Yin v. Mg Po Taw, 7 B.L.T 14; Mg Tun Aung v. Ma E Kyi, 14 Ran 215 (F.B)
12
Maung Ko Gyi v. Daw Ohn Khin, 1965 B.L.R (CC) 913
60 Dagon University Research Journal 2012, Vol. 4

Damages for Seduction

Where a Myanmar Buddhist man seduces a woman and she becomes pregnant as a
result, she was entitled to sue for damages even in the absence of a promise of marriage.
Another important question of law to be considered is whether the Myanmar Buddhist woman
as a right for criminal action after the defendant promising to marry her, he seduced her and
caused her to become pregnant and subsequently, refused to marry her.
In Maung Kyaw Win v. The Union of Myanmar,13 it was held that the man took the sex
of a woman by giving promise that he would marry her and later broke the promise. He is
liable to prosecute under Section 417 of the Penal Code.
Maintenance of Wife
Every husband has a duty to maintain his wife and child. This responsibility is a social
responsibility. If the husband neglects or refuses this duty, a wife or a child may claim for
maintenance. In so doing, a wife or a child has two remedies available for securing
maintenance. The first is a civil suit according to the Myanmar Customary Law and the other is
by way of proceeding under Section 488 of the Criminal Procedure Code.
In the Criminal proceedings the maximum sum that can be realised is a hundred kyats
per month14 to meet the bare necessities of life. But in the civil suit of maintenance, the sum
that can be realised has no limit. This is the main difference between a criminal proceeding and
a civil proceeding.
In the case of Ma Saw Nwe v. U Aung Soe15, it was stated that “A Suit for maintenance
is a suit of a civil nature within Section 9 of the Civil Procedure Code”. Furthermore, in the
case of Dr. Tha Mya v. Ma Kin Pu and another16, the High Court decided as follows:
“In Myanmar Customary Law the general rule is that the wife is entitled by way of
maintenance, to an amount which is one-third of the income acquired by the exertions of her
monogamous husband. But when the husband takes a second wife the amount of the
maintenance to which the first wife is entitled is one-sixth of his income.”
Thus, either under a criminal proceeding or a civil suit only a legally married wife can
claim her maintenance. A woman who illegally stays with a man cannot claim her
maintenance.
Rights of Property in Marriage
According to the Custom of the country the wife takes a great deal of trouble in the
acquisition of property. Hence the position of a Myanmar Buddhist woman as regards
ownership of property is very peculiar.
During the subsistence of the marriage the wife has an interest in all the properties
belonging to either or both.17 It is usual to regard all properties acquired by the spouses during
the covertures, except inherited property, as belonging equally to the husband and wife. 18
The Myanmar Buddhist married couple are not commercial partners but tenants in
common.19 Property jointly acquired by the husband and wife during covertures is ordinarily

13
Maung Kyaw Win v. The Union of Myanmar, 1976 B.L.R (C.C), 9
14
Now being, fifty thousand kyats, Section 488 of the draft law of amending, The Criminal Procedure Code
15
Ma Saw Nwe v. U Aung So, 1939 R.L.R, 525
16
Dr. Tha Mya v. Ma Kin Pu and another, 1940 R.L.R., 807
17
U Pe v. U Maung Maung Kha, 10 Ran, 261(268) P.C
18
Maung Pan Hla v. Maung Tun Nyein, 41 I.C., 410
Dagon University Research Journal 2012, Vol. 4 61

deemed to be in the possession of the husband. 20 Husband and wife are joint owners as well as
joint possessors, and the husband is usually deemed to be manager of the family.21
The different kinds of properties of a Myanmar Buddhist married couple are Payin,
Kanwin, Lettetpwa, and Hnapazon. Payin is the property which had belonged to the spouses
individually before their marriage 22 less his or her ante-nuptial debts.23 Payin is also known as
atetpa. Lettetpwa is the property accruing to either spouse individually either by particular
exertion or by succession after his or her marriage.24 It is the joint property of the marriage.
Hnapazon is the property acquired by the spouses during the marriage by their exertion or from
the produce of the property they already have. 25 It is the jointly acquired property of the
marriage. Kanwin is the property given by the bridegroom and the parents of the couple (as
also presents from friends and relations) to the bride at the time of marriage for the joint
purposes of the married couple. 26
Divorce
Under Myanmar Customary Law, there are three grounds for dissolution of marriage;
(1) Divorce by mutual consent;27
(2) Divorce by husband's entry into priesthood;28 and
(3) Divorce on account of matrimonial fault.
Divorce by Mutual Consent
A mutual divorce is valid without a decree of the Civil Court or a deed of divorce or the
presence of Lugyis (Elders).29 But if a deed of divorce be drawn up it must be on a properly
stamped paper as required under the provisions of the Law Amending the Myanmar Stamp
Act.30 Partition of property when there is divorce by mutual consent, when the husband has
married once-Payin- When eindaunggyis divorce by mutual consent without fault on either
party and the parties do not stand in the relation of nissiya and nissita, each is entitled to take
back his or her attepa property31 as the principle of nissaya and nissita is not applicable to such
cases.32
Joint Property
Where husband and wife mutually agree to a divorce and the parties do not stand in the
relation of nissaya and nissita, the joint property of the parties should be equally divided
between them, 33 whether they are eindaunggyis or ngelin-ngemaya.34 But where the husband

19
U Pe v. U Maung Maung Kha, 10 Ran. 261 (279) P.C; Ma Htwe v. Ma Tin U, 1953, BLR 29; Ma Ohn Kyi v.
Daw Hnin Nwe, 1953, BLR 332
20
Maung On Sin v. Ma O Nat, 11 U.B.R. (92-96), 303
21
Ma Thaing v. Maung Tha Gywe, 11 U.B.R (02-03), Ex. 1
22
U Pe v. U Maung Maung Kha, 10 Ran. 261 (268) P.C
23
P.L.P.S. Chettyar Firm v. U Maung Nge, A.I.R. 1935 Ran. 399
24
U Pe v. U Maung Muang Kha, 10 Ran. 261 (268) P.C
25
U Pe v. U Maung Muang Kha, 10 Ran. 261 (268) P.C
26
Maung Shwe Kho v. Ma Mya, 9 B.L.T. 87; Ma E Nyun v. Maung Tok Pyu, II U.B.R. (97-01), 39; Ma Hla Aung
v. Ma E, S.J. 219; Lu Gale v. Maung Sein, 6 L.B.R. 16; Maung Ba v. Ma Ok, II U.B.R. (02-03) mar., 1
27
Ma Hnin Ngon v. Maung Aung, S.J. 73.; Ma Mai Hla v. Maung Po Thone, 7 Ran 98
28
Maung Nyunt Tin v. Ma Pu, 1954 BLR 76
29
Ma Ami Gyi v. Maung Hmut, 11 U.B.R. (97-01), 37
30
The 2011 Pyidaungsu Hluttaw Law No. 2, 29 September, 2011
31
Ma Paing v. Maung Shwe Phaw, 5 Ran 296 (332) F.B
32
May Oung, U, Leading cases of Buddhist Law, 108
33
Manugye, Book 12, Chapter 3
34
Maung Hmon v. Maung Meik, 11 U.B.R (04-06), 1
62 Dagon University Research Journal 2012, Vol. 4

and wife stand in the relation of nissiya and nissita, the nissaya gets two thirds and nissita one
third of their joint property.35
Inherited Property
On a divorce by mutual consent the nissiya gets two-thirds and the nissita one-third of
the inherited property.36 Partition of property when there is divorce by mutual consent, when
the husband has married twice-where a man marries two wives in succession and his second
wife desires to divorce him and he consents to it, on divorce and partition, the second wife is
entitled to get two-ninths of the property brought by the husband to the first marriage, one-
sixth of the jointly acquired property of the first marriage, two-ninths of the property inherited
by the husband during the first marriage, one-third of the jointly acquired property of the
second marriage37 one-sixth of the property inherited by the husband during his second
marriage.38
If it is the first wife who desires to divorce the husband and the husband consents to it,
on divorce and partition, the first wife is entitled to get one-third of the property brought by the
husband to the first marriage, half of the jointly acquired property of the first marriage, one
third of the property inherited by the husband during the first marriage, one-third of the jointly
acquired property of the second marriage, 39 and one-sixth of the property inherited by the
husband during his second marriage.40
Divorce by Husband Ordination
If the husband becomes a monk let the wife wait seven days after the expiry of which
she is at liberty to marry again, and he shall have no right to claim her subsequently as his
wife41 If a wife marries a second husband on her (former) husband entering the monkhood, no
prosecution shall be instituted against the second husband for seduction, but let him restore her
to the former husband. 42
Matrimonial Faults
There are two kinds of matrimonial faults. They are:
(1) Ordinary matrimonial fault
(2) Grievous matrimonial fault.
Ordinary matrimonial faults included: (a) misrepresentation,43 (b) adultery on the part
of the husband, 44 (c)Taking another wife by the husband,45 (d) desertion,46 and (e) ordinary
cruelty.47
Grievous matrimonial faults included: (a) adultery on the part of the wife, 48 and (b)
grievous cruelty. 49

35
Ma Myin v. Maung Twe, 11 UBR (04-06), 12
36
Ma Sai v. Maung Yan Gin, 2 U.B.R (14-16 ), 127
37
Maung Po Nyun v. Ma Saw Tin, 3 Ran 160
38
C.T.P.V. Chetty Firm v. Maung Tha Hlaing, 3 Ran 322 (f.B)
39
Maung Po Nyun v. Ma Saw Tin, 3 Ran 160
40
C.T.P.V. Chetty Firm v. Maung Tha Hlaing, 3 Ran 322 (f.B)
41
Manugye Dhammathat, Vol. V, Chapter XVII
42
Attasankhepa Vannana Dhammathat, Section 321
43
Ma Khin v. Maung Gale P.J 130
44
Ma Thein Nwe v. Maung Kha, 7 Ran 451
45
Maung Hme v. Ma Sein, 9 L.B.R 191 (F.B)
46
Daw Khin Pu v. Dr. Tha Mya, 1949 BLR, 283; Dr. Tha Mya v. Daw Khin Pu, 1951 B.L.R 108
47
Maung Kywe v. Ma Thein Tin, 7 Ran 790
Dagon University Research Journal 2012, Vol. 4 63

Ordinary Matrimonial Faults

(a) Misrepresentation
When a man had been induced by misrepresentation to marry a girl or a girl had been
induced by misrepresentation to marry a man, the deceived person may claim dissolution of the
marriage.50
(b) Adultery on the part of the husband
Adultery by itself on the part of the husband does not entitle the wife to claim a
divorce.51 In the case of Mrs Joubert Bwa v. Joubert Bwa,52 it was held that having the
infectious disease from the husband to the wife is an apparent fact that the husband committed
adultery with a prostitute. Infecting the wife by mean of that way is another kind of cruelty and
entitled the wife to claim a divorce.
(c) Taking another wife by the husband
According to the Dhammathats, the husband may marry many wives and the old
decisions taking another wife by the husband is not grievous fault. Thus the first wife cannot
claim for divorce.
(d) Desertion
If the wife having no affection for the husband deserts him for one year and during that
period he does not maintain her then he may dissolve the marriage tie if he likes to do so. If the
husband having no affection for the wife deserts her for three years and during that period he
does not maintain her then she may dissolve the marriage tie if she so desires. 53
Where a Myanmar Buddhist husband deserts his wife and for three years neither
contributes to her maintenance nor has any communication with her the marriage tie is
automatically dissolved is incorrect. Such conduct on the part of the husband evidences his
desire for dissolution of the marriage bond and cannot in itself suffice to dissolve the bond
created by mutual consent of the husband and wife. For that bond to be dissolved it is
necessary that the wife reciprocates the desire, the reciprocation may be express or by conduct
clearly pointing in that direction. 54
(e) Ordinary cruelty
Cruelty by the husband or the wife, is a matrimonial fault for which the other party can
claim divorce. Cruelty may be in any means. Some mental pains are rather worse than the
physical cruelty. Hence, one spouse is entitled to divorce if the other spouse makes cruelty
leads to mental pain. 55

48
Ma Me Hla v. Maung Po Thone, 7 Ran 98
49
Daw Pu v. Maung Tun Kha, 1946 Ran 229
50
Manugye, Book V, Chapter VII
51
Ma Thein Nwe v. Maung Kha, 7 Ran 451
52
Mrs Joubert Bwa v. Joubert Bwa, 1948, B.L.R 132
53
Manugye, Book 5, Chapter 17
54
Dr. Tha Mya v. Daw Khin Pu, 1951 B.L.R 108(S.C)
55
Mrs Protima Ghosh v. Bimalandu Ghosh, 1963, BLR, 526
64 Dagon University Research Journal 2012, Vol. 4

Grievous Matrimonial Faults

(a) Grievous cruelty
In order to constitute cruelty ill-treatment in the shape of physical violence or infliction
of mental pain must be done with indifference or delight in pain caused to the sufferer.56
While a single act of cruelty (or cruelty on one occasion only) will attract the rule of
partition as on divorce by mutual consent. Where cruelty is aggravated by the guilty party who,
instead of being repentant, is desirous of divorce or by it being committed with intent to force
the other party to seek divorce or by frequent repetition of acts or cruelty or amounts to
grievous hurt within the meaning of Section 320 of the Penal Code, the guilty party forfeits his
or her interest in the joint property of the couple. Atetpa property of an eindaunggyi, here also
will be saved from forfeiture similar to that in the matter of adultery by the wife.
(b) Adultery on the part of the wife
Under Myanmar Customary Law, husband can take hnapazon property only when he
can prove that his wife is living in adultery. 57
Until the husband proves adultery on the part of the wife in a suit for divorce, the wife
does not forfeit her share in the joint property on mere allegation of adultery; so the joint
property of the marriage must be divided on the footing that the marriage has become
dissolved by desertion.58
Partition of property on divorce
Under Myanmar Customary Law, partition of property could be made only after
divorce.59 For the purpose of partition on divorce, the properties of Myanmar Buddhist
married couple may be classified as follows;
(1) payin
(2) lettetpwa
(a) ordinary lettetpwa
(b) lettetpwa by succession
(3) hnapazon
In deciding the method of partition, three points must be taken into consideration,
namely:
(1) whether the parties are eindaunggyis or ngelin-ngemaya;
(2) whether the parties stand in the position of nissaya and nissita;
(3) whether the divorce is by mutual consent or for some matrimonial fault. 60
Eindaunggyi and ngelin-ngemaya
For the purpose of partition on divorce when neither the husband nor the wife has
married once before, they are to be classed as ngelin-ngemaya (husband and wife of youth).61

56
Daw Pu (a) Daw Pu Gyi v. Maung Tun Kha, 1946 R.L.R, 125
57
Daw Thein Mya v. Daw Kyin (a) Akyin , 1984 B.L.R, 328
58
Ma Dun Mai v. Maung San Tun, A.I.R 1938 Ran 168
59
Daw San Yi v. Ma Kyawt Kyawt Khin,e 1984 B.L.R, 76
60
S.C. Lahiri, Principles of Burmese Buddhist Law, VI Edition, 1957, 107-108
61
NAVR Chettyar Firm v. Maung Than Daing, 9 Ran 524(529) S.B
Dagon University Research Journal 2012, Vol. 4 65

Even if one of them has married once before, still they are to be classed as ngelin-ngemaya.62
When ngelin-ngemaya divorce and soon after re-unite, they are still to be classed as ngelin-
ngemaya.63
But when both the husband and wife have married once before, they are to be classed
as eindaunggyi (previous married persons).64
Custody of Children (parental rights)
In dealing with application of the custody of the child, the welfare of the child is of
paramount importance and out weight any other considerations.65
In Ma Tin Nyunt v. Ko Aung Thin,66 the applicant Ma Tin Nyunt applied to the court to
have chance to care for the 10 months old child. As her husband suspected the wife of not
caring well for the child because of difficulties in delivery, the child was left with her husband
Ko Aung Thein when they were separated. Dr. Maung Maung, justice of the Chief Court, held
that “In cases of custody of children, previous judicial decisions are only for guidance and the
most important factor for the court to take into consideration is the welfare of the child”.
Especially when the child is of a tender age, the mother is more appropriate for the custody
than the father. This is the natural rule practiced by all nations.
Rights of inheritance
Inheritance is the subject which most strikingly indicates the equality of Myanmar
Buddhist women with men. Myanmar Buddhist married women are entitled to definitely equal
right of inheritance, compared to men. This is a very distinct feature of Myanmar Customary
Law of inheritance.
The most important general principle of Myanmar Law of inheritance is that: “On the
death of a husband or wife, without children, the survivor succeeds to the whole of the
estate.”67
Where there is an “orasa child”, the orasa takes a quarter share and the surviving
spouse tales the remaining three quarter. Among the children, the orasa has a privileged
position. On the death of the parent of the same sex, the orasa can claim one-fourth share of
the estate. If in accordance with the requirements of orasaship, either a son or a daughter may
become an orasa. There is no distinction between son and daughter to be orasa. On the
remarriage of the surviving parents, all the children have the right to claim for inheritance.
Adoption
Myanmar Customary Law recognizes the adoption. Any person who is competent to
contract can adopt a child68 and a boy or a girl or an adult can be adopted. A woman or man
has the right to adopt and a child according to Myanmar Customary Law. Myanmar Child
Law69 states that “Every child shall have the right to be adopted in accordance with law
without discrimination of sex.”

62
Ma E Nyun v. Maung Tok Phyu, 11 UBR (97-01), 39
63
Ma Saing v. Maung Yan Gin 2 U.B.R (14-16), 127
64
Manugye Book 12, Chapter 3; Ma Saing v. Maung Yan Gin, 2 U.B.R (14-16), 127
65
Mg Aung Khin v. Ma Saw Hla, 1958 B.L.R (H.C), 311
66
Ma Tin Nyunt v. Ko Aung Thin,1963 B.L.R CC, 287
67
Maung Waik v. Maung Nyein II, U.B.R (1897-01), 146
68
Maung Maung, Dr, Law and Custom in Burma and the Burmese Family, The Hague, Martinus Nijhoff, 1963,
89
69
Myanmar Child Law, 1993, Section 7(a)
66 Dagon University Research Journal 2012, Vol. 4

Under Myanmar Customary Law, adopted child is the heir of the adoptive parents.
Since there is no distinction of male and female for inheritance under Myanmar Customary
Law, the girl child who was adopted has got the right to inherit from her adoptive parents.
Adoption in Myanmar is related to not only the parental hood but also the property right. But
there must be registered the deed of adoption according to “The Registration of Kittima
Adoption Act, 1939.”
Findings and Discussions
A consistent feature of the Myanmar family has been the freedom of the individual.
The equality of women is recognized not in the home only, but in public life as well. The
Myanmar commoner chooses as wife an equal, to be his helpmate, they shared their daily life,
its common toil and interest, their children grew up under the case of an equal man, an equal
woman. The amount of the maintenance of wife and child under criminal proceeding is not fair
for the prevailing period. In civil suit, to get maintenance of the wife who does not have own-
earning is not suitable for her.
Conclusion
Myanmar women play an active part in the economic, social and cultural sectors of the
nation. Myanmar women not only are capable of fulfilling their duties whether for family or
for the sake of others, they are also known to have valour and perseverance and capability
equally with men in overcoming difficulties. Till today they have been actively participating in
promoting national spirit, patriotic spirit and the Union Spirit as well as in developing the
Myanmar society and nurturing the younger generation. At a time when Myanmar was
building up a new modern nation, the Myanmar women were urged to serve the better interest
of the nation by taking part in nation- building tasks with courage, conviction and perseverance
in parallel with men. In keeping with the tradition of our history, Myanmar women have
played each of their roles to the best of their ability in striving for the benefit of the nation and
the people, in effecting the development and advancement of the Myanmar society and in
nurturing the new generation to have a high standard of morality and patriotic spirit. Thus
indeed, Myanmar women roles are of great importance to our country.

Acknowledgement
My special thanks are due to Dr. Hla Htay, Rector of Dagon University and Dr. Aye Aye Tun, Pro-
Rector of Dagon University for their permission to include this paper in the Research Journal of Dagon
University. I am greatly indebted to Dr. Mon Mon Tar, Professor & Head, Department of Law, Dagon University
and Dr. Kyu Kyu Swe, Professor, Department of Law, Dagon University, for granting permission to use available
facilities in the Department and for their encouragement, guidance and supervision. My sincere gratitude goes to
Dr. Daw Than Nwe, Professor & Head (Rtd.), Department of Law, Yangon University, for her kind advice,
supervision and contribution of helpful documents.

References
Lahiri. (1957). “Principles of Burmese Buddhist Law”, 6th Edition
May Oung, U. (1926). “A Selection of Leading Cases on Buddhist Law”, 2nd Edition, British Burma Press,
Rangoon
Mg Mg, Dr. (1963). “Law and Custom in Burma and the Burmese Family”, The Hague Martinus Nijhiff
Mya Sein, U, (2004). “Myanmar Customary Law”, 10th Edition
The Myanmar Code. (1979). Vol. VIII, Government Printing Press