“Under the general law and the Kandyan Law, minimum age of marriage is now 18 years for both males and females. However, under the Muslim law, there is no minimum age although the registration of a marriage of a girl under 12 years of age is prohibited unless authorized by the Quazi. Although there are very few recorded instances of children under the age of twelve being married under the Muslim laws, the anomaly could have far reaching impact on the lives of Muslim girls.”
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by Ramani Muttettuwegama
1. INTRODUCTION
(June 15, Colombo, Sri Lanka Guardian ) Several years ago I asked a woman who wished to have legal advise whether she thought the discrimination she faced was because she was a woman or because she was a Muslim and her immediate response was "but I am both". To separate one's identity is impossible. This is the general dilemma posed by family laws to Sri Lankan women. While they discriminate against women in several ways and also differentiate between classes of women depending on the community they belong to, the laws are supposedly a codification of the customs of one's community. To agitate for reform from within is impossible: the leadership of the community is quite content with the laws. To agitate from reform from outside, in the context of an internal war whose roots are found in the non acceptance by the majority of a minority's language is equally impossible. Thus, the laws remain.
The paper argues that it is virtually impossible to address the issue of Gender Equality in terms of personal laws unless some attempt is also made to address the underlying fears and tensions of minority communities in Sri Lanka.
The paper provides a summary of the various personal laws that are applied in Sri Lanka placing women in context, both versus men of their own community and other women in the country. The paper also analyses other available legal protection for equality in Sri Lanka.
2. PERSONAL LAWS
What are Personal Laws?
In Sri Lanka, several legal systems govern the law of family relations. The General law (a combination of Roman Dutch and English law) is the main system applicable to every one except if they are governed by the personal laws. There are three other parallel systems of personal laws in Sri Lanka, i.e., Kandyan Law, The Thesavalamai and the Muslim Law. These laws are grounded in ancient customary practices and/or religion.
The important thing about personal laws is that they only apply to the 'private' sphere of family life. A person's rights flowing from marriage and parenthood as well as the right to own, dispose of and inherit property are covered by the personal laws. It is in this private sphere that many of the discriminations on the basis of gender which remain unacknowledged and invisible take place. This has created the tension in Sri Lanka between the rights of women in general and the rights of minorities. Given the context of a war whose roots belong to ethnic tensions, it is unlikely that we would see in the next few years any amendments to the Personal laws, which would result in positive change for women. This is because the concept of women's right to equality has been continuously subordinated in Sri Lanka to the major debate on minority rights.
In the Context of colonialism and thereafter
The origin of separate systems of personal laws as codified lies in the interest of the colonialists. Both the Dutch and British set up a system of public law, which was uniform as well as familiar to themselves. However, they were content to leave the various systems of personal laws, which did not impede or impact on the general system, intact as long as there was a system that could be identified and applied by the Courts when necessary. The reluctance to take on the massive task of drawing up a general system of law which would satisfy the traditional ideas of all the communities coupled with the various strategies employed by the colonialists in governing the country seems to have contributed to the decision to leave in place the various systems. The need to pacify minority communities also played a determining role in this decision.
However, in the process of codification, the variety of sources that the traditional legal systems relied upon seem to have been ignored, leaving behind a mass of laws which do not form a correct representation of the systems. Given that the sources of information on the "traditions" were almost exclusively upper class/caste males the resulting distortions are obvious. This process has led to many problems and gaps within the personal laws. Although subsequent legislation sought to rectify this, the effect of many of the problems which the gaps originally caused still remain unresolved.
For instance, in 1806, the British introduced the 'Code of Mohammedan law', which is an English translation of a Batavian Code, which was mainly a reflection of Shafie laws. Since its introduction, Muslim personal law was interpreted with reference to the Code. However, there are people from other sects who are also Muslims who reside in Sri Lanka. The current law makes references to the "laws that govern each sect" and leaves it to courts to trace its own sources on the applicable norms. The Islamization of Muslim Personal laws in Sri Lanka was as a result of reforms that were initiated during the British period but finalized post independence.
A similar scenario may be traced with respect, for instance, with the development of the Thesavalamai. It is considered to have emerged from a system of laws that were applicable to ancient Tamils, both in Sri Lanka and in India. Thus, originally, it was heavily matriarchal in its basis. This changed over a period of time. The first attempt at codification was by the Dutch in 1707 that resulted in the collection of the laws and customs by Claasz Isaacsz being made into the "Thesavalamai Code". During the British period, the Code was modified upon several instances. Finally, now, the Code is only of persuasive value with the enforceable areas of law being contained in several legislative enactments. The Matrimonial Rights and Inheritance Ordinance (Jaffna) 1911 first amended the system of intestate succession to change the order of some collaterals vs. some ascendants. The rights of married women were amended in 1947 to correct a mistake in the 1911 version of the Act.
In terms of the transition from a colonial to post colonial state, the legal rights of women in terms of personal laws did not change much. The members of the legislature followed the policies of the old colonial rulers in not wishing to make drastic changes to personal laws that were not authorized by the members of each community that were governed by these laws. Thus, although both the Constitution of 1972 and 1978 recognize the right to equality and the 1978 Constitution goes even further and recognizes the right to non discrimination, the discriminatory impact of each personal law on women within each community has never been addressed.
Upto date no challenge has been raised in the Court with respect to the tension between the right to equality and the right to freedom of culture and religion.
Contents of personal laws
Summary
The personal laws not only set up parallel legal standards, applicable to women depending on the community they (or their husband) belongs to, they also set up parallel adjudicating mechanisms. For instance, General, Kandyan and Muslim marriages are registered by three different types of registrars. Further, disputes relating marriage are also resolved by different authorities. In terms of Muslim personal law, almost every aspect of it is first adjudicated by the Quazi and it is only an appeal that lies to the common Court of Appeal. In terms of the Kandyan law, marriages are registered and dissolved by special registrars. Under the general law, registration is by specially appointed registrars and the dissolution is adjudicated by the District Court. For Kandyan, Thesavalamai and General law intestate succession is adjudicated by the District Courts. The Thesavalamai is not applicable to the area of marriage registration etc. and persons governed by the Thesavalamai for interstate succession are governed by the general law for all aspects of marriage except the control of property by women. I have outlined, some areas that may be of interest and not generally known or understood about the personal laws and their impact in Sri Lanka.
Kandyan
The Kandyan law cites as its source the laws and customs of the Kandyan Kingdom (the last area of Sri Lanka to be colonised) and is applicable to all Kandyan Sinhalese. A "Kandyan Sinhalese" is one whose parents can trace their lineage to being residents of the Kandyan Provinces during the Kandyan Kingdom and include those who currently do not reside in "Kandyan areas". Thus not all people domiciled within the Kandyan provinces fall within the definition of a "Kandyan Sinhalese".
The areas of Kandyan law that are currently retained in Sri Lanka relate to marriage and divorce and intestate succession. All Kandyans have the option of choosing whether they marry under the Marriage and Divorce (Kandyan) Act [M &D (K)A] and, thus be governed by the Kandyan laws or the General Marriages Ordinance in which case, they would be governed by the Roman Dutch law. In the case of intestate succession, a Kandyan person is governed by the Kandyan Law by virtue of the Kandyan Law Ordinance (KL) as well as the Matrimonial Rights and Inheritance Ordinance. Some areas of the Kandyan laws on adoption are also applicable here. In all other areas such as maintenance and custody the general law applies.
Thesavalamai
The Thesavalamai is part of some ancient customs of Tamils in Sri Lanka and India. In Sri Lanka the law is applicable to the " Malabar inhabitants of the Jaffna Peninsular" and the persons governed by the law include those who do not reside in Jaffna any longer. The only areas of the Thesavalamai personal laws that are now applicable are matrimonial rights with respect to property and intestate succession. These are governed by the Matrimonial Rights and Inheritance (Jaffna) Ordinance [MR &I (J)O]. In all other areas, the general law applies.
Muslim
The Muslim special laws are applicable to people who follow Islam. In all areas of family the Muslim law applies and, unlike with Kandyans, in the event of marriages between Muslims, they do not have the option of marrying under the General law at all. Marriage, divorce and all other related areas are governed by the Marriage and Divorce (Muslim) Act [M&D(M)A] No. 13 of 1951 and the subsequent amendments. The act states that the law is applicable to marriages and divorces and other matters connected herewith, of Muslim inhabitants of Sri Lanka. This Act covers a range of areas and clarifies the situation of women belonging to the Shafi sect. The Act also goes on to state that the status and rights and obligations of the parties shall be determined according to the Muslim law governing the sect to which the parties belong and that non/registration of marriage alone will not in/validate a marriage or divorce which would otherwise have been valid/invalid according to the law of the sect.
The areas of intestate succession and donations are dealt with by the Muslim Intestate Succession Ordinance No.10 of 1931 (MISO) that is applicable to the intestacy of and donations made by Muslims either domiciled or owning immovable property in Sri Lanka. The Act merely states that the law applicable will be that of the relevant sect and it is necessary to examine the Muslim law itself in order to ascertain its contents.
It is important to note that both Acts make provisions for the laws governing each sect that the person in question belongs to prevail, notwithstanding anything to contrary in the Act itself.
General Law
The term "General" is misleading because it is more a catchall law. Every area of family laws is covered by some aspect of general law.
The area of marriage including the age of marriage, the procedure for a marriage, the registration of marriage and its dissolution either by divorce or through a judicial separation is governed by the Civil Procedure Code (CPC) and the General Marriage Ordinance (GMO). The GMO is applicable to all marriages except those between Muslims. It also contains express provisions regarding the recognition of traditional forms of marriage as being valid.
The law on the matrimonial rights of married persons with regard to property and intestate succession is contained in the Matrimonial Rights and Inheritance Ordinance (MR & IO) read together with the Married Women's Property Act (MWPA). These acts are not applicable to Kandyans, Muslims or people governed by the Thesavalamai.
The law on adoption is contained in the Adoption Act as amended. On the face of it, the Act is applicable to all communities. In terms of intestate succession, however, its applicability differs according to the community.
The general law on maintenance is contained in the Maintenance Ordinance. This Ordinance has been amended recently to shift away from the old concept of indigence and need to a general right of persons to maintenance. However, since the 1951 Marriage and Divorce (Muslim) Act, the Maintenance Ordinance is not applicable to people who marry under it.
Further, the Wills Ordinance which lays down the law regarding wills is applicable to any one and there are no prohibitions on the types of bequests that may be made by a will in Sri Lanka.
Minimum age of marriage
Under the general law and the Kandyan Law, minimum age of marriage is now 18 years for both males and females. However, under the Muslim law, there is no minimum age although the registration of a marriage of a girl under 12 years of age is prohibited unless authorized by the Quazi. Although there are very few recorded instances of children under the age of twelve being married under the Muslim laws, the anomaly could have far reaching impact on the lives of Muslim girls.
Under the Penal Code of Sri Lanka, until 1995, the general age of consent for sexual relations was twelve years. In 1995, the Penal Code was amended and the age of statutory rape was raised to 16 years UNLESS the person happens to be the perpetrator's wife and they are not judicially separated (Section 163(e), Penal Code as amended ). Thus, unlike in the period before 1995, when although the age of consent was very low, it was uniformly applicable to every one (although even during this period Muslim girls could be married under the age of consent), now Muslims who are married are specifically not covered by the Code.
Rights of married women
Under almost all the legal systems, the concept of separation of property forms a strong basis in terms of rights of married women. They own their own property. Dowry that is given by the family is also usually given in the woman's name. Under the Matrimonial Rights and Inheritance (Jaffna) Ordinance however, women married under the Thesavalamai can not dispose of their property without the written consent of their husband except by Will. This is not the case for other women in Sri Lanka.
Divorce
Under the General law, divorce is based on the concept of "fault" rather than on the irretrievable breakdown of marriage. The grounds, however, are the same for both parties.
Under the Kandyan law, while the grounds are the same for both parties in most circumstances, a wife seeking a divorce from her husband on the basis of adultery must also establish an additional ground of incest or gross cruelty. However, a divorce on mutual consent is available under the Kandyan law. Further, unlike the General law, a divorce is granted by the Registrar of Marriages under the Kandyan law, thereby making dissolution of marriage a much simpler procedure.
Under the Muslim law, a man seeking a divorce does not need to specify a ground for divorce whereas women must establish either ill treatment or an act/omission which amounts to a 'fault'. As far as procedure is concerned, however, either procedure is much simpler than the more cumbersome two-part procedure under the General law.
Status
Women marrying outside their community or race are governed by the personal law of their husbands while men in the same position are still governed by their own personal laws. Under the Married Women's Property Ordinance and also Matrimonial Rights and Inheritance Ordinance, a woman marrying a man of different race takes on his race until she remarries. The rule regarding the status of a Kandyan woman marrying in Binna is not made clear here. A woman marrying under the Thesavalamai is only subject to this rule during the subsistence of the marriage.
The result of this is that women who marry outside their community lose their customary rights of inheritance. Any Muslim who does not marry under the Muslim Marriage Act (and possibly their children) loses the right to inheritance under Muslim Intestate Succession Ordinance thereby further restricting the women's choices regarding self and communal identity.
3. MEASURES THAT ENSURE EQUALITY
The main step (other than the Constitution) was the adoption of the Women's Charter in 1991. The Charter is based on CEDAW. It sets in place a National Committee on Women empowered to monitor the application of the Charter and the status of women in general. The National Committee also has the main responsibility of disseminating the contents of the Charter to the public and does so through a series of meetings, especially with policy makers. The Charter, it should be noted is more a statement of public policy than law in itself.
Secondly, a National Human Rights Commission was appointed in 1996 with powers to hear complaints on the basis of the Fundamental Rights Chapter of the Constitution. This Commission acts as a reconciliation body between aggrieved parties and state institutions. Once again, complaints based on the ground of "sex" have been very rare.
Further to the Women's Charter, many changes were made to legislation and to state policy and regulations with respect to women. This included a uniform age of marriage for men and women under the General Marriages Ordinance and the Marriage and Divorce (Kandyan) Act (although no change was made to the Marriage and Divorce (Muslim) Act. Further, changes were made to the regulations governing maternity leave for employees of the government (although no changes have been made to the regulations for private sector employees). Recently, the regulations relating to granting of foreign spouses were amended to have a uniform impact on men and women.
A recent attempt (in 1999) to introduce legislation on Equal Opportunities failed miserably. This legislation, which was originally a civil society initiative, was met with much opposition from the majority community. The concerns included the impossibility of the monitoring requirements and the stretching of the impact of the Act to include the private sector. This has always been an area of concern in Sri Lanka - the applicability of the equality doctrine in private employment.
The main body empowered with reviewing and monitoring the situation of women in Sri Lanka is the National Committee on Women. The periodic reports to CEDAW help act as a series of checks on the monitoring system. Further, for several years now, Sri Lanka has a cabinet level Ministry of Women's Affairs, which is expected to co-ordinate legislation on women's rights. It must be noted that successive governments have continued to appoint some of the weaker members of parliament to this post. Further both the Ministry and that National Committee are often strapped for money from the State.
4. ROLE OF NGOS /CIVIL SOCIETY
The role of civil society has been both controversial (as in the case of the Equal Opportunities Bill) and complimentary to state action (as in the drafting of the Women's Charter for instance). Its role has always been multi faceted and includes dynamic intervention at the policy making and legislative level (women's groups have been extremely successful, when they wanted to be in lobbying parliamentarians for instance).
Further, the government reports to CEDAW have been the product of much discussion with women's groups. Women's groups have also been involved in the preparation of shadow reports to CEDAW for some time. The same is however, not true of reports to CERD. There, the Government submits its report with no reference to civil society groups. Further, civil society is also not actively involved in monitoring Sri Lanka's reports.
This is unfortunate since in the development of the concept of equality, especially in the context of personal laws, equal attention must be paid to rights of women and the protection of minorities. It has been the frequent experience of civil society groups that the interests of the groups working on minority rights and women's rights rarely coincide. When the do coincide, they are often in opposition to each other. This is an unfortunate trend that must be addressed if the tedious issue of reformulating personal laws so as to eliminate discrimination on the basis of "sex" while continuing to pay attention to the rights of all minorities to protect their culture and identity.
5. CONCLUSION
The main argument of the paper is that the systems of parallel personal laws is in direct contravention of the right to equality and has a stifling effect on cultural evolution. While it is conceded that the State has the right to regulate the types of marriage it will recognise (minimum age of parties, a system of registration where applicable, a definite system for dissolution etc.) it is the writer's opinion that the codification of cultural practices relating to is excessive.
For instance, if one were to get away from the equality debate for a moment and take a look at the concept of personal laws as a codification of traditional practices, one would immediately recognise the danger of the act of codification. Codification is an attempt at fixing for all times a particular rule. Culture and tradition on the other hand is constantly changing- In bits and pieces; And gradually. But it surely changes and adapts to new situations.
In the era when the average life expectancy was around thirty to forty years of age, a person of twenty would be beyond middle age. In those circumstances, a minimum age of marriage being, say, twelve, would not have been unacceptable. However, in today's context, where the average life expectancy veers between 65 and 85 in most parts of the world, a person of twelve years of age is still a child and, thus not ready for marriage. In Sri Lanka the average age of marriage for women by 1993 was 27 years. However, the minimum age of marriage under most laws, for girls, was twelve years until 1995 when the age was raised to eighteen years. The law then changed a customary minimum age, over night while tradition had changed it gradually over a long period of time. The danger of codifying tradition and custom is that one makes it static, with no room to adapt and be the dynamic force it is meant to be.
The other part of the paper argues that both the women's rights movement and the minority rights movements have failed to adequately address the issue of personal laws due to their inability to see the intersection of identities that personal laws represent. As in other parts of the world, women from minority 's communities are often reluctant to join the mainstream women's movement in agitating for changes because they do not trust the main stream to understand their fears of being members of a minority. At the same time, women are marginalized within minority rights groups due to these groups insistence on the adherence to ancient cultural practices regardless of their impact on the women of their community.
Any attempts at reform of personal laws must, in conclusion, take into account both sets of issues. Thus, a wider debate must be had on the reasons for a variety of personal laws so as to ensure that the existing laws actually serve their purpose. Finally, given Sri Lanka's a long "tradition" of recognising the concept of equality and all personal laws must be examined within themselves so as to ensure gender parity within them.
(The article was an originally published by the “Line” magazine on 2001)
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