colonial intimacies in comparative perspective: intermarriage ......cultural milieu of the 1930s in...

© 2013 Chie Ikeya and The Johns Hopkins University Press

Colonial Intimacies in Comparative Perspective:

Intermarriage, law and cultural difference in British Burma

Chie Ikeya

Rutgers University

Abstract

Since the pioneering work by Ann L. Stoler revealed that ―matters of intimacy‖ were

―matters of state,‖ there has been increased scholarly attention to colonial families,

domesticities and sexualities. Yet this flourishing area of inquiry remains limited by

its preoccupation with relations between European men and ―Native‖ women and

inattention to unions between locals and ―Oriental‖ or ―Asiatic‖ foreigners whose

mass migration was encouraged throughout the various European empires. This

paper examines comparatively these prevalent intimate encounters in British Burma

and shows important commonalities in the way that affective ties, family affairs and

anxieties about intermarriage were managed and confronted.

Introduction

In 1939, the recently established left-wing, nationalist Kyi Pwa Yei or ―Progress‖

press published what is probably the most extensive and elaborate Burmese-language

diatribe against intermarriage and miscegenation. The 350-page book Kabya

Pyatthana (The Half-Caste Problem) by U Pu Galay claimed that marriages between

Burmese women and Indian men, and the half-caste children of such unions,

threatened a spiraling destruction of the Burmese race and culture.1 For a country

described by historians and early European travelers as tolerant and even supportive

of mixed marriages, Kabya Pyatthana may seem like an aberration. Yet this polemic

against intermarriage and miscegenation was in fact representative of the socio-

cultural milieu of the 1930s in Burma, when intimate relations between Burmese

women and foreign men were widely denounced.2 As the British administration

noted in its report on the 1938 anti-Indian riot, one of the most intense and protracted

outbursts of communal violence in colonial Burma, ―one of the major sources of


anxiety in the minds of a great number of Burmans was the question of the marriage

of their womenfolk with foreigners in general and with Indians in particular.‖3

Since the pioneering work by Ann L. Stoler revealed that ―matters of

intimacy‖—i.e., sex, sentiment, domestic arrangements and child rearing—were

―matters of state,‖4 there has been increased scholarly attention to colonial families,

domesticities and sexualities. Studies modeled on Stoler‘s have made significant

progress in querying the impact of colonialism on local understandings of gender,

racial and ethnic identities and relations.5 Yet, Stoleresque studies of the intimate

remain limited by their preoccupation with relations between European men and

―Native‖ women.6 Texts such as Kabya Pyatthana lead us to direct our attention

away from such relations and towards those between members of the local population

and the so-called Oriental or Asiatic foreigners whose mass migration was

encouraged throughout the various European empires. In colonies such as British

Burma, unions between local women and male migrants from China and South Asia

were far more prevalent than the former form of intermarriage, as evinced by the size

of ―half-caste‖ populations in Burma. At the turn of the twentieth century, for

example, there were 20,423 ―Indo-Burmans‖ and 9,974 Eurasians; by 1931, the

number of Indo-Burmans had increased almost ninefold (182,166), whereas that of

the Eurasians had only doubled (19,200).7

This article explores what these neglected forms of the intimate suggest about

colonial families and domesticities and the interplay between the macroeconomics of

colonialism and the affective economy of the household. Through an examination of

civil court cases and jurisprudential debates dealing with marriage, adultery, divorce,

inheritance and adoption, it investigates the two most common forms of transcultural

intimacies in colonial Burma—―Indo-Burmese‖ and ―Sino-Burmese‖—analyzing

them in a comparative framework that reveals differences and similarities with the

paradigmatic ―Eurasian‖ or ―Anglo-Indian‖ marriage. This comparative perspective

highlights important commonalities in the way that affective ties, family affairs and

anxieties about intermarriage were managed and confronted.

It goes without saying that my sources raise the vexed question of using court

records to study matters of intimacy. Documents produced under highly regulated


circumstances of the courtroom give us only an incomplete and fragmentary picture

of the lives of the litigants and witnesses, even when the individual testimonies are

registered. Sally Engle Merry has shown that the everyday life seen through the lens

of juridical records is always ―mediated by the language of the law and the

perspective of their writers.‖8 In addition, only a selection of especially important

civil cases in the high court were compiled and published as law reports by the British

colonial administration in Burma. The preponderance of urban and comparatively

wealthy individuals, couples and families among civil cases recorded for posterity

may reflect the selective nature of colonial law reports.

Nevertheless, court records provide a rare window into the inner workings of

Indo- and Sino-Burmese domesticities. As with civil cases in colonial India,9 those

examined here underscore the creativity and resourcefulness of the plaintiffs,

defendants, appellants and their attorneys, who knowingly crafted narratives of

kinship ties and cultural affinity that they calculated were most likely to result in a

favorable outcome under plural legal jurisdiction—a legal system extended to Burma

upon its piecemeal incorporation into the British Raj starting in 1826.10

In a plural

legal order, cases related to family relations and religion were exempted from the civil

law of the state and were made subject to the ―personal law‖ of the individuals

involved in the dispute.11

Just as the British identified the indigenous religious

systems that would form the basis for laws of the family as Hindu and Muslim and

worked to codify them accordingly,12

the British in Burma identified Buddhism as the

indigenous religious system that would form the basis for laws of the family.13

The

indigenous dhammasat texts—extant in thousands of palm-leaf and paper manuscript

versions that attest to their popularity in precolonial Burma—were recognized as the

legal and ethical treatises that outlined appropriate Buddhist social practices and

methods of dispute settlement and the foundational sources of ―Burmese Buddhist

law.‖ Accordingly, in cases concerning marriage, divorce, inheritance and

succession, the courts administered the ―Burmese Buddhist law‖ in cases where the

parties were Buddhists, ―Mohammedan law‖ in cases where the parties were

Muslims, and ―Hindu law‖ where the parties were Hindus. Litigants often knew and

calibrated the attendant prerogatives and penalties of each law and opportunistically

and purposefully appealed to such notions of cultural difference as ―Chineseness,‖

―Burmeseness,‖ ―Hinduness,‖ and ―Muslimness‖ in an attempt to privilege an


understanding of conjugality and family that most suited their needs at the time. In so

doing, plaintiffs and defendants inserted themselves into broader debates about

communal identity and its definition and boundaries. Their actions worked to both

throw into question and, simultaneously, concretize colonial categories of rule.

My use of the term ―Indo-Burmese‖ requires a brief explanation. The British

administration employed a similar term, ―Indo-Burman,‖ to refer namely to the

Burmese vernacular term zerbadee, the descendant of a Muslim father and a Burmese

Buddhist mother.14

Neither the term ―Indo-Burman‖ nor zerbadee was used to

include the offspring of non-Muslim Indian men and Burmese women, for which the

census did not provide a separate category. The category Sino-Burmese likewise

never entered the colonial census in Burma. The only classifications available for

people of multiple or mixed racial identification were ―Anglo-Indian‖ (which

replaced the original ―Eurasian‖) and ―Indo-Burman.‖ I apply a more capacious

meaning to the term ―Indo-Burmese‖ not only to attend to a wider range of affective

relations between Indian and Burmese men and women but also to reframe these

forms of the intimate as transcultural, rather than simply transreligious or transracial,

conjugalities and families.

Finally, it should also be noted that terms such as ―Indo-Burmese‖ and ―Sino-

Burmese‖ are not meant to presuppose the existence of fixed and separate cultural

formations. Underlying my approach to this category of difference is a view well

articulated by Sheldon Pollock that ―all culture is really transculture,‖ a continuous

process of historical transformation. The stories of transcultural intimacies that

unfold in the following pages call into question a conception of culture as an already

perfected, closed and stable repertoire of practices ―existing before and standing

outside the vagaries of historical process.‖15

They highlight the protean and

contingent character of cultural difference, which ambiguously fused categories of

class distinctions, lineage, nationality, social customs, habits and rituals with

emergent notions of religion and race, lending itself to deployment not only by

colonial authorities but also by colonized subjects in their respective endeavors to

legitimate gradations of power and disempowerment. They frustrate such categories

as ―Chinese,‖ ―Indian,‖ ―Burmese,‖ ―Hindu,‖ ―Muslim,‖ and ―Buddhist‖ imposed

upon the litigants by the colonial administrative machinery and throw into sharp relief


the historicity, instability and amorphousness of these putatively unchanging and

unitary identities.

Bound by Law? Legal Pluralism and the Intermarriage Problem

In the decades following the British annexation of Lower Burma in 1850, men, and to

a much lesser extent women, came from the colonial metropole, British India and

Malaya, the Straits Settlements, as well as China, to fill the numerous administrative,

commercial, industrial and agricultural niches created by industrialization and the

expansion and elaboration of the infrastructure, the financial system and the capitalist

market economy in Burma. Integration into British India triggered a steady stream of

a diverse array of Bengali, Tamil and Telegu kala (Indian)16

and Hokkien, Cantonese

and Hakka tayoke (Chinese) clerks, traders, workers and laborers. The large influx of

male immigrants and the minuscule population of kala and tayoke women in Burma

led to a rapid growth in relations between foreign men and local women.17

Although,

as indicated above, census data do not provide information on the Sino-Burmese or

the greater Indo-Burmese population, there was no shortage of administrative—

especially judicial—documents attesting to the prevalence of these forms of

heterosexual coupling. For instance, the chief justice who ruled in a decisive case on

whether Burmese Buddhist law should apply to a Sino-Burmese marriage 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.‖18

While the administration claimed that the ―Burmese-Hindu marriage‖

was less widespread than the ―Burmese-Muslim marriage,‖ it‘s unclear precisely how

much less frequent the former form of intermarriage was, especially given that Indian

Hindu men in Burma far outnumbered Indian Muslim men in 1931 (see Table 1).19


Indians classified by religion

Religion Actual population

Persons Males Females

Hindu 565,609 425,389 140,220

Muslim 396,594 271,514 125,080

Buddhist 12,600 9,778 2,822

Christian 30,135 18,015 12,120

Sikh 10,896 7,882 3,014

Others 1,991 1,333 658

Table 1 (Source: Census 1931, Report, 227)

Following the long-established practice of using intermarriage for the

acculturation—or Burmanization—of sojourners, Burmese women became the

anchors of the families of migrant men, the majority of whom arrived in Burma

effectively kinless and reliant upon locals for kinship in an alien society.20

Yet, the

critics of intermarriage argued, the combined effect of the large-scale importation of

foreign and mostly male labor and enactment of a plural legal system was the

emergence of an unusually pernicious kind of intermarriage that stripped Burmese

women of their customary rights as represented in the dhammasat texts. The

problem, as described during a Legislative Council meeting in 1927, was that under

the British colonial administration, the dhammasat texts no longer governed

marriages between Burmese women and foreign men:

Now a marriage with a Hindu was not valid because a caste Hindu

could not marry outside his caste; a marriage with a Moslem could not

be legally effected unless the Burman Buddhist woman became a

Moslem convert; even after such conversion, the Moslem husband

retained the right to marry as many as four wives and he had only to

pronounce the word Talak three times if he desired to divorce his

Burman wife or any other wife.21


In other words, women forfeited the benefits of the status of a married woman under

Burmese Buddhist law such as an equal share in the property acquired by a woman

and her husband during the marriage and joint custody of all the children in the event

of divorce.

An earlier case exemplifies this concern. In 1906, a Burmese woman who had

lived for sixteen years with a Hindu man as husband and wife by his own admission

found that she was not considered his lawful wife. The ―husband,‖ Doramoswami,

testified as follows:

Ma Shwe Me is my wife. I took her to wife about 16 years ago. She

and I had been living together since then. She bore me six children. I

do not eat with her, but I sleep with her. I cook my own food and eat

it.... I own paddy land, which is in my name and in that of Ma Shwe

Me. I gave her only 100 baskets of paddy and about Rs. 60 a year. I

also supply her children with clothes. No one gave her to me in

marriage. I had to woo her for about three months.22

However, he argued that they were not lawfully married because Ma Shwe Me was

not Hindu and therefore had no right to his property. The presiding judge concurred:

―I think it is impossible to avoid the conclusion that Doramoswami is subject to

Hindu law, and that Ma Shwe Me is not his lawful wife.‖23

A 1929 case that upheld the legality of an Indo-Burmese marriage between

one Ma Chit May and a zerbadee man Dawood also demonstrates the precarious

position of the wife. Ma Chit May had eloped with Dawood and was converted to

Islam by a moulvi in the presence of Dawood‘s mother, Ma Shwe Baw, in order to

solemnize their marriage. The couple lived together as husband and wife for about

nine years and had two children who were raised Muslim. Upon Dawood‘s death,

however, Ma Shwe Baw claimed that her son was never lawfully married, his children

were illegitimate, and she, not Ma Chit May, was the rightful heir to her son‘s

possessions. The moulvi testified that he had not married the couple though he had

converted Ma Chit May. In explaining his ruling in favor of the widow, the presiding

judge emphasized the strong evidence of ―cohabitation and repute‖ in the case. While


acknowledging that there were questions as to ―whether the formalities required by

Mohamedan Law for a valid marriage were observed,‖ he doubted ―the necessity for

insisting on these requirements when there was strong evidence of subsequent living

together as man and wife.‖24

Yet his decision also highlights the centrality of

conversion to the validity of the marriage. If not for her conversion, Ma Chit May

would have in all likelihood lost the case despite the admission by the very relatives

who challenged the legitimacy of the marriage ―that she behaved in every way as a

wife, that she was looked on as a wife by them, that her children were treated as

Dawood‘s children and that they had no complaint whatsoever to make as to her

conduct as wife.‖25

It is worth pointing out that conversion posed a challenge not only in the case

of the Muslim-Burmese but also the Christian-Burmese marriage. Though conversion

was not a requirement to effect a lawful marriage between a Christian and a Burmese

Buddhist individual, which could be contracted by civil contract before a registrar,

such marriages nevertheless took the conjugal relations outside the pale of Burmese

Buddhist law. For example, the Buddhist party in such marriages could not sue a

Christian spouse for divorce. Either way, the marriage meant civil death for the

woman in the eyes of Burmese Buddhist law. The Sino-Burmese marriage was

similarly problematic. While a union between a Burmese Buddhist and a Chinese

―Confucian‖ or ―Taoist‖ could be legally contracted without religious conversion, the

personal law of the parties determined inheritance and succession. Even in marriages

that involved Chinese Buddhist spouses, the court still held that Burmese and Chinese

Buddhism had little in common and that in so far as succession was concerned,

―Chinese customary law‖ or the Indian Succession Act—the so called rule of justice,

equity and good conscience—should apply.26

All of these forms of intermarriage had

the potential to, and did at times, infringe upon the rights of a Burmese Buddhist

woman.

The colonial plural legal system could work to the disadvantage of the Indian

or Chinese party as well. For instance, in 1892, a Muslim man, Mouna Maung Gale,

sued the lover of his Burmese wife Ma Pu for adultery. According to the plaintiff, Ma


Pu was an observant Muslim whom he had married by offering money to the mosque

and giving matrimonial consent in the presence of witnesses:

Ma Pu had to live and eat according to our custom. We became

husband and wife by consent in the presence of witnesses without

performing marriage ceremony with the native lugyis [respected

elders]. I have four wives, two women of my race and two Burmese

women. On the occasion of my marriage with each of the four women

I had to put into the mosque Rs. 25 according to our custom.27

Despite the district magistrate‘s view that ―there were many respectable persons of

different races who lived together as man and wife‖ and ―the Government has issued

no notification that such marriages were not legal,‖28

Mouna Maung Gale ultimately

lost the case on the basis that Ma Pu had not converted to Islam and therefore was

never his lawful wife. Even in cases where conversion to Islam by the wife was

proven, it was not uncommon for the Muslim husband to find that he had lost all his

conjugal rights upon her apostasy.29

Apostasy was one among other matrimonial

strategies available to a woman seeking to reassert her traditional legal rights as a

Burmese woman.

However, we must not lose sight of the broader picture of Indo- and Sino-

Burmese marriages that emerges from the court records, which supports the statement

by the district magistrate in the case against Ma Pu that ―there were many respectable

persons of different races who lived together as man and wife‖ without the legality of

their unions being questioned. In practice, the enforcement of plural legal jurisdiction

was inconsistent and many judges modified the rule of personal law as they saw fit.

In a 1927 case that raised the issue of whether a Chinese Buddhist widow was entitled

to inherit all her deceased Chinese husband‘s property, the presiding judge pointed

out that whereas the Chinese customary law excludes a widow from inheritance when

there are surviving sons or daughters, ―the rule that the widow does not inherit has not

hitherto been adopted in the Courts in this country,‖ adding that in the most recent

ruling on the subject, the court found that the widow was entitled to a one-third share

of the deceased husband‘s estate.30

Similarly, judicial officials often chose to

recognize a marriage between a Buddhist and a Hindu rather than annul it and

bastardize its offspring, despite the prevailing theory that a marriage between a Hindu

and a Buddhist could not be legally contracted.31

The marriage of Seniyappa


Anamalay, a Tamil migrant from Madras, and Ma Me, a Buddhist Burmese woman,

which came to the attention of the Chief Court of Lower Burma in 1906, is probably

typical of many an Indo-Burmese marriage. In describing their marriage of

approximately seventeen years, Seniyappa admitted that they had had no formal

marriage ceremony but had agreed to live together and did so until Ma Me passed

away, stressing that she cooked for him and they together went to Buddhist pagodas

to worship. While acknowledging that a Hindu cannot legally marry a Burmese

Buddhist woman, the chief justice who decided the case in the widower‘s favor

maintained that ―the frequency of permanent alliances between Tamil cultivators and

Burmese women in this province tends to show that Tamils of the lower orders do not

consider themselves bound by a rule of Hindu law which Hindus of the recognized

castes regards as one of the essentials of their religion and system.‖32

Although conversion was in principle a crucial element of some of the Indo-

Burmese marriages, the transformation was often more symbolic than substantive,

echoing the pattern of Sino-Malay marriages in British Malaya where Chinese men

became Muslims nominally for the purpose of marrying Muslim Malay women.33

In

one such case from 1875, all parties acknowledged that the Burmese wife Mi Shwe

Ywet ―never was anything else than a Buddhist, though to enable her husband to

marry her she did profess Mahomedanism,‖ emphasizing that the couple had also

been married by Burmese customs, i.e., the husband had asked permission of her

parents to marry her and provided bride price.34

By and large, civil cases involving mixed families challenge what Gauri

Viswanathan calls ―conversion as assimilation,‖ a presumption that conversion

entailed a comprehensive change of habits and customs,35

and call attention to the

transcultural character of their familial ties that defied fixed juridical notions of racial,

religious and cultural identities, communities and customs. Three cases, each

separated by roughly a decade, pertaining to succession or inheritance of Indo-

Burmese and Sino-Burmese families serve as telling examples.

Ma Le and Ma Me v. Maung Hlaing and Ma Mi (1905)

In February 1905, two zerbadee women filed an appeal against a decision by the

District Court of Mandalay that decided that Muslim law, not Burmese Buddhist law,


should apply to Muslim zerbadees in so far as inheritance and succession were

concerned.36

The appellants argued that there was ―abundant evidence that outside

the Courts the Zerbadis [sic] voluntarily and habitually applied the Buddhist law in

cases of inheritances[,] that immemorial usage amounts to consent of the people who

are subject to the law.‖37

As evidence, the appellants presented the prior judgments of

Justice Richardson, a veteran judge in the civil court of Mandalay, showing that in

applying the Burmese Buddhist law to zerbadees in inheritance matters, the British

courts were following the practice not only of the Burmese courts but of the

zerbadees themselves. In addition, over a dozen witnesses were called to testify in

support of the claim that the Burmese Buddhist law was the invariable rule of

decision in inheritance cases among zerbadees in Mandalay. The witnesses included:

a mulla and long-time resident of Mandalay who testified that prior to and

immediately after the British annexation of Upper Burma, questions of inheritance

amongst the zerbadees were decided among themselves voluntarily as well as in the

courts according to the laws applicable to Burmese Buddhists; a Persian man who

stated that in the forty years that he lived in Mandalay, he had not once heard of a

zerbadee requesting the application of Muslim law; an elderly zerbadee and honorary

magistrate of Mandalay who explained that Muslim zerbadees did not strictly follow

the Burmese Buddhist law, thought they were guided by it and in general chose to

deal with matters of inheritance without going to the courts; a fifty-year-old zerbadee

lawyer and a Burmese Buddhist ex-official both of whom not only affirmed that cases

involving zerbadees were not decided according to Muslim law but also characterized

the zerbadee community as basically Burmese except for their religion; and a haji

who asserted that if zerbadees went to court, their inheritance cases were decided by

Buddhist law whereas if the division was made outside the court, ―it was neither

according to Buddhist or Mahomedan law, but just as was thought fit.‖38

In this case as in earlier civil cases concerning zerbadees, the court

acknowledged what it perceived to be the assimilation of the zerbadee population,

noting in particular that most zerbadees had Burmese names, spoke only Burmese and

dressed Burmese. The presiding judge even went so far as to compliment the lawyer

for the appellants for persuasively demonstrating that ―there is existing from time

immemorial a custom having the force of law, by which questions of inheritance and

succession affecting the Zerbadis of Mandalay have been decided by Buddhist law.‖39


Nevertheless, he dismissed the appeal, concluding that this custom that had been

―forced on the Zerbadis by a despotic monarchy‖ that, unlike the just British

administration, refused to permit the application of any other law in courts.40

Ma Yait v. Chit Maung and Maung Chit Maung v. Ma Yait and another (1913–21)

In August 1921, the Privy Council heard two consolidated appeal cases from the

Chief Court of Lower Burma concerning the estate of a wealthy Indo-Burmese

merchant and respected member of Rangoon‘s elite circles, Ohn Ghine, who died in

1911.41

He had left a will appointing his wife Ma Yait and daughter Ma Noo as

trustees of his estate, but his son Chit Maung disputed this provision, contesting the

validity of the will on the basis that his father was Hindu. Had Hindu law been

applied to Ohn Ghine‘s estate, as requested by Chit Maung, Ma Yait and Ma Noo

would have been entitled only to maintenance—and only until (re)marriage—out of

the estate, which would have been handed over to one of Ohn Ghine‘s sons for

administration. The issue to be decided therefore was the religious status of Ohn

Ghine.

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.‖42

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.‖43

No one denied that he could not be

considered an orthodox Hindu. But could Ohn Ghine be considered sufficiently

Hindu to warrant the application of Hindu law to his estate? The lawyer for Ma Yait

portrayed Ohn Ghine as primarily Buddhist, emphasizing that he had sent his sons to

a monastic school for Buddhist instruction, arranged the marriage of Chit Maung to a

Buddhist Burmese woman according to Burmese custom and took a leading role in

supporting a number of notable Buddhist projects. For example, in 1900, Ohn Ghine

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 went on a pilgrimage to the Buddhist temple of the Sacred Tooth Relic in

Kandy (Lanka) with fellow Burmese pilgrims.


As Justice Twomey argued, however, evidence presented by Chit Maung did

not show that his father, ―in spite of his liberality to Buddhist monks and his liking for

Buddhist prayers and practices,‖ had renounced his Hindu faith.44

Especially

important to Twomey was the fact that Ohn Ghine did not shinbyu his sons–that is,

sponsor the temporary ordination of his sons as monks—and continued his support of

the Hindu temple in Rangoon, serving as one of its trustees. Twomey also found

instructive that Ma Yait chose to observe Hindu rites at her husband‘s cremation—

though she had also invited Buddhist monks—and sent his ashes to Benares.

Nevertheless, the Privy Council determined that Ohn Ghine, as with the Indo-

Burmese community in general, could not be regarded as Hindu because of the fact

that his ―Hindu-ness‖ was so divergent from ―pure‖ Hinduism as to render him non-

Hindu.45

In the end, the Council decided that the Indian Succession Act should apply

to his estate.

Phan Tiyok v. Lim Kyin Kauk (1930)

The final case, involving all five judges of the Full Bench and a discussion of no less

than nineteen precedent cases over almost one hundred pages, settled the issue of

whether Burmese Buddhist law should govern succession to the estate of one Baw

War, a Buddhist Chinese who had been domiciled in Burma prior to his death in

1923. As Chief Justice Heald noted, the real contest was between his second wife Ma

Hnin Bu, with whom he had two sons and three daughters, and the daughter and son-

in-law of the deceased first wife. The two parties concurred that Baw War was a

Buddhist; the question was what kind of a Buddhist he was, Chinese or Burmese. Ma

Hnin Bu‘s children insisted that their father was a ―Chinese Buddhist‖—that is, a

Buddhist whose customs and practices were also profoundly shaped by

―Confucianism‖ and ―Taoism‖—and pleaded that the Chinese customary law be

applied to his estate, effectively granting administration of the estate to the two sons,

Lim Kyin Kauk and Lim Kyin Swi, and maintenance to the widow and daughters.

Ma Lwe and Phan Tiyok, the daughter and son-in-law from the first marriage, did not

dispute the claim that Baw War was a ―Chinese‖ and a Buddhist but argued for the

application of the Burmese Buddhist law, maintaining that her father routinely

performed many of the common forms of obtaining merit among Burmese Buddhists,


such as sponsoring shinbyu ceremonies for the sons of other people, building zayats

(public rest-houses for pilgrims and travelers) and giving alms to monks and

monasteries. Ma Hnin Bu, in fact, did not contest much of Ma Lwe‘s testimony,

testifying that she had herself invited Burmese Buddhist monks to Baw War‘s

funeral.46

As in the forgoing Indo-Burmese case, rites and ceremonies mattered greatly

in establishing the ―true‖ religious identity and affiliation of the deceased. And as in

the forgoing case, the court could apparently only determine what Baw War was not;

just as Ohn Ghine had been declared ―not Hindu,‖ Baw War was proclaimed ―not

Burmese Buddhist.‖ ―The difficulty with the estates of Chinese [in Burma],‖ Justice

Heald propounded, ―arises from the fact that the Chinese seem to follow several

religions or so called religions at the same time, or that their religion is a mixture of

several religions, so that when they die their relatives are able to describe them as

belonging to that particular religion, out of the two or three or more which they

professed, which will give those relatives a share of a larger share in the estate.‖47

The court concluded that the Indian Succession Act, neither Burmese Buddhist law

nor Chinese customary law, should be applied.

Managing Transcultural Intimacies: Order, wealth and respectability

As these colonial courtroom dramas demonstrate, transcultural couples and families

opportunistically and adaptively reconfigured cultural elements to fashion new and

distinct configurations of practices, habits, rituals and hierarchies. These families

cannot be described as either ―Chinese,‖ ―Indian,‖ or ―Burmese,‖ ―Confucian,‖

―Hindu,‖ or ―Buddhist.‖ Indo-Burmese and Sino-Burmese alike developed their own

customs, however loosely defined and arranged, that diverged from colonially

determined notions of Hindu, Islamic, Chinese, or Burmese jurisprudence. This is not

to suggest that the attitude and approach of transcultural couples and families towards

communal identity and domestic affairs were laissez-faire. For instance, Justice

Heald in the Phan Tiyok v Lim Kyin Kauk case remarked, after reviewing the nineteen

precedent cases, that the Sino-Burmese had customs of their own and maintained a

distinctive socio-cultural organization. We cannot dismiss his assertion that the Sino-

Burmese ―have their own places of worship, which bear no resemblance to Buddhist

temples, and their own cemeteries,‖ and ―retain their own funeral ceremonies, and


particularly, wherever possible, their own peculiar coffins, their own funeral

processions and their own elaborate monuments or gravestones.‖48

While the judge

emphasized separateness of the Sino-Burmese community, minimizing the

community‘s transculturation—after all, the majority of the Sino-Burmese spoke only

Burmese and wore Burmese clothes—and ignoring the fact that the cases he cites

pertain exclusively to well-heeled Sino-Burmese families, it is undeniable that the

group developed a recognizably mixed cultural pattern, a situation that has been

abundantly documented among peranakan, baba, lukjin and other overseas, locally

born and mixed Chinese communities in Southeast Asia.49

The Indo-Burmese

similarly sought to give definition and order to their families and communities,

producing an assortment of conjoined Muslim, Hindu, and Buddhist, and Indian and

Burmese practices and institutions.

In particular, the well-to-do classes of transcultural families developed

disciplinary techniques to regulate ―who bedded and who wedded with whom‖ and

manage the respectability and ―cultural competence‖ of the mixed offspring.50

The

preclusion of their own sons from shinbyu-ing appears to have been one of the most

common regulatory practices among the Indo-Burmese and Sino-Burmese alike, as

were endogamous marriages, especially for the sons but even for the daughters who

were encouraged to take India- or China-born husbands, possibly as a way to integrate

them into the Indo- and Sino-Burmese communities. Among the Sino-Chinese, it was

also not uncommon to send sons to China for education, perhaps as a mark of status

or with the goal of sinicizing them. As Lynn Pan succinctly notes in her discussion of

similar practices of re-sinicization among mixed Chinese populations in Southeast

Asia: ―Foreign they might be, but barbarian they would not.‖51

Indeed, these Asian

colonial subjects shared with Eurasian communities anxieties about the cultural

incompetence of their mixed families, in contrast to litigants representing Indo- and

Sino-Burmese families of less means who showed little concern for their socio-

cultural status or repute.

What was at stake, of course, was not only status but wealth and the uneasy

balancing of ―an economy of familial attachments‖ and ―an economy of familial

wealth.‖52

The three cases discussed above, as well as the dozens of precedent cases

relating to succession or inheritance of Indo-Burmese and Sino-Burmese families


reviewed during the process of adjudication, strongly indicate that the majority of

these legal battles were fought between female family members—usually the widow

and daughter(s)—who asked that the Burmese Buddhist law be applied to the estate of

the deceased, and male relations appealing to Hindu, Muslim or Chinese customary

law in attempting to claim the estate to the exclusion of the widow and daughter(s),

who were often their mother and sister(s). In other words, debates about which law

was to be applied in intestate succession were not about religious traditions or

communal identities per se but a gendered negotiation over the power and authority to

define familial bonds and control who had access to property and privilege and who

did not. Under colonial rule and law, the issue of foreigners‟ access to and control

over local land, labor and resources and men‟s access to and control over women‟s

land, labor and resources were intertwined.

Customs did nevertheless matter, not least because the burden of proof was

increasingly placed upon those arguing that the customary practice of the deceased

should override the ―personal law‖ of an individual, which was naturalized by the

legal authorities because it was determined, in theory, by one‘s professed religious

affiliation but in actuality, by his/her race and nationality. Even if the person in

question ―conformed more or less to Burman Buddhist practices in subscribing to

religious works and festivals,‖53

courts resisted delinking Indians from Hinduism

and/or Islam, the zerbadee from Islam and the Chinese from the tripartite ―Chinese

religion‖ of Confucianism, Daoism and Buddhism. Unsurprisingly, rituals became

vitally important for the Burmese wives in transcultural domesticities who sought to

oversee overt performance of Burmese (and often Buddhist) rites and ceremonies

such as funerals, shinbyu-ing of male kinsmen (if not sons) and donations to the

sangha in such a way that they safeguarded their (and their children‘s) relative status

in the household and their likelihood of inheriting. There were no doubt other

matrimonial strategies, undocumented in the court records, that these women

developed in an effort to subvert a male-dominated colonial legal structure that had

gradually become less responsive towards their concerns and predicaments.

Conclusion

The critics of intermarriage in colonial Burma singled out the Indo-Burmese kind as a

particularly harmful form of intimate relations that reinforced political and economic


colonization with cultural and biological imperialism. This study has shown,

however, that the Indo-Burmese marriage shared much in common with other

transcultural colonial intimacies. Indo-Burmese, Sino-Burmese and even Anglo-

Burmese couples and families faced comparable difficulties as well as opportunities

as domesticities and affective units that defied easy categorization, endured similarly

gendered struggles over family wealth and resources, and adopted overlapping

strategies to these challenges. They all reinforce, to a certain extent, the familiar

argument that the British policy of non-interference towards its colonial subjects in

religious and familial matters and its recognition of personal laws ossified religious

and ethnic identities and eroded heterogeneous customs and cultures.54

Even in cases

of the Sino-Burmese marriage where colonial administrators admitted their ignorance

of what actually constituted Chinese customary rules and practices—unlike in the

case of the Indo-Burmese marriage where judges claimed mastery over the relevant

personal laws, i.e., Hindu, Muslim and Burmese Buddhist—the courts insisted on

imposing and codifying an essentialist understanding of Chinese customary law.55

The litigants, too, found that the most effective legal strategy for winning the contest

over who has the authority to govern the family and its fortunes was to invoke cultural

difference, consigning the involved parties to choose one religious, racial and/or

cultural identity over others. Colonizer and colonized unevenly coauthored a fiction

of discrete ―Burmese,‖ ―Indian,‖ and ―Chinese‖ communities that belied the sustained

transcultural engagements and interactions that cut across the allegedly hard and fast

boundaries that separated them.

At the same time, we must not place undue emphasis on the efficacy of law as

a technology of colonial governance. In Burma, as elsewhere, law played an

undeniably important role in the imperial project of managing difference.56

Yet its

influence on social distinctions and relations between and among different colonial

subjects was at best limited. Even when they availed themselves of the services of the

colonial courts—and it is clear that those who did were in the minority—it is doubtful

that their selves, subjectivities and lives were fundamentally remolded or refashioned

through legal representation. The impact of colonial judicial rulings on the lives of

the colonial subjects can also be gleamed from the way Burmese men and women

responded to the verdicts. A letter to the editor by a woman named Nyi Nyi in a 1938

issue of Ngan Hta Lawka, for example, expressed the author‘s disapproval of a


decision made by a judicial commissioner of Lower Burma. The commissioner had

handed down a sentence of fifteen days of ―rigorous imprisonment‖ to a husband who

struck his wife on the head with an ironwood club, cutting open her scalp. The

woman‘s offense was that she had failed to have food ready for her husband upon his

return home. Responding to the magistrate‘s remark that ―the chastisement of wives

should be effected by means of a small cane or bamboo, but in the present instance

the accused has transgressed the ordinary system of chastisement,‖ Nyi Nyi stated:

―In my opinion husbands have no right whatever to chastise their wives, even with

small canes or bamboos, and the magistrate must be careful to disabuse his own mind

of this most erroneous notion of a husband‘s privileges.‖57

She thus challenged the

judicial decision that, characteristically, took patriarchal dominance as the normative

family model and legitimized the patriarch‘s right and responsibility to put his house

and women in order.

In addition, through the protracted and intricate process of argumentation and

adjudication, litigants and judicial authorities alike were compelled to acknowledge

that the notion that an individual or a family unit necessarily had only one religious,

racial, or cultural identity was patently false. Whereas Anglo-Indian métissage raised

the question of whether and which local companions and mixed-race children of

British men should be given the benefits of European membership, intra-Asian

relations posed little threat to the racial and gender hierarchies central to the alleged

civilizational hierarchy of ―English‖ and native races and cultures. When it came to

the latter form of colonial domesticity, judicial officials were not reluctant to

entertain, in the words of Benedict Anderson, ―multiple, politically ‗transvestite,‘

blurred, or changing identifications‖58

even while nominally employing bounded,

determinate and exclusive classifications.

For correspondence: [email protected]. The research for this article was funded

by grants from the National University of Singapore. I gratefully acknowledge the

many insightful comments I received from various scholars at the first conference of

the Family & Colonialism Research Network, where I presented an early version of

this article. I wish to thank Esmé Cleall, Laura Ishiguro and Emily Manktelow, the

organizers of the conference, for their enthusiasm and support for my article. I wish to

also thank D. Christian Lammerts and the anonymous referee of the Journal of

Colonialism and Colonial History for their helpful suggestions and constructive


criticisms. Last but not least, this article has benefitted immensely from discussions

with Tamara Loos. All errors and omissions are my own.

Notes

In citing works in the notes, short titles have generally been used. Works frequently

cited have been identified by the following abbreviations:

Census 1921 Government of India, Census of India, 1921, Vol. 10,

Burma (Rangoon: Office of the Superintendent,

Government Printing and Stationery, 1923)

Census 1931, Report Government of India, Census of India, 1931: Part One,

Report, Vol. 11, Burma (Rangoon: Office of the

Superintendent, Government Printing and Stationery,

1933)

ILR Ran Indian Law Reports, Rangoon Series

LBR Lower Burma Rulings

UBR Upper Burma Rulings

1 U Pu Galay, Ka brā: prassanā (The half-caste problem) (Yangon: Kyi pwa yay,

1939). The word ―kabya,‖ in its most basic meaning, refers to people of mixed

ancestry. The etymology of the word, however, is uncertain.

2 Chie Ikeya, Refiguring Women, Colonialism, and Modernity in Burma (Honolulu:

University of Hawai‗i Press, 2011), 118–42.

3 Riot Inquiry Committee, Interim Report of the Riot Inquiry Committee (Rangoon:

Office of the Superintendent, Government Printing and Stationery), 1939, 28.

4 Ann L. Stoler, ―Making Empire Respectable: The politics of race and sexual

morality in 20th-century colonial cultures,‖ American Ethnologist 16/4 (November

1989): 634–60; Ann L. Stoler, ―Rethinking Colonial Categories: European

communities and the boundaries of rule,‖ Comparative Studies in Society and History

31/1 (January 1989): 134–61.

5 For a selective sample of this vast literature, see Julia Clancy-Smith and Frances

Gouda, eds., Domesticating the Empire: Race, gender, and family life in French and

Dutch colonialism (Charlottesville: University of Virginia Press, 1998); Adele Perry,


On the Edge of Empire: Gender, race, and the making of British Columbia, 1849–

1871 (Toronto: University of Toronto Press, 2001); Philippa Levine, Prostitution,

Race and Politics: Policing venereal disease in the British Empire (New York and

London: Routledge, 2003); Durba Ghosh, Sex and the Family in Colonial India: The

making of empire (Cambridge: Cambridge University Press, 2005); Ann L. Stoler,

ed., Haunted by Empire: Geographies of intimacy in North American history

(Durham: Duke University Press, 2006); and the two volumes co-edited by Tony

Ballantyne and Antoinette Burton, Bodies in Contact: Rethinking colonial encounters

in world history (Durham: Duke University Press, 2006) and Moving Subjects:

Gender, mobility, and intimacy in an age of global empire (Urbana: University of

Illinois Press, 2009).

6 Tamara Loos, ―Transnational Histories of Sexualities in Asia,‖ American Historical

Review 114/5 (December 2009): 1314.

7 Census 1931, Report, 230–32; John C. Koop, The Eurasian Population in Burma

(New Haven: Yale University, Southeast Asia Studies, 1960), 22.

8 Sally E. Merry, Colonizing Hawai„i: The Cultural Power of Law (Princeton:

Princeton University Press, 2000), 9.

9 See Indrani Chatterjee, Gender, Slavery and Law in Colonial India (New Delhi:

Oxford University Press, 1999); Lauren Benton, ―Colonial Law and Cultural

Difference: Jurisdictional politics and the formation of the colonial state,‖

Comparative Studies in Society and History 41/3 (July 1999): 563–88; Rachel

Sturman, ―Property and Attachments: Defining autonomy and the claims of family in

nineteenth-century western India,‖ Comparative Studies in Society and History 47/3

(July 2005): 611–37; Ghosh, Sex and the Family; Chandra Mallampalli, Race,

Religion, and Law in Colonial India: Trials of an interracial family (Cambridge:

Cambridge University Press, 2011); and Nandini Chatterjee, ―Muslim or Christian?

Family quarrels and religious diagnosis in a colonial court,‖ American Historical

Review 117/4 (October 2012): 1101–22.

10 On legal pluralism in colonial empires, see Lauren Benton, Law and Colonial

Cultures: Legal regimes in world history, 1400–1900 (Cambridge: Cambride

University Press, 2004), 7–12.

11 In Burma as elsewhere, the implementation of colonial law was not straightforward,

as the Indian Civil Service officer and scholar John S. Furnivall (1878–1960) has


shown in Colonial Policy and Practice: A comparative study of Burma and

Netherlands India (New York: New York University Press, 1956). In fact, a separate

judicial service—in addition to the position of judicial commissioner and a formal

Chief Court—was not established in British Burma until 1905–6. Yet Furnivall also

points out that by the 1890s, the practice of referring disputes for arbitration to the

local headman had declined significantly and decisions by a local headman, even

when ratified by a Burmese judge, were set aside by the judicial commissioner as

contrary to Burmese law, signifying the displacement of ―Burmese custom‖ by ―the

rule of law‖ (ibid., 29–33, 62–64, 71–77, 131–37).

12 Bernard S. Cohn, ―Law and the Colonial State in India,‖ in Colonialism and Its

Forms of Knowledge: The British in India (Princeton: Princeton University Pres,

1996), 57–75.

13 This process of codifying Burmese Buddhist law was characterized by the same

tension that marked the process of codification in India: between emphasis on textual

tradition—premised on the notion that personal law could be understood by select

indigenous legal texts—versus ―customary practice‖—based on the observation that

actual social practices diverged from the dictates of those texts and exhibited

important regional and local variations. By the time of Burma‘s annexation, the

British had recognized, in theory, that custom should be treated as the most legitimate

source of law. Nevertheless, colonial authorities proceeded to identify the indigenous

dhammasat texts as the foundational sources of law in Burma. For an example of this

process of codification of Burmese Buddhist law, see U Gaung, Translation of “A

Digest of the Burmese Buddhist Law Concerning Inheritance and Marriage; Being a

Collection of Texts from Thirty-Six Dhammathats” (Rangoon: Office of the

Superintendent, Government Printing and Stationery, 1909) and John Jardine, trans.,

King Wagaru‟s Manu Dhammasattham: Text, translation and notes (Rangoon: Office

of the Superintendent, Government Printing and Stationery, 1934).

14 The term zerbadee entered the census in British Burma for the first time in 1891

when only 24 zerbadee were recorded (Census 1931, Report, 230–31).

15 Sheldon Pollock, The Language of the Gods in the World of Men: Sanskrit, culture,

and power in premodern India (Los Angeles: University of California Press, 2009),

528, 533.


16

The word kala can also mean ―foreigners,‖ including the British and more generally

―Europeans.‖ But in the twentieth century, the word began to refer almost exclusively

to ―Indians,‖ and the word bo appeared instead as the common word used to denote

―European.‖

17 In 1931, approximately 72 percent of kala and 66 percent of tayoke were male. Of

the immigrant population from India, which constituted roughly eighty percent of the

total immigrant population in Burma, females represented only 18 and 16 percent in

1921 and 1931, respectively. Females accounted for 21 percent of the total immigrant

population from China and 32 percent of the total European immigrant population

(Census 1921, 90–91; Census 1931, Report, 60–63).

18 In Re Ma Yin Mya and one v. Tan Yauk Pu and two (1927) 5 ILR Ran, 406, 419.

19 Census 1931, Report, 211.

20 For a discussion of the use of marriage as a mechanism for acculturation and for the

cultivation of (political) allegiance in precolonial Burma, see Ikeya, Refiguring

Women.

21 Cited in Nalini R. Chakravarti, The Indian Minority in Burma: The rise and decline

of an immigrant community, with a foreword by Hugh Tinker (London: Oxford

University Press, 1971), 125.

22 Maung Man v. Doramo (1906) 3 LBR, 244, 244–45.

23 Ibid., 245.

24 Maung Kyi and others v. Ma Shwe Baw (1929) 7 ILR Ran, 777, 778, 781.

25 Ibid., 782.

26 Phan Tiyok v Lim Kyin Kauk (1930) 8 ILR Ran, 57; Tan Ma Shwe Zin v. Tan Ma

Ngwe Zin and others (1932) 10 ILR Ran, 97; Ma Sein Byu and another v. Khoo Soon

Thye and others (1933) 11 ILR Ran, 310.

27 Queen-Empress v. Nga Pale (1892), Printed Judgments, Lower Burma, 1893–1900,

608.

28 Ibid.

29 See, for example, Ma Saing vs. Kader Moideen (1901) in Aviet Agabeg, ed., Burma

Law Reports, vol. 8, pt. 1 (1902), 16–18; Kumal Sheriff v. Mi Shwe Ywet (1875),

Selected Judgments, Lower Burma, 1872–1892, 49–51; Ali Asghar v Mi Kra Hla U

(1916) 8 LBR, 461.


30

Maung Po Maung and One v. Ma Pyit Ya (alias) Ma Thein Tin (1927) 1 ILR Ran,

160, 168–69.

31 See, for example, WR Vanoogopaul v. R Kristnasawmy Muduliar alias Maung

Maung (1905) 3 LBR, 25.

32 S. Anamalay Pillay v. Po La (1906) 3 LBR, 228, 229.

33 Tan Chee Beng, The Baba of Melaka: Culture and identity of a Chinese Peranakan

community in Malaysia (Selangor Darul Ehsan: Pelanduk Publications, 1988).

34 Kumal Sheriff v. Mi Shwe Ywet (1875), Selected Judgments, Lower Burma, 1872–

1892, 49.

35 Gauri Viswanathan, Outside the Fold: Conversion, modernity and belief (Princeton:

Princeton University Press, 1998).

36 The judge in this case had followed a precedent set in 1895 in another case

concerning a zerbadee family. See Ahmed and another v. Ma Pwa (1895) UBR, 529,

cited in Chan-Toon, Leading Cases on Buddhist Law (Rangoon: Hanthawaddy Press,

1899), 382–88.

37 Ma Le and Ma Me v. Maung Hlaing and Ma Mi (1905) 2 UBR, 1, 1–2.

38 Ibid., 3–5.

39 Ibid., 1.

40 Ibid., 6.

41 Ma Yait v Maung Chit Maung, and Maung Chit Maung v Ma Yait and Another

(1921) 11 LBR, 155.

42 Ibid., 158.

43 Chit Maung v Ma Yait and Ma Noo (1913) 7 LBR, 362, 363.

44 Ma Yait v Maung Chit Maung, and Maung Chit Maung v Ma Yait and Another,

158.

45 Ibid., 157–59,162.

46 Phan Tiyok v Lim Kyin Kauk, 60–61.

47 Ibid., 64.

48 Phan Tiyok v Lim Kyin Kauk, 117.

49 Lynn Pan, Sons of the Yellow Emperor: A history of the Chinese diaspora (New

York: Kodansha America, 1994); Philip A. Kuhn, Chinese Among Others:

Emigration in modern times (Lanham, Maryland: Rowman & Littlefield, 2008); John

Clammer, Straits Chinese Society (Singapore: Singapore University Press, 1980) and


Diaspora and Identity: The sociology of culture in Southeast Asia (Selangor Darul

Ehsan, Malaysia: Pelanduk, 2002); Anthony Reid, ed., Sojourners and Settlers:

Histories of Southeast Asia and the Chinese (St. Leonards, NSW: Allen & Unwin,

1996); Wang Gungwu, China and the Chinese Overseas (Singapore: Times Academic

Press, 1991); Tan, Baba of Melaka.

50 Stoler, ―Making Empire Respectable,‖ 636–37.

51 Pan, Sons of the Yellow Emperor, 157.

52 Ghosh, Sex and the Family, 132.

53 Kyin Wet v Ma Gyok (1918), 9 LBR, 179, 76, referenced in Phan Tiyok v Lim Kyin

Kauk.

54 Cohn, ―Law and the Colonial State in India‖; Nicholas Dirks, Castes of Mind:

Colonialism and the making of modern India (Princeton: Princeton University Press,

2001); Ghosh, Sex and the Family, 170-205.

55 For the protracted jurisprudential debate on the proper adjudication of Sino-

Burmese marriages and what constituted Chinese customary law, see Hong Ku and

Hock Kung v. Ma Thin (1881) Selected Judgments, Lower Burma, 1872–1892, 135–

45; In Re Ma Yin Mya and one v. Tan Yauk Pu and two; Phan Tiyok v Lim Kyin Kauk;

Tan Ma Shwe Zin v. Tan Ma Ngwe Zin and others; and Hla Aung, ―Sino-Burmese

Marriages and Conflict of Laws,‖ The Burma Law Institute Journal 1/1 (Autumn

1958): 25–55.

56 For a comparative history of the central role that legal orders and notions of

difference played in global imperial formations between 1400 and 1900, see Benton,

Law and Colonial Cultures.

57 Nyi Nyi, ―Correspondence,‖ Ngan hta lawka (The world of books) 24/158 (March

1938): 56.

58 Benedict Anderson, Imagined Communities: Reflections on the origin and spread

of nationalism, rev. ed. (London: Verso 1991), 166.