கவனிக்க: இந்த மின்னூலைத் தனிப்பட்ட வாசிப்பு, உசாத்துணைத் தேவைகளுக்கு மட்டுமே பயன்படுத்தலாம். வேறு பயன்பாடுகளுக்கு ஆசிரியரின்/பதிப்புரிமையாளரின் அனுமதி பெறப்பட வேண்டும்.
இது கூகிள் எழுத்துணரியால் தானியக்கமாக உருவாக்கப்பட்ட கோப்பு. இந்த மின்னூல் மெய்ப்புப் பார்க்கப்படவில்லை.
இந்தப் படைப்பின் நூலகப் பக்கத்தினை பார்வையிட பின்வரும் இணைப்புக்குச் செல்லவும்: Voice of women 1998.09
A Sri Lankan Journ
A SEPTEMBER 1998 A VOL. 5 AY ISSU
all for Women's Liberation
E 2 2 (SSN1319.9996 *, B: 20
C O N T E N T S
Equality Before the Law
Mala (Short story)
Women Violence and the Law
Muslim Lawin Sri Lanka
House With Many Doors
Sexual Harrasment Guidelines
Asian NGO's Statement on the International Criminal Court
Cover : Anuruddhika Wickramaratna
Illustrations : Janaki Samanthi
Printer: Hitech Prints
Sponsored By SIDA
September, 1998 Vol 5, Issue 2
Voice of Women 21/25 Polhengoda Gardens Colombo 05 Tel: 074 407 879
This issue Woman a of major sprang inte ests. It ha into a pro
Man made while she t is called h violence, t The law ha dowery sy the right to running a l
The story Flavia Agn the moral f alone".
She propos legislation concerned legislation terests. She whether a going in ap mand now judges and
the help of remanded highlights t Chetty rejc 29. 11.98 ol
The LavVS Fiот еvery The mothe MVh O fou nC Byan unc/ The innoce But failing, As decent
/n frenzy tf Upon thes M/as charg The suspe,
The victim And she pe Of Aunt t/ By a strang /f such occ
of the Voice of Women examines i Law to reveal the non recognition sues affecting woman, issues which existence by the gradual build up of patriarchal interclearly robbed her of her human rights and turned her that upholds patriarchy.
law protects, strengthens and keeps him in comfort ils, nurtures and spends her time in domestication which r natural work. She has to struggle against masculin attery, drunkenness rape, torture and marginalization; s not helped her in her devaluation and prohibited the tem. It has not recognised the demand for abortion,
her children, marital right to years of unpaid labour OSC.
f"Maintenance" granted by the law is described by es (in this issue p.2) who says "The onus of preserving bre of society, is of course to be shouldered by women
es that legislatures should have a separate section on for women. Special training should be imparted to the officials of the law ministry so that they could draft that does not interpret law prejudicially to women's in: adds "(In a rape case) the most important question is judgement delivered after 2-3 years with an option of peal, canever give justice to Women......should the debe for setting up special courts with more sensitive a strict time limit set for the trial of all sexual offences?"
in this issue is a pathetic story of a woman who sought the law to protect her child from sexual abuse and was or throwing hot water on the would be rapist. This he turns and twists of the law, to which Mervyn Casie ins in a poem published in the Sunday Times dated
a case 'Sexual Abuse' p. 29
flaw in the Law
in aSS, there is no doubt, roof-top set us shout of age seven child her Child had been defiled | Who fook in h/S van it to rape did plan, forced to ora/sexuman beings to vex
ewSOme Water hot (spect on the spot d and remanded to fail, f being enlarged on bail.
father is abroad force a hapless ward very suspects wife, quirk of crue/life. rS Mvithin the la VM, speed the ghastly flaw.
September, 1998 o Voice of Women o 1
The need to keep Women economi
cally dependent is closely linked to the conservative fear of women's sexuality and a corresponding hostille notion that an independent woman may go astray. This fear of women's sexuality continues to govern social norms.
Social conditions are created and nurtured to keep women perpetually in economic bondage in order to maintain the male control over their sexuality. It is within this framework of economic dependency that a need to pay maintenance to Women arises. The issue of maintenance is intricately linked to the denial of property rights and job opportunities to women.
The dual male need for sexual control and economic subordination makes marriage appear to be an ideal proposition for women. Women are conditioned to view marriage as the only option for sexual expression, emotional anchor and material needs like food and shelter. The extent a marriage can fulfil these aspirations depends on the will and whim of individual husbands.
To perpetuate the economic subordination of women within marriage, woman's role as a housewife is glorified giving a false sense of security to married women. Neither the law nor society recognises the role of women as home makers in monetary terms. The Indian law on the marriage breaking down recognises only the husband's title to the house despite the fact that a woman has looked after the home for several years and brought up the children with love and care. All the family income and assets become the exclusive property of the man. The non-recognition of women's contri
Flavia an em nist lawy Bombay in the obje demystifying procedures with the issu tenance. "TI ture has so the divorce la economic which a mari ises is a mor proposition. lying conce be that if a
WantOn en 0 for divorce should be br to opt for po
Some referen laws may not in Sri Lanka.
bution to the ma reduces woment tution.
A popular myth ety is that liberal will drive womer dom (read easy
corrode the mora (The onus of pre: fibre of society,
shouldered by W. from thetime Sche poor Adam into S
In order to preve of the moral fib
2 o Voice of Women O September, 1998
inent femier from pursuit of ctive of g laws and deals here Ie of mainhe legislastructured aws that the security riage prome attractive The under
bt seems to woman is ugh to opt then she ave enough verty".
ces to Indian be applicable
irriage and home o a state of desti
prevalent in sociised divorce laws to a life of freevirtue) and thus l fibre of society. serving the moral is of course to be omen alone, right 'ming Eve tempted in!).
ent this corrosion re of society, the
legislature has so structured the divorce laws that the economic Security which a marriage promises is a more attractive proposition. The underlying concept seems to be that if a woman is wanton enough to opt for divorce then she should be brave enough to opt for
An apt example is the right to the matrimonial home which is ensured by a marriage contract is terminated as soon as a woman is divorced. A woman also loses all rights to inherit her husband's property. It comes as no surprise that women opt for divorce only when all endeavours to reconcile the marriage fail.
The state being forced to recognise the poverty which is a consequence of desertion and divorce has statutorily provided a meagre dole to keep a woman's body and soul together. A duty is cast on husbands to maintain their wives by paying them this subsistence dole. While enacting this provision, the concern of the state has been towards prevention of social evils such as vagrancy and prostitution rather than any real concerns for the dignity of
The maintenance dole is kept at a minimum so that divorce does not become an attractive alternative and the institution of marriage is preserved and strengthened. Several judgments on maintenance actually state this ideology.
In regard to determining what is required by the wife to maintain herself, court has to steer clear
of two extremities, viz., it must not give maintenance which would keep her in luxury and would make judicial separation profitable and also impede any future reconciliation. It must also steer clear of the other extreme viz. penuriousness.
IM. Ponnambalam V. Saraswathi AIR 1957 Mad. 693
The alarming factor is that this right to meagre maintenance dole is not adequately by the courts. No one takes the orders passed seriously, not the courts, nor the husbands, nor the lawyers which results in the statutory provisions being violated more often than enforced.
Since the statues are based on erroneous presumption and are also full of loopholes. Even a vigilant lawyer or a committed agtivist cannot bring justice to women within the existing frame work. Women cannot get justice unless these laws are changed.
The issue of maintenance with its implications of economic subordination arises Several questions.
Firstly, whether the maintenance provided by the courts is adequate to maintain the women and their children.
Secondly, whether it is possible to enforce these rights within the existing legal system where the onus is on the woman to prove the husband's income. Further, the burden of enforcing the order is thrust on the
Practical experiences prove that the legal system is inadequate to meet the challenge of saving women and children from destitution.
At the third level. propogators of equality wonder why men should be
saddled with the ing the wives wh equal partners According to the ofwanting to hav ing it too.
And lastly, whe will perpetuate e nation of wome concept upon wh based clubs won the minors and th sons all of whom maintaining then
grading and in rea meagre dole pron ute, even if receiv too inadequate tol a life of dignity. most husbands women are forced tain themselves b dren.
Women carry on taining their fam low paid jobs in sector. Since
recognised as hea their earnings co low the subsiste have to choose
duty of maintaino are supposedly
in the marriage. m it is a clear case 2 the cake and eat
her maintenance conomic subordi. The prevailing ch maintenance is en with the aged. handicapped perare incapable of Iselves. This is de
subsistence level wage and the meagre maintenance dole because the law will not let them have both. Whatever she chooses, under the present economic, social and legal systems she is rendered destitute because neither alternative is adequate to meet the basic requirements of a woman-headed household. Sociological studies have confirmed the hypothesis that women-headed households
are the poorest of the poor.
ality not true. The hised by the statedregularly, is far help women to live In any event since do not pay, the not only to mainut also their chill
the task of mainilies by working the unorganised WOllell are 11Ot |ds of hoụselholds intinue to be bence level. They between a below
While divorce reduces women to poverty, conversely it improves the economic status of the husbands. The salaries which men are paid in the organised sector are based on the requirements of the entire family.
The man's earnings and dwelling house has a certain Sanctity under the law. Protecting the family against creditors is one of the basic premises of civil law. Certain percentage of Salary, dwelling house and provident fundare protected against outside creditors in order to protect the family.
September, 1998 O Voice of Women O 23
Unfortunately the same criteria is applied even when the creditor in question is the man's wife or his minor child. The protective mantle meant to safeguard the family is today used against the family itself. A man can throw the wife and children out and then claim protection from attachment and defeat the woman's and the children's claim for maintenance.
Any statute which intends to protect women's rights will have to take into consideration these social, historical and economic factors which contribute to women's destitution after divorce or desertion. To achieve a balance between men and women, certain Western countries have introduced the concept of community of property and assets and property are divided equally between the spouses upon divorce. A woman is also permitted the use of matrimonial home as long as the dependent children are in her custody.
The recent feminist legal theory has gone even beyond the concept of equal sharing of property. Martha Albertson Fineman in her book Illusion of Equality (University of Chicago Press, 1991) argues that the concept of community of property is based on a false presumption of equality between men and women. Since men and women are not equal either in society or within marriage, this presumptionalso contributes towards widening the gap between men and women.
When women are disadvantaged in the labour market and are simultaneously entrusted with the major role of domestic responsibility, result-equality should have been the object of matrimonial reform she stresses. Within this framework she advocates an instrumental rather than symbolic understanding of equality as the basis
for reform which restructuring Soc Rather than being or same the two g treated differently end up at the same fore advocates a women which is 1 than equality ba achieve equality.
As stressed here maintenance is lin trol and economic women. Theref woman is entitlec Remarriage or un the denial of mail a patriarchal syst sexual purity can to men. Even h maintenance to me sexual purity it w same social impli
If the weak anc need to be main minimum criter maintenance to be their restrain cal violence whic tion of their supe marriage. Sadly ers of power rela accommodatedw matrimonial sta eighteen year olc to claim maintena own father, an a privilege of clair from his wife.
called upon to n bands, judges, co. the modelofanid bands in her mast
Factors like age, h lack of skills als into account whi nance. The men their children nei forced so that wo this additional bu
4 O Voice of Women O September, 1998
will lead towards al relationships. treated as equal roups need to be so that they may level. She therelarger share for eed based rather sed in order to
the concept of Ked to sexualconsubordination of re only a chaste to maintenance. hastity results in tenance. Within m, the criteria of never be applied ypothetically if in is linked to their ould not have the cations.
l the powerless tained, then the ia for awarding husbands would from using physich is a manifestarior status within such complex laytionships are not ithinthe canons of tutes. While an boy has no right ince even from his dult male has the ning maintenance
while women are naintain their husntinue to propagate eal wife whose hus
ealth, illiteracy and need to be taken e deciding maintes duty to maintain 'd to be strictly enmen are not left with den which contrib
utes further towards their destitution. Today the challenge before the state is to make the rhetoric of equality into a concrete reality. Safeguarding women's economic rights is the first step towards this direction.
Right to Matrimonial Home and Property
The right of shelter to dwelling place is an important right and this right along with the right to maintenance is crucial to the woman's right of survival. As can be observed, the maintenance which is granted is merely sufficient to provide her with food necessary for keeping the body and soul together. It does not have a provision for the expenses necessary for procuring
This is because society does not consider women fit to live independently. They are either supposed to live in their father's house or in their husband's home. Hence women's basic right to shelter is not protected under the statute.
Judges treat the matrimonial home as the exclusive domain of the husband and hold that the wife has a right to reside there only with his permission. If the woman has already left the house most courts refuse to restore her right to enter the matrimonial home. If the woman is living in the martimonial home it is relatively easy to get a protection order restraining the husband from throwing her out or from assaulting her or causing any harm to her. Inspite of such injunction, the husband may continue to beat the woman but a case pending in court usually acts as a restraint.
A woman can initiate criminal proceedings against a violent husband. But the civil courts tend to be hostile towards a woman who has field a criminal case against her husband.
Prof. SAVITHR GOONESEKERA
In the past, the family support system within low income families encouraged wider parental Support for children born outside marriage. Women domestic servants were often young girls who entered residential employment after placing children with other relatives. Some caring unmarried mothers continue to leave their child in a receiving home for children managed by non-governmental organisations, even paying a modest sum for those residential facilities. Goonasekera & Abeyratne 1987; Wijetunge, 1991). The situation of low income families has changed over the years due to the economic pressures of survival and the enormous attraction of overseas employment as migrant workers. Child abandonment today is fostered by a legal system that does not help a woman to obtain financial support for a child and also dis
crimination against a non-marital child.
The present statute on family maintenance places legal responsibility for family support on a male bread winner and requires a woman to prosecute a man for financial support of his legitimate (marital) or illegitimate (non marital) children. Though summary proceedings in the Magistrates courts can be brought for this purpose and
some free lega
to low incom
city of Color
child support t
System is gent
task. If the ma
family, a won
alone as a sing if an unmarried to Support an child, the com dures for obtai tration, the nee tificate for adm and the negativ law and admin tions in regard are single pare child care resp pose burdens
Laws on illegi transformed c combined with ing on simplifie tion procedure: a strong case fo present povel programme toc child benefit or tem. The gove Parents Schem through the pro care departmer Sarana Schem ages private se sorship. Neve age is limited. the assumption ity for childrer or teenaged mc
aid is available
women in the ubo, obtaining rough the legal rally a difficult n abandons the an has to cope e parent. Even mother desires d look after a plicated procening birth regisd for such a cerission to school, e perceptions of istrative regulato women who ent shouldering onsibilities imon low income
timacy must be ompletely and awareness raisd birth registra. There is also r expanding the ty alleviation encompass a allowance sysnment's Foster e administered bation and child t or the Sevana
> 1 OW (CICOUtor child spontheless, coverThese support of responsibilborn to young thers. In some
legal systems, excluding the father of a non-marital child from parental status is considered as essential facet of protecting the interests of the mother and the child. Sri Lanka's legal system already recognises a man's minimal duty to provide financial Support even if it excludes a man from parental status. The UN Convention on the Right of the child and Sri Lanka's Charters have now put forward a standard of joint parental responsibility on the right of a child and this provides a value system for initiating creative legal reforms in this areas.
Eliminating the constraints on illegitimacy in the law can help to support and create new value system on the human dignity of a non-marital child and its mother. However unwanted pregnancies leading to abandonment and infanticide by young mothers can only be prevented by awareness raising on family responsibility, an expansion of birth control programmes, and review of the law on abortion. Sri Lanka's law on abortion is contained in the Penal code and is derived from nineteenth century English Common law. It is virtually impossible to obtain a legal medical termination of pregnancy, except on a very narrowly construed ground of
5 OVoice of Women O September, 1998
risk to the life of the mother. It is well known that private hospitals have developed various methods by which terminations can be obtained as part of medical treatment. Nevertheless a young mother's life is placed at risk through back Street abortions in unhygienic conditions. It has been recently reported that 20% of hospital beds in gynecological wards are occupied by women being treated for septic abortions. (Perera, 1993).
The concept of a legal 'age of discretion' at which parental authority diminishes is now recognised in the law. We have observed that it should be transformed to reflect a standard of gender equity and avoid discrimination between girls and boys. The transformedlegal value system must be widely publicised so that parents and family are encouraged to perceive that all children grow through stages of development from childhood into majority. The concept of a rational age of discretion will give a balance to the law on guardianship and the social perception of 'protecting' girls from their immaturity.
We have noted that girls have a right to receive equal opportunities for education. New compulsory education regulations under the Education Ordinance, can help to prevent parental decisions that undermine a girl's right to receive an education. We have observed that education policies have already undermined laws that recognise a low minimum age
of capacity to reform of exis this subject will in line with soci Sri Lankan fam education syste. this encourages
a teenager in m send her out to
her the right to
self. Sri Lanka c the decision m. girls. They do marriage broke and have emph portance of St Sions that make an essential ri marriage. A rei courtshas unde riage itself conf dent legal statu removes pare completely. Ye Sure can place the freedom o children, whil sures can be m come parents t child out of sc labour in dome rationalisation compulsory ec mum age fore
the age of disci with increasec ness of these l undermine the
parental and ac
of girls within
Family laws in itance and pro give a legal
resources irres A female spous
governed by th Sri Lan
September, 1998 o Voice of Women o 6
narry and that ing norms on only bring law ul reality. Most lies utilise the m for girls, and late marriages.
rents can give arriage or even work as a doWithout giving choose for herourts recognise aking rights of not recognise rage contracts asised the imatutory provia girl's consent 2quirement of cent case in the rlined that marers an indepenis on a girl that ntal authority it parental presconstraints on f middle class e similar preslade by low in) move a young nool in to child 'stic service. A of the age of lucation, minimployment and etion combined public awareegal norms can prospects for ult exploitation the family.
regard to inherperty generally ight to family lective of gender. and girl children e general law of &al obtain
the same right to share in family property with a male spouse or boy children. Girls also have legal rights in their own property subject to parental and court Supervision of transactions during minority. The parents guardianship powers are Subject to the courts power to intervene to protect the best interests of the child. This concept has to be used both in custody disputes and in management of property (Goonesekera 1987).
In recent years, specific problems have arisen in regard to middle class groups because of a transformation of traditional practices, and the emergence of new social customs prejudicial to women and girls. Dowry has been traditionally agift by parents of family to a daughter. Over the years it has become a gift by the bride's family to the bridegroom. Similarly parents who arrange marriages for their daughters are now insisting on formal solemnisation or registration of marriages and postponement of consummation till after the customary ceremony. The girl then is 'married' and cannot release herself from this relationship if either she or the other party wish to do so, withoutgoing through divorce procedures. A custom known as the virginity test to which a bride is subjected to after consummation of the marriage has been recorded in recent medical research. (Basnayake, 1989).
All these practices have a negative impact on girl children. Legislative intervention should
be combined with awareness raising to prevent practices such as dowry and the Virginity test as cruel and degrading Social practices causing physical and / or emotional trauma to women. Early Roman Dutch law principles are used to recognise civil actions for seduction, on the rationale that a girl has a legal right to claim damages for loss of Virginity and the diminution of marriage prospects. This law on seduction gives legitimacy for a practice like the virginity test. We see that it also influences judicial attitudes in rape cases where the violence is perceived only in terms of compensation to the girl for loss of virginity.
Under the present law divorce can only be obtained in the General law of Sri Lanka by proof of fault grounds in an adversarial or contested divorce action in court. Reform of the divorce law so as to recognise the traditional Sinhala law concept of divorce by mutual consent and for irretrievable breakdown of the marriage will facilitate release from marriage in a situation where a marriage has been registered without consummation, under parental pressure, and both the parents and the girl or the girl herself wish to obtain release from the commitments made on paper. The breakdown concept will also help to release a girl from a marriage in a situation where she would not be able to obtain a divorce on the accepted fault grounds, but the marriage has broken down irretrievably for one rea
son or another. [Goonesekera 1990).
Adoption p present focus ensure that ad child's best in failure of the c tion authoritie cal adoptions prior to and aft court order e. child abuse. G are sought by c as potential ca un satisfactor rangement exp lence and abus tored in the Ga 1991 / 92 and paper indicates of the judge to information pri order, combine to follow due monitoring resi ment that expo grave physical observe that, situation of within the fam weakness of regulatory cont system as well ment.
The new intern tional standards supports the child abuse ar undermine a c Survival and de his / her right t making decisio) / her life. Thi particularly va
girl children w of exploitationi
ocedures at of the need to ption is in the rests. Yet the burt and probato monitor lodequately both r obtaining the poses the girl rls in particular ildless couples re givers. An adoption arses girls to vio. A case moninpaha courts in reported in this how the failure )btain adequate or to making an d with a failure procedures for ulted in a placesed the child to abuse. We shall child abuse in foster care or ily point to the both existing rols in the legal as law enforce
by Family and
ational and naon child rights argument that d exploitation hild's rights of velopment and ) participate in is that affect his perception is ld in regard to
o face the risk 1 the family and
the work place. While both sexes are victims of child abuse the weaknesses in the laws and procedures, impact on girls who are particularly affected when child abuse occurs in domestic service or through sexual offences by adults.
We have observed that a girl child is exposed to particular types of exploitation through the social practices on dowry, the virginity test and solemnization of marriage due to parental pressure. Legislative interventions can take the form of statutory prohibitions on these practices and reforms in the law on divorce. Violence against girl children perpetrated within the family and in the work place constitute areas which require a more complex combination of judicial legal and administrative meaSures in order to impact effectively on the problem.
Child abuse is treated increasingly in the industrialised countries as an area in which counselling of families and children must replace institutionalisation of children and imposition of punishments on adults for criminal conduct. On the other hand, Sri Lanka's experience Suggests that children (the victims) are being detained in institutions while the offence by the adult is 'compounded' or settled. Even when an adult is prosecuted the courts are inclined to impose very low sentences which are often suspended.
7 OVoice of Women O September, 1998
Cases ofchild abuse in domestic service monitored in the Juvenile Court in Colombo in one period in 1991 and newspaper reports of cases in the last five years clearly reveal the leniency of the judical attitudes in this regard. The case studies reported in this paper bring out the dimension of leniency sharply, and indicate how courts 'settle' or 'compound' cases of child abuse because of concern with protecting adult interests. These receive greater attention than the child's interests which the courts are mandated to protect. The reluctance to impose severe sentences on adults appears to be based on considerations such as the adult's family responsibilities or the time he/she has already spent in remand or their professional standing in the community, and the police perception that these are 'minor' offences. The award of financial compensation to the child is considered adequate relief for the victim and an adequate reflection of the court's and community's disapproval of the conduct.
Compensation is awarded in crimes of violence such as rape and calculated in terms of loss of virginity. The payment is perceived as the adequate and necessary relief that must be granted through the legal system. We have observed that these judical attitudes are an outcome of values associated with the custom of the virginity test, and the Roman Dutch law perception of seduction as a civil injury entitling a girl to compensation and damages. In
a superior cour is an important nOun Cement O. several young I raped a young g received reduce appeal. Severa have reversed se peal and Suspen
Ironically the c abuse is treated by judges, lawy lice. Case stud this paper ind child victim of ported to and frc Court in the sa used for childt with the law. T victim is placec institution has ception that he / and is suffering The child is ofte all the authoriti a child placed'iu is a cruel iron where the lega meant to enSur turing.
The perception vacy prevents the police and conduct of pro A balance betv an accused from and the victim been maintaine reform in othe The problem i that there has
at all and thes invariably us women obtaini Reform in thi abuse must be
September, 1998 o Voice of Women o 8
decision that y judical proin sentencing, men who gang irl of 15 years d sentences on l recent cases intences on apded sentences.
hild victim of as an offender ers and the poies reported in icate how the abuse is transom the Juvenile me prison van ren in conflict he fact that the l'in care' in an created a pershe is detained a loss of liberty. 'n referred to by es concerned as n remand'. This y in a context l procedure is e care and nur
of family priintervention by influences the bation officers. veen protecting false allegation 's interests has d through legal r jurisdiction. in Sri Lanka is been no reform 2 arguments are ed to prevent ng legal redress. law on child combined with
awareness raising among the judiciary, the police the probation authorities and professional groups like lawyers, doctors and social workers.
The new international and national standards call for a combined and concerted judicial and administrative effort to ensure that the best interests of a child are protected. The basic premises of the Penal Code on Sexual offences in general, statutory rape and incest must be altered so that the significance of these offences as crimes of violence can be recognised in the administration of criminal justice. There must be a co-ordinated approach to the problem of violence between the several agencies that impact on law enforcement. Professionals such as doctors and social workers must be encouraged to give commitment to detecting cases of abuse and reporting adequately on them so that a prosecution can be sustained in
A new dimension to the problem of child abuse has been added by the recent introduction of Mediation Boards and the requirement that cases of hurt and grievance hurt should be taken before these Boards for 'settlement'. Public concern with the law's delays and the overcrowding of prisons has also created an environment in which the courts are disinclined to impose prison Sentences. Will this contribute further to entrenching lenient attitudes to
violence against women and girls? Clearly reforms of the substantive law will have to be accompanied by guidelines to courts on sentencing policies, as well as an assessment of the appropriate areas for media tion.
Sri Lanka's early child labour laws and regulations introduced under those laws prohibit the employment of children under 12 and employment of children between 12-14 years during School hours. These laws made the link between education and child labour. Girls have utilised the education system, and children below the minimum age for employment are not part of the labour force in agriculture or industry. Nevertheless girls above the age of 15 are tea pluckers in the plantations and are increasingly employed in industry within and outside the free trade Zone. Protection of their rights as workers, and safeguards against health risk and occupational hazards must be addressed in industrial policies and laws on women's work The problem of the exploitation and abuse of the working girl child often relates to the sphere of domestic work within and outside the family.
Most cases that surfaced in the Juvenile Court 1991-1992 in periods monitored by researchers related to girls used in domestic service. Juvenile Court authorities have also confirmed
that this is a ref eral scenario. duced before th offences such dealing with dr in the courts physical abuse vice in violatio. and the crimina cal injuries. T considered ind fective the lega been in prevent tions and protec from exploitati in domestic ser
These cases re ment of girl ch minimum age The Juvenile
compound or's and order com paid to the chi ploitation. A su pensation is us bank account name. As one cases indicates self may not d pensation and
may be one reac parties, the pro ties, the police Certain limitati ing regulatory this attitude o prevent the law effective dete
The single J. which is based no jurisdiction ties. The role basically to
placement of c flict with the be neglected,
9 oVoice of Women o September, 1998
ection of a genBoys were procourt for petty as theft or for ugs. Girls were as victims of n domestic serof labour laws l law on physihe case studies cate how inefl controls have ing these violating young girls ve child labour vice.
late to employldren under the femployment. Court tends to ettle' these cases pensation to be ld victim of exum paid as comually paid into a
in the child's of the reported , the child heresire this comthe 'settlement' hed by the adult »bation authoriand the courts. ons in the existcontrols foster f leniency and operating as an rrent Sanction.
uvenile Court in Colombo has over adult parof the court is etermine the hildren in conaw or found to und abandoned.
Consequently the court seems to feel that efforts to settle cases will ensure that some compensation is paid to the child, and this in itself will be perceived as a punishment imposed on the adult offender. However, the procedure creates an impression of leniency particularly when there are allegations of child abuse in employment.
Serious cases of child abuse in employment may be prosecuted by the Police in separate criminal proceedings in the Magistrate's Court. There appears to be an inclination to compound or settle even these cases unless the child suffers death at the hands of the employer. In that case there can be some pressure on the Police to prosecute for homicide. Unless lawyergroups and nongovernmental organisations are vigilant, these prosecutions may not be sustained due to various intervening factors. Besides difficulties of funding evidence and constraints in the criminal law itself hamper effective prosecution. We have observed that if the offence alleged is sexual molestation, the current law on rape and sexual offences does not encourage prosecution of adult offenders in the custodial situation of employment. Statistics in the Women and Children's Bureau of the city police indicate that there have been prosecutions for child cruelty. However, separate statistics on domestic servants have not been maintained. The police approach to these prosecutions reveal the em
phasis on the aspect of compensation, and the fact is that the cases themselves are considered "minor complaints. The bureau has aphotograph album of cases of child abuse in domestic Service. Many of these victims are girl children.
Prosecution against employers for the simple act of employing children below the minimum age of employment are most uncommon. The Women and Children's Bureau of the Labour Ministry can only recall one case of prosecution in the last five years.
A prosecution requires the consent of the Commissioner of Labour. Police and probation authorities find it easier to bring a child domestic servant before the Juvenile Court for placement in care. In the process, the case against the. adult is compounded, and the victim receives some minimal financial compensation.
We have noted, in discussing child abuse, that the girl who is brought before the Juvenile Court as a victim ends up being treated as an offender who is placed "in remand' in a State Institution or one managed by a nongovernmental organisation. The concept of detention is refleted in the common use of the word 'remanded' to describe a child placed "in care' in an institution. One of the case studies reported indicates a child placed in an institution can end up again as a domestic Servant.
Extracted From The Girl Child - Shadows and Vistas -
Equality Before the Law a Equality in Marriage and F
Kishali Pinto Jayawardena
Underlying all CEDAW (Convention on the Elimination of Discrimination Against Women) principles that aim to protect marginalised women is the specific warning that formal equality in terms of law is pointless without fundamental social, culturaland attitudinal change. How has Sri Lanka measured up to this obligation?
Considering the advances that have taken place through the last two decades em powering the Sri Lankan
with regard to
woman, there are certainly some changes to be applauded. In 1995, 18th century penal laws were amended providing for tougherpenalties in the case of rape, and recognising the offences of marital rape (albeit between judicially separated spouses) and sexual harassment. More recently, women ri ghts activists rejoiced when, as the result of their hard fought labour, authorities agreed that the birth certificate of a new born child need no longer contain the information whether the parents were married or not, releasing the child from the Social stigma of illegitimacy, Meanwhile, "protective legislation' that prohibited night work for women had already been re
pealed (Night W 1985) and wo vants brought curity Schemes (Widows and Fund Act 1983).
Impact of Lega
These can be see gal advances. Th however, is wheth noteworthy lega impacts on the
Lankan women. C does not have to c dowry death, tho of this was report Lankan newspap infanticide like in the South Asian of gender discrim in this country arc
Indeed, they are
gerous in that th nature, such as
sexual discrimi ning all this is a confidence in th even those progre enacted have had victimised wome
Societal and struc
nd Civil Matters
Vork Legislation men public serWithin social seavailable to men, Orphans Pension
nas significant lele question now, er such apparently reform actually marginalised Sri Granted, Sri Lanka ope with issues of ugh a single case ed recently in Sri ërs, sati orfemale other countries in egion, but issues ination prevalent nonetheless real.
all the more dany are of a subtle overt and covert ation. Underpinery real crisis of country where Sive laws that are hinimal impact on facing significant tural discrimina
tion in their struggle to break out of the vicious circle that they are trapped in. To a large extent, the law has become irrelevant to these
One example would suffice. The 1995 amendments to the penal laws provided for enhanced punishment for rape. Surveys done since then have shown that the new laws have had minimum effect, due to judicial attitudes that insist on corroboration of the women victim's claim.
(i.e. the victim has to bring forward the testimony ofan independentperson to support her assertion that an act of rape had occurred) A 1996 case (Punchibandunge Wijesinghe Rajaratne Vs The Attorney General
CA 23/01/1996) did hold that this cautionary rule may be ignored so long as the jury is satisfied with the Veracity of the evidence).
Commentators, however pointed out that this was a particularly horrific case of childrape in which the Court of Appeal had no option but to make an exception from the general rule. In those rare cases where a judge departs form this conservatism in any bold fashion, the consequences
September, 1998 o Voice of Women o 11
are not pleasant. The recent furore caused when a feminist High Court judge Sentenced a popular film actor to ten years rigorous imprisonment for committing rape on one of his female fans is one good example. The judgement continues to be looked upon as an aberration, and the sentence is considered to be too harsh irrespective of the fact that the 1995 laws stipulate a minimum penalty of seven years rigorous imprisonment for rapists.
Reasoning and Practice.
On the one hand, there are progressive laws in Sri Lankan statute books, and in the other hand, much of their effect is diluted in actual practice. This impotency of the law has had many negative effects. The very discussion of law reform remains a rarefied subject that does not touch the average women, and activists have preferred to focus on a more grassroots approach to tackling gender issues rather than coming before court. It is significant that in all the ten years since constitutional guarantees of equality were enacted in 1978, not a single case of a violation of the fundamental right of equality on the grounds of sex was brought before the Supreme Court. Again, though the 1995 laws brought in a new offence of sexual harassment, not a single case has been filed up to date on the basis of these laws. This despite the fact that a 1996 study conducted by the Conference of Public Service Independent Trade Unions (COPITSU) found that 81.3% of Sri Lankan women are subjected to sexual harassment while using public transport.
The existing const tee to equality ha minimal effect as
crimination is con
where it is flouted ployment law is ol complaints being ri jected to discrimin employment with and firing practic Women are callec they are confronte of personal questic ing out whetherhi lead to ' excessi granted on accou sponsibilities, preg Instances of mate denied in spite ol that give womenth found in the public ten, WOmen are r forward and challe istrative decisions Patio May/June 1
tively castrated This is reflected i unemployment
women, estimate vanced Level qua unemployed, in c 9.1% ofmale une similar qualificati structures and lab
tices have been of as hindering the a cated women inti (ST 21/05/1995)
Acknowledging Lankan National at the UN Four
ence Women in B
that economic lib
12 o Voice of Women o September, 1998
tutional guarans itself been of ar as gender dis'erned. Instances are legion. Eme example, with fe of women subtory treatment in regard to hiring es. Often, when
for interviews, d with a barrage ns aimed at findring them would ve' leave being nt of marital renancy and So on. inity leave being statutory rights is right have been sector. Most of
eluctant to come 'ngethese admin... (The Thatched 990).
have thus effecegal guarantees. n the high rate of
among young d at 23% of Adlified girls being ontrasted to only :mployment with ons. Occupational jour market pracficially identified bsorption of eduo the work force.
this fact, the Sri Report presented th. World Conferxijing, China stated 2ralisation has had
no significent impact on a majority of Women in the country, and that wage structure are generally unfavourable to women. Whatever equality that exists in wage structures exists only with regard to women workers at the higher end of the wage structure, while their more unfortunate sisters are mercilessly exploited, Some specific categories of exploited women are specially worthy of note.
Female domestic servants is one category that immediately comes to mind. It had been pointed out that laws providing for written contracts in the employment of domestic workers in Sri Lankan households is a dire necessity. At present, domestic helpers do not have regulated working hours, rest days or holidays, medical facilities, gratuity and employment benefits enjoyed by other workers. An old 1871 Domestic Servants Ordinance provides only for the protection of employers in the case of domestic servants with previous convictions.
Other categories of women workers exploited include the garment factory workers in the Free Trade Zone whose plight has often been focussed upon by the media. These workers are compelled to sign contracts that are clearly illegal both according to Sri Lankan labour laws and ILO standards. These contracts stipulate a number of conditions including the following; that they should agree to
work overtime when asked to do so, that they should agree to resign when they get married, and that they will agree not join any labour union; without prior written approval of the managements. Many of these unfortunate women work, sleep and live under appalling conditions, and do not seek recourse from Labour Tribunals due to their ignorance. Their employers can not be called to order under the constitutional guarantees that prohibit gender discrimination, because the latter does not apply to private sector employers. This problem will be remedied if national legislation is brought, extending the prohibition against gender discrimination to all employers, whether public or priVate.
In as desperate a situation are the foreign migrant workers who travel to the Middle East following contracts entered into with unScrupulous employment agencies, and work in conditions of virtual slavery. A number of whom have been brought back to Sri Lanka in coffins, their deaths causing only a momentary sensation. These women have been acknowledged to be the country's top foreign exchange earners for 1997 and up to June of that year, their remittances have been estimated to amount to Rs.25, 231 million. An estimated 600,000 foreign migrant workers are reportedly employed in the Middle East and Far East alone. (DN 17/11/ 1997).
Responding to widespread outrage at the plight of these workers, the Government enacted new laws in
1997 that bring fo agencies under So trol.
tracts entered into
The laws s
ers and foreign a binding and emba ing countries be ister all foreign ag It remains to be
new laws would
Meanwhile, planta tinue tostruggle un The so called equa erates at its wor: conducted in the show that several are clearly discrin no night work by for women. They hourday togetpai as men working ! retirementage is 5 55 for males. Aft the plantations, ea encouraged as a p
eign employment ne degree ofconipulate that conby migrant workencies should be sies in all recruitompelled to regencies with them.
seen whether the make any differ
Violence against Women
Though the problems of these women continue to be highlighted, substantive reform of the conditions under which they work is still forthcoming. Anothersection of the law that cries out for reform relates to domestic violence, the victims of which transcend social barriers with surveys having shown that women executives are as likely to be abused as their village sisters.
tion workers con
derheavyburdens. lity provision opit here. Surveys plantation sector practices exist that inatory. There is abour regulations have to work an 8 l the same amount or 6 hours. The 0 for females and er privatisation of ly retirement was blicy.
There is no special law at present dealing with domestic violence, the only recourse being through the penal laws. The 1995 amendments provide for the expansion of the definition of grievous hurt to include injury in consequence of which the opening of the thoraisic abdominal or cranial cavities is performed'. This is an advance over the previous legal position, but the problem remains that in many cases, battered women are reluctant to approach the law due to social
September, 1998 o Voice of Women o 13
Personnel at the
Women's and Children's Bureau at
police headquarters say that only 25% of those incidents get actually reported. (DI 25/08/1996).
A study conducted in 1993 revealed that 60% of women in Sri Lanka are subjected to domestic violence. (MM04/06/1997). Confirming this alarmingly high rate, another survey, the contents of which were released at the 107th anniversary SesSions of the Sri Lanka Medical AS
sociation in 1994 stated that a majority of these women had been assaulted during pregnancy, Sustaining head and face wounds. While most of them had sought medical treatment, only a quarter of them had revealed the reason for their injuries. (So 27/03/1994). This reflects the deep sense of social shame that these victims feel, resulting in wife battering being one of our most well kept national secrets. Separate legislation dealing with domestic violence is therefore long overdue.
As was pointed out earlier in this report, judicial attitudes with regard to rape need to be reviewed so that the cautionary rule requiring that there be corroborating of the evidence of the woman victim be re
laxed more as the rule rather than as the exception. Legal analysts have in fact called for legislation to be adopted to remove this cautionary rule from the purview of judicial instruction (State of Human Rights Review 1997 / Law and Society Trust).
Meanwhile, laws prohibiting abortion continue to be antiquated in that
they insist that me of pregnancy coul to save the mothel
eral laws that allo
mination in certi trolled circumsta
pregnancies cause Cest Were Sugges were shotdown du lic and Muslim lob tators pointed out sistent policy on til tors, who could a that came out force
and incest but sto tending that Sam pregnancies conce forbidden acts. lightened legislati remains a d
So too it is with pr sions relating to : Lankan law make
the act of immor
sexual services ille
law is set out in t nance and the Va, both of which are
which view the v
fender rather that sexual exploitatio
Private prostitutic by the law which street prostitution, are considered to derly'persons who cause a public nu ing public decen Every such com liable to be impris out hard labour f ceeding fourteen ( person Soliciting for the commissi
sexual intercours oned up to six
14 O Voice of Women o September, 1998
dical termination d take place only 's life. More lib
wed medical ter
ain strictly conances such as in :dby rape and inited in 1995 but e to strong Cathobying. Commenthe lack ofa conhe part of legislagree to new laws :fully againstrape pped short at exe prohibition to eived out of those
The need for enon in this respect ire necessity.
resent legal provisex workers. Sri es prostitution or al earnings from egal. Therelevant ne Brothels Ordigrants Ordinance 19th century laws woman as the of
as the victim of
n is not catered to deals only with Street prostitutes be "idle and disor) are vagrants and isance by offendcy and morality. mon prostitute is oned with or with
or a term not exlays or fined. Any any other person on of any acts of e could be imprismonths or fined.
Arrest could be made without a warrant. Complaints made against this law is that it is heavily patriarchal in that the woman is looked upon as the offender rather than as the victim of sexual exploitation. The pimp, procurer or client who solicits the entrepeneur in the sex industry es
capes scot free.
A frequent complaint also made in courts is that it is difficult to bring in modern sex institutions within the
outdated definition of brothels as set
down in the Brothels Ordinance.
The law therefore needs to be righted. Moreover, it has to be pointed out in this context that many of these women have to languish in remand prison due to inability to pay the fine imposed on them. The fine can extend up to Rs. 10,000/-, a princely sum for most Sri Lankans, let alone prostitutes.
In addition to the fine, they are required to produce an official certificate and the entry at the police station, all of which can be obtained only by paying bribes. Meanwhile, court officials themselves ask for handouts. As a result, prostitutes unable to find the necessary cash crowd the remand prisons. Sri Lanka has been identified as being one of the few countries in the world in which the number of remand prisoners exceed the number convicted. Statistics have estimated that only 25% of those remanded end up with a conviction (ST 07/12/1997).
Laws relating to bail were recently amended to provide that the granting of bail ought be the rule rather
than the exception. They have been criticised on the basis that a great deal of power has been given to the police officers who because of the entrenched corruption of the police service, might not be the ideal authority to be vested with such disIt remains to be seen whether this fear will be manifested in reality. If so, the laws will have to be amended yet again.
Inability to pay their fines is a problem common to other women brought within the prison system, a considerable number of whom are inside on drug related offences. It has been estimated that in 1994, as many as 79.5% of convicted prisoners were in jail due to inability to pay the fine. A recent report of a ministerial committee appointed to look into the defects in the prisons system urged that judicial officers consider other options of sentencing such as probation orders and community service orders, rather than fining or imprisonment. It was pointed out that this was one way of lessening the severe overcrowding in the prisons, currently estimated at a catastrophic extent 400%.
The other recommendation made by the committee was that judges be cautioned that no person ought to be sentenced to jail for a period less than three months, that no sentence in default of a fine ought to be imposed and that a court passing sentence of imprisonment ought to state its reasons why no other sentence is appropriate. These suggestions were made in the context of 1994 statistics that show that a staggering 82.1% of convicted prisoners
were those und imprisonment up
While conditions oners irrespectiv prisoners sufferi Statutory condit their detention b. males. Howeve sources, basic food, water and hotly contested. look after their 'hellholeconditio prostitutes, vagr are all put togeth hopeless results.
Reports of viole side prisons are occurred recently April 1996, seven at the Welikada saulted by suspe also in prison attl 22/04/1996).
According to sta 1981 by the Com Reform, another mittee whose re. in the Sri Lanka 1981 reported sp conditions of w The report poi numbers of thos remained const total of 4,117 fen ted to prison, of remand prisone admission figur mand prisoner victed.
The majority of according to the
going periods of o one year or less.
re bad for all prisof gender, women mense hardships. bns stipulate that separate from the due to lack of reacilities such as Dilet facilities are Women prisoners children in true s. Youngandold, ints and terrorists r with predictable (ST 7/12/1997).
ce on womeninommon, as what when on the 12th women detainees
prison were ascted drug addicts he same time. (VR
istics released in mittee on Prison ministerial comport is published Sessional Papers ecifically on the omen prisoners. its out that the : convicted have nt. In 1978, a ales were admit
hom 3,706 were
s. In 1972, the
s were 1,610 re
and 479 con
2male prisoners, port, are housed
in Colombo and Kandy prisons where living conditions are most oppressive. We make a strong plea for a seperate women's prison to be established. This was in 1981, more than sixteen years ago. No action on their recommendations appear to be forthcoming by Sri Lankan policy makers.
Equality in Marriage
Proceeding to family law, problems are also obvious with current laws relating to divorce that continue to be based on matrimonial fault. For long, it has been pointed out that they ought to be amended so as to reflect attitudes more in keeping with the times. Suggested amendments to the Marriage Registration Ordinance in 1996 that liberalised existing laws of divorce and provided that a party could request divorce on the grounds of irretrievable breakdown of marriage of which the test shall be actual separation from bed and board for a period of at least seven years were abandoned due to opposition from several groupS.
It was pointed out that the amendments were badly drafted and did not deal with legal reform relating to matters ancillary to divorce such as custody to children and financial support. A wider consultative process that would take discussion of these issues into account and put forward revised laws was urged, but has not materialised. This too remains a priority as far
September, 1998 o Voice of Women o 15
as gender based legal reform is concerned.
Citizenship and Nationality
Meanwhile, what of laws relating to citizenship and nationality? They remain blatantly and impossibly discriminatory in spite of widespread calls for change. Granting of residence visas to foreign spouses of female Sri Lankan citizens. The Controller of Immigration and Emigration has gone on record in stating that he has the authority to inspect the marriage in issue where it is a female Sri Lankan married to a foreigner and determine whether it is even slightly suspicious, in which case obviously, the residence permit will not be granted.
Arguments that this constitutes violation of privacy rights and the right to equality have been disregarded. Again, Sri Lankan women who have foreign husbands are denied the right to pass citizenship to their children automatically, even if they are born in the country and grow to adulthood in the country. The reason for this is that citizenship laws specify that citizenship can pass only through the paternal line and not the maternal line. The Citizenship Act is therefore a clear violator of the constitutional guarantee to equality. It is also a violator of Article 9 of CEDAW that postulates that women have equal rights to those of men, with regard to their children.
In 1995, the Law Commission (an independent legal reform body
constituted withi fession) suggestec the Citizenship women the power ship to their child reaucratic red ta mendations have
mented to date.
Act itself cannot before court due the Constitution c Supreme Court th lenge existing la the proposed cons package has not sition though the that such obviou tory laws be refer tee of the Parliam then go into the whether they nee
The question whi laws that discri
women should be der to bring it in l eral law of the co to be a part of ti discourse in Sri I striking examp course those pr Muslim laws tha tory, but continu ful Muslim lobby change as under gious identity.
From Sri Lan Report on the prepared by S FORUM
16 o Voice of Women o September, 1998
the legal proamendments to Act that gave to pass citizenren. Due to bupe, the recomnot been impleVeanwhile, the
be challenged to the fact that oes not give the e power to chalws. At present, titutional reform xhanged the pore is discussion sly discriminared to a commit
ent which would question as to d to be changed.
ether customary minate against amended in orine with the genuntry, continues he gender rights lanka. The most le of this is of
ovisions of the t are discriminale due to powery that looks upon mining their reli
TeSa Walanai Legal System
Dr. Selvy Tiruchandran
The customary laws of the Tam is in Jaffna are Called fesavvasamai. It literally means "the Customs of the land". It is a Collection of the customs of the inhabitants of Jaffna pertaining to inheritance, property rights, dowry, adoption laws, laws on slavery and divorce. It was codified by the Dutch Governors in 1706, approved by the local Chieftains, later adopted by the British and remains the operational law till now. It is generally accepted that Tesawalamaiprotects the rights of women and indeed may contribute to the better status of Women in Jaffna (Tambiah S.J. 1973) (Perinbabayagam, 1982). Some parts of Tesa Wasamas show very clear trends of a matrilineal system favourable to women. An ambivalence towards the patriarchal blend is also visible. /esawasamaf insists on the attainment of the age of maturity for marriage for both men and Women. This clearly shows that child marriages were not encouraged. According to the Manu DharmaShastra the parents are guilty of a heinous sin if the daughters are not married before puberty. In the olden days, as testified to by the Tesa Walamas, there were no elaborate marriage rites and Ceremonies. The central rite was the tying of the ta/i fo|- lowed by a simple ceramony performed by the elders with a
elabOrate Cerer Sanskritic mant, is a recent ini hOrmann CeremC companied by t rites Connected the virgin (kany. kinds of gifts ar rites accompani of Sanskrit vers are Super impo on the simple n known to the Tambiah, n.d.).
Many of these at the Weddin Caste ve/arlass brought into Ja stream of migr from SOuth Indi, introduction oft marriage rites legitimised Dharma sa Stra brahmin priest ceed in creatif of a devalued mantras are i alien languag comprehensio and groom anc tion. It signifi Ce SS Of limit glamour alone meaning. It b bol of high behaviour wit ideology behir Sorbed. Neith role m Odes Same value Sy
The present honies with the as with horman Ovation. The )ny, the rites ache recital of the with the gift of tanam), the six |d the elaborate ed by the recita es, Called Slokas Sed Aryan rites uptial ceremony Tamils (H.W.
rites performed gs of the high were probably ffna by the later ation of Tamils a. However, the he Brahmanical
by the S and the S did not Sucng an ideology Women. The n Sanskrit, an e beyond the n of the bride the Congregaed only a proation for the and not for the
ecame a symcaste social out the entire |d it being abær did it Create Oased on the
The customs of stepping on the grinding Stone as part of the marriage rite which is performed in Hindu marriage is an example of this. This rite represents the fallen status of a woman who was turned into a stone on the grounds of infidelity to her sage husband. This is a puranic myth. However, this phenomenon cannot be generalised as an example of Sanskritisation in Jaffna. The Brahmanial lifestyle did not have an appeal to the people of Jaffna. There was no ideologia Conversion to a Brahmanical value system as far as Women were Concerned. The elaborate colourful and prolonged ceremonies and rites were enacted like a drama with an audience looking on.
As stated by H.W. Thambiah, the formal type of marriage among the Tamils was simple and devoid of religious rites. The marriage rites among the ancient Tamils varied, but in the main, consisted otthe tying of the tali by the bridegroom, and the gift of a cloth to the bride (kurai). The /esa Wasamaf too recognised these Ceremonies asthe Only important rites. On Some marriageS, Thambiah addS that Ganesha, the God of Nuptials, is invoked by a simple ceremony performed by the elders. The ceremony consists of the planting of a piece of kusa grass in ball Of COw dung and ÎVoking the blessings of this deity. (Tambiah, H.W., No. 107).
September, 1998 o Voice of Women o 17
Among the ves/a/ars, these ceremonies were the only Ones observed at one time (See Report Of the CommisSions Regarding the Marriage Cerem O nie S). Sin Ce the Se simple ceremonies are very Similar to those of the Malabars of the South-West Coast of India and Since Samabantasm is the term used even today to designate the matrimonia| aliance in Jaffna, Thambiah H.W. argues that the Jaffna Tamils have more connections with the Malabars of the south western coast of India. The more e ab O rate form, Of Viva/ha practised today is a more reC e nt innovation by Brahmanical priest craft and Were brought by the later stream of Tamil migration.
That sesa Wasamafis a Curious
co-existence of rites showing
tendencies of both matrilinea
and patriarchal systems in a so
ciety could be explained by the
fact that some of the Dharmasastric concepts crept into the /esa Walamaflaws before they were codified. The
impact of the Roman Dutch
Law which is visible could
have possibly been assimi
lated during the process of
the Codifiation. VesavValamas has been modified from time
to time, so that today the impact of the English Law is also
in evidence (H.W. Thambiah).
This infiltration process has had a negative impact on
Women. A discussion of Tesawalamafas far as how it affects Women is essential to
exactly determine its progresSive trends and the Subsequent infiltration of a patriarchal system.
/eSa M/a/ama/ di erty into three nutssan, Cf tedivatetan. O is the inherited man from his pa is the property given by her par marries as part ance and tedi) acquired prope and wife in their three types of p separate. Chita the wife legally to the husban duired property to both husbanc property is divid Sons and daug lowing manner. get the dowry and the Sons t the father. The erty is divided the Sons and d daughters getth they marry as C the sons inherit at the death Oi Women have a erty of any kinc immovable. (1973) arguesth has a much Str( female propert contained in the DharmaShastra
The woman's Verts, in the e\ ing without iss ters, sister's
grand daughte and does not band. The wif not liable for
debts. The re. of her property able for her hu If the wife die ther remains in her estate. If
18 O Voice of Women O September, 1998
vides the prop
Categories as stanan and f this, multisarm property of a rents, Chitanann of the Woman, ents, when she of her inheritvatetan is the rty of the man
lifetime. These roperty remain nam belongs to , the nudisarn d and the ac
belongs legally and wife. The ed between the nters in the folThe daughters
of the mother, he mutiSum Of acquired propequally among
aughters. The heir share when lowry, whereas their share only F their parents. CCess to propl, movable and
S.J. Tambiah at IeSawalamaf onger notion of y rights than is classical Indian
Chitanam revent of her dyue, to her sisdaughter and r, in that order, go to the huse's Chitanam is her husband's nts and profits
are also not liSband's debts. s the wife's fa
the man dies
with children the wife takes charge of the whole property and her dowry. The husband manages the property of the wife but cannot take it over, or inherit the property. Hence the property of the husband and wife is kept separate.
Divorce and Remarriage
The 7eSavva/armaj itself provides no ceremonies for a divorce and Speaks of a separation of the property when the wife or husband lives apart and contemplates remarrying. (Thes. Code. Part IV. Section | and Part , Section 10). The recognition of polygamy placed no reStraint on husbands getting remarried. Some Christian and Victorian ideas were incorporated when the fesavvasamai was Compiled by the Dutch and hence the absence of any provision that a woman divorced by her husband without formality
could contract a legal marriage can be explained.
But when she remarried, she had to give up her right to the hereditary property and half the acquired property of her husband in favour of her children. (Thes. Code, Part , Section 9 and 10).
When one examines the Customary Laws of the Tamils of Jaffna, one isforced to the Conclusion that in Tamil society a divorced woman was not prevented from marrying a second time. The /esawalama/permits the remarriage of Widows. These factors, it has to be emphasised, are violations of the Dharmashastric principles
which categorically forbid Widow remarriage and divorce. However widow remarriage and divorce, were / are notably prevalent among the nonBrahmanica OW Castes. DeSpite customary and the legal requirements being lifeted in India by law, Women are still unwilling to remarry due to the soCial stigma attached to such practices.
When widows remarry the daughters by both marriages get her property. When a widower remarries he must ensure that the wife's dowry, and fifty percent of the acquired property (till then), should go as dowry to the daughters. It Would then mean that, when the wife wants a divorce from her husband she gets her dowry back, and half of the acduired property.
It would be interesting to note that when these customs were codified, women were not gainfully employed. Hence her entitlement to the fifty percent of the acquired property is for the Services rendered as a housewife and mother and to the general upkeep of the family which she maintains (wages for household labour).
The chitanam or dowry is divided into three parts, cash, jewellery, land or house. While the movable property can be mortgaged or sold by the wife, the immovable property can be sold, mortgaged only with the Consent Of the husband This could be an infringement on her property rights, considering the fact that the husband can sell his mutusam and the ted/yate tam Which he has earned, without the Consent of
the wife. It wa lieved that wom World-Wise nee and authorised dertake major Disposing of a Women was bro triarcha contro
WO in a gO /esa M/a/anaf is sole. She is st marital power C The right of the hiS COn Sent to t mortgage of his immovable pro dence of his ma Ramanathan : 1 cept is alien to
More importar advantage of 7 Women is in the
Vorce or Separa VVO ՈԴ ՅՈ CC /esa M/a/anal in divorce or sepal husbands getth and half the ac of the husband. squanders the dowry is dimi marriage the made good fro property (tediy husband (Tamb The right of the Chitanam and t reduced to a gr dependency st and this in fact a Status of the si the community
The idea of har property and h rights on their also Other re WOmnen. Wom on their propert bands. This fre intervention. domination mo
s probably been who are not to be checked before they untransaction S. ld or house by ught under pa. "A married verned by not a femme bjected to the F the husband". husband to give he alienation or wife's separate perty is an incirital power" (Sri 972). This Con/esa Wallamai.
tly the unique esawalamas for situation of dition. The Tamil Verned by the event of a ation from their eir entire dowry quired property "If the husband dowry and the nished during same must be m the acquired atetam) of the iah: H.W. 1965). women to their edivatetam has eat extent their atus On OtherS CCounts for the ngle Women in
ving a separate aving exclusive property have Suts for the an as wives live y with their huses them in-law he oppressive ther-in-law Syn
drome which is found in the Indian scenario is not a problem for the Jaffna wives. The conflicts they have with their mother-in-law are conflicts in terms of generation gap. But there is no domination by the mothers-in-law. The doWery as Spelled out in fesavvasamas has a strong similarty to the Malabar System and has very little in Common to the Stridhana knOwn ίΟ Dharmasastras. /esaMva/armaj recognised the right of Women to her own property - towards the upkeep of the property whereas the notion of female property right is alien to the DharmaSaStraS.
Thus the Tamil customary law recognised the economic independence of women. Her dowry property, gifts received by her and property inherited by her were her separate property. In this respect the Customary laws of the Tamils are superior to some of the texts of the Dharmasastras which were reluctant to recognise the separate property of the wife.
There are other significant differences between the Dharma sa Stras and fesavvasamai Codes:
The adoption of a son by a sonle SS Coupe among Brahmanially influenced indians is done in order to provide a son to perform the funeral rites. But under Tesawalamai, both women and men are given the right to adopt only to provide an heir (Tambiah, H.W. n.d.); barenness or absence of a son are not grounds for divorce. Sons and daughters are treated alike in terms of love and child care needs; girls are not devalued in day to day liv
September, 1998 o Voice of Women o 19
ing (Thiruchandran, 1984). Selective abortion and Sex Selection by amniocentesis in India are Symptomatic of the residual ideology of infanticide. The recent phenomenon of dowry deaths and the revival of "Sat" are a sad twist of a religious identity crises and an oppressive dowry system to suit the demands of consumer capitalism. A testing of this phenomenon by an analysis of the situation against the Socio-economic totality should finally lead to the concept of a devalued woman. This phenomenon is not overtly expressed in the Socio-religious patterns of existence of Jaffna.
Apart from th Cepts and the hind them W. cessfully coni minishing the the female, th SOCial Structu which helped Certain "unique stitutional
(Obeysekere 1 left an ideolog which help to tr ter even to th They help to a roles. Cross-C which was the days took awa alienation, tens of strangeness
20 OVoice of Women O September, 1998
ese legal conideology behich has SuCtributed tO disufferings of here are a few ura elements this process. lly Dravidian infeatures" 987) have also y behind them eat Women bete present day. djust her social Ousin marriage norm in olden |y much of the ion and feelings of the women
When she entered the folds of the newly acquired relationship - husband, father-in-law, mother-in-law, sister-in-law and brother-in-law. In a crosscousin marriage the husband is known to her from her infancy and the husband's parents were her aunt and uncle who have now acquired the new kinship |label of mother-in-law and father-in-law. She has moved with them from infancy and she is aware of and used to their temperament.
The system of child marriages by which little girls are burdened with the heavy responsibility of married life, a Brahmanial Custom, is totally absent in Jaffna.
The two children were huddled together, fast asleep,
exhausted in theirmisery. MÉala ay down on the bed beside their limp bodies, and closed her tired eyes. Her world had turned into a dark abyss. The light of her life had been taken away.
Through the blackness all she could see was the face of Sarath.
His dark eyebrows and gentle eyes, and his mouth which so often smiled loVingly at her. She could not stop the tears which flowed not only from her eyes but from deep down inside her.
The army jeep had dropped him off near the del tree at the top of the hill. The children,
Sugath and Kanthi , were playing in the garden. She heard them shouting and went out to,
see what the commotion was all about. Then she saw his tall lanky figure walking down the incline, his bag held Over his shoulder, and that unruly lock of hair falling across his wide forehead. Sugath and Kanthi were running to him calling Thaththi, Thaththi. She came cut and stood at the little picket gate they had fixed at the entrance of their garden. The children were leaping on him and he had put his bag down to hug them both. He looked at Mala Over their heads and they Smiled at each other. He was coming home after almost four months. Her happiness at seeing him again was indescribable.
Sarath Comes from a different caste, her father had said. After all, lamented her mother,
you must remen uncle is a Meml ment and your ) Managing Dire COmpany. Sarat suburbs. He
ColombO schOC was granted a when he was tWe Sarath met SOOn started workin ment Corporati We have nothi you, her father
You have disgri family. Her n though there was house. My life: mourned, throug
Mala Was heart ! family treated status influe words that Caus hurt and bitte. Sarath had a c The first few ye cult. Money was enough for the: Then suddenly struck. Sarath nomics Degree, high position ment Bul S Kelaniya. Afte work they ha build a hous their family nOW twelve, t like his father was a delightf a mop Of Curls that special a
The country we the Constant st ery evening th
ber that your yer of Parlia
brother is the ctor of a big h was from the attended a
ill because he scholarship :lVe. Mala and after they had g at a GOVernon in Colombo. ng to do with had proclaimed. aced Our whole other wept as s a death in the is Over, she had gh her tears.
Oroken that her
her SO. Caste, ince, wealth - sed her so much rness. She and suite wedding. Aars were diffis scares, barely ir daily needs. r good fortune l, with his Ecowas offered a
in the Govern
Company at ar years of hard .d managed to e; a home for Sugath was all and lanky ; Kanthi at five ul child, with 3 that gave her
geli C lOOk.
as shattered in
rife of war. EV— ey WOuld sit be
fore their little TV set and watch the news. Most of it was about the war. The papers were bursting with the details of each conflict. Wherever they went people spoke about the War. The brutal ruthlessness was incomprehensible. So many killed, so many maimed and so many homeless. Such hopelessness.
Sarath was often full of silent thoughts. He would sit On his
haansi putuwa on their little verandah and look out at the trees in thir garden. The del tree was in flower and the jambu tree was already laden with succulent red fruits. The Cup of tea she had brought him was left untouched on the table; coldland tasteless.
What it is? She asked him, breaking through his silence.
He sighed. I have been thinking about this war. TWO boys in the office have resigned their jobs to join the army. I met Sunil mama in town today and he told me his son is now a Major in the army. I was thinking, I can't just sit here, enjoying life like this, when all my friends around me are doing something worthwhile for their country.
Mala was silent. Asharp frosty chill ran through her body.
Hardly a month had gone by when Sarath had registered to join the Army. He had to go Out of Colombo for his training
September, 1998 O Voice of Women O 21
programe. Mala and the children missed him so much! But they knew he was safe. Then came the real thing. He had to go to the front to engage in actabattle.
She wathched him silently as he packed his bag, getting ready to go. The army jeep would pick him up at 6.30. It was now 6 in the morning. Sugath and Kanthi were at the well, having their early morning baths before they left for school. They were splashing each other with water, shouting and laughing loudly. She went out and told them not to make such a noise. Can't you see your father is getting ready to go - must you shout so much? They had looked at her with surprise; this was their daily routine. They could not understand her irritation. They came quietly into the house and dressed in a hushed silence.
Sarath asked them about school. So Putha SOOn you will do the Scholarship exam - you might get a chance of going to the big school in Colombo Sugath looked serious. Aiyo I don't like to be away from home, he said to his father. Sarath placed his hand on his son's head. "At a certain time in One's life One had to move away", he said seriously, "that's the Only way to make progress".
The toot of a horn made them look up. The jeep had come to Collect Sarath. Mala watched him, her spirit weighted down with the sadness of seeing him leave. She tried to be lighthearted. She smiled as though she did not have a care in the WOrld. Sugath asked excitedly,
"Thaththi are you going in One of those new planes? I saw them on TV the other day and they looked really marvellous!"
US SOS SWe6 come back", ple her high pitched looked at them
held them in h go to School", "and remember Ammi when I al
children ran ( dressed in their
uniforms and Sl navy blue short tered without p other as they I Out of the comp watched them go past the del tr were lost to Sigh
Malla Could feel t ing her eyes, t her face and S wiping them gen see me before
has happened", They walked to and then up the The jeep was pa
tree. Two offic SImilled at Mala about him", the "He'll be back They revved the a trice the jeep of dust in the dit
Abanging On t
early hours O rudely awOke hé
22 O Voice of Women O September, 1998
forget to bring its when you aded Kanthi in dvOiCe. Sarath lovingly as he is arms. "Now he said softly,
not to worry m away". The Diff skipping, i spotless white ugath. With his is. They chatlausing to each made their way pound. Sarath Over the hill, ee - then they
the tears stingrickling down arath's hands tly. "You will you know what , he told her. the picket gate hill together. rked by the del
ers got down and "Don't worry ay said to her. really soon!" : engine, and in ) was just a blur istance.
he door in the f the morning Sr. She Lubbed
her eyes sleepily, and went to see who it was. Two army officers stood Outside. Their faces bore an insrutable expressi Cn. They had Carried out this task so many times recently. When she saw them she knew it was bad news. "The
plane had Crashed into the sea shortly after take off", they told her. "They had managed to res Cue some of the bodies. One of them was Sarath's". She just stood there. Dumbstruck. Her eyes saw nothing, her mind a maelstrom of anguish. Sugath and Kanthi had woken up for the noice and were peering at her from behind the bedroom curtain. Their eyes were filled with anxiety and fear. "What is it Ammi ? Why have they CCIme"? She fell On to her bed sobbing Out grief and agony. The children cried Out aloud with her. The wordskept Coming back. "You will see me really SOOn". She did. She saw him hardly a day after he had lefther; but he was dead, and they had sealed the coffin concealing his tattered, mangled body which lay inside. Coldlandlifeless. She felt as if some ville beast was tearing Out her insides. The two children, silent and swollen eyed, clung to her, fearing that she might go away too.
When Mala awoke the oppres— sive darkness stifled her. She realised the little oil lampbeside her bed and gone out. Getting up, she felt her way to where the lap was, and relit it. Its flame shOne bravely, defying the ominCUS the blackness of the night.
There is no doubt that Over the
last two and a half decades male violence against Women and Children has become an issue of increasing public ConΟ Θ Ι .
Today violence in Women's perSonal lives is recognised and in various ways is being challenged. Feminists have been active is seeking changes in the policing of violence against Women and have fought and achieved much law reform in this area. However, despite the gains made by the women's movement over the last two and half decades violence against Women still exists on massive scale. Although Women have increased access to education have many more options relation to employment opportunities, and as a result of legislative development reforms of redress in some areas When they experience discrimination, Overal women as a group still do not have economic or political power.
Attempting to define violence is difficult. Definitions Of violence by professional experts Such as lawyers, police, phychatrists often either fail to recognise or trivialise behaviour that many women experience as violent. Women themselves are much broader in their definitions, they take into account a wide range of behaviours, including the fear of the threat of violence and the way this forces or constrains them to moderate their behaviour and act in cer
tain ways. V many forms inc Sexual, pSych and economic from tradition violence such a or cause injury person or prc Cludes aspects Volve physical i Violence Or dire
DO mesti C ViO the mOSt COr violence again lence against men exercisec for centuries.
Of men has bi in the precepts losophy and the World. Th have been a
Some instanc be still prevela violence agai deemed nect "well being" of
AND THE LAW
iolence has its :luding physical, Ological, social Moving away a meanings of S physical force Or damage to a ) perty also inthat do not inor interpersonal eCt Violence.
2nce clearly is hmon form Of St WOman. VOwives is a right with impunity This perogative een articulated of religion, phiW throughout ere Seemed to belief and in }S Continue to ht that physical St Wives was SSary for the WOren.
In Sri Lanka the subject of violence against Women is treated with much frivolity. Seen as the weaker sex in Society Women have a long fight for rights that most men take for granted. Although we in Sri Lanka boast a high literacy rate among women the fact remains that many Women are not eCOnomcally independent. Hence they
turn to marriage as a means of support and survival. Ironically several Women unwillingly enter into abusive relationships. Until recently it was assumed that in Sri Lanka alcoholism was the main factor that Spurred men to abuse their wives. However a Survey Conducted by WIN states that only 18% of Sri Lankan Women who were victims of violence cited this as the main cause of their abuse. The primary causes for domestic violence are financial crisis, the failure to complete house
September, 1998 o Voice of Women o 23
hold chores, extented family situations, assumed neglect and sex related issues.
Domestic violence is not included in the penal code of Sri Lanka as a criminal offence. Ou Oting Dr. Radhika Coomaraswamy on domestic violence"The basic assumption is that what happens in the home is a private affair and the law should only intervene if it becomes a public nuisanceSuch as When a Woman screams hysterically through the night when her husband is beating her up, depriving her neighbours of sleep". TherefOre dOmeStiC Violen Ce Sti|| remains a "hidden issue" Where abused Women consider it a "private shame" due to the lack of social empathy and support in addition to the patriarcha norms Which allOW male dOminatİ On Over a W Oman'S OWn sexuality, Women hesitate to obtain redress. Marital rape is still not considered a Criminal Offence unless the Wife is judicially Seperated from the husband at the time of rape. Married woman has no protection against the violence of her husband. She is a pray to battery mental and physical abuse without a ray of hope of redress. Women victims of domestic violence are often reluctant to seek legal assistance. This is mainly due to social and cultural norms that frown upon breakup of marriage and very often women perceive that the underlying cause of violence lies with trauma,
According to a research conducted by Women in Need with 200 women from a mixed eth
nic low income nity 60% of thes victims of dom 42% Were beate
were pregnan these abused W
marital home C
lence againstth to this study ge
ing of Women their families a Self could be cause of dome
Rape is an off considered not against a pers society itself. F under the pen Lanka as Sexu between a ma without her
against her W following circur
a) With Ou even Where su his wife and is rated from the
b) With he it has been O threat or by while she was tention.
c) With CC has been obta when she wa mind or was in cation.
d) With he it has been obta pretences.
e) With Or Sent Where SI years of age woman is his v 12 years and
24 OVoice of Women O September, 1998
69 WO6e WEES |estic Violence -n up while they t and 38% of "Omen left their
ue to the vioem According nder Stereotypand men Within hd in society itlinked to the stic violence.
ence Which is only as a crime on but against Rape is defined a code of Sri al intercourse n and WOman Consent and ill under the ÎnStanCeS.
t her Consent ch a woman is judicially Sepa
Consent, when btained under ntimidation or in unlawful de
insent, when it lined at a time s of unsound a state of intoxi
r consent when ined underfalse
Withouther conhe is under 16 unless the Vife Who is Over is not judicially
Evidence of resistance such as physical injuries is no longer essential to prove that rape has been Committed. Punishment for rape is "rigorous imprisonment for a term not less that 7 years and not exceeding 20 years with a fine. For custodial rape, rape of a pregnant Woman, a mentally or physically disabled woman, of a woman under 18 years of age or gang rape, the imprisonment can be from 10 to 20 years with a fine. Incest is recognised as a criminal offence punishable With rigorous imprisonment of a term not less than 15
The enforcement of the law in relation to gender violence rests with the police authorities. It is not surprising that police personnel tend to view acts of violence against Women as un important. However a positive factor has emerged during the recent past with the establishment of Women's and children's units in some of the major police stations in the country.
The right to life the right to be free from violence and cruelty, the right to equality within the family are some of the fundamental rights that should be enjoyed by Women. In this COntext gender based violence is a violation of human rights. The need for the realisation of women's rights as human rights should be a recognised fact by everyone. Women themselves should be commited in creating public awareness in the existing disCriminatory laws and the gendered roles in society which deny women the right tO freedom from Violen Ce.
Muslim LaVV in Sri areas of Concern
Sri Lanka became a signatory to the Convention against Elimination of All Forms of Discrimination against Women (CEDAW) in 1981. The CEDAW which has been described as the definitive international legal instrument requiring respect for and observance of the human rights of women', imposes an obligation on States Parties to take all appropriate measures to eliminate discrimination against women. The government also pledged to work towards eliminating all forms of gender inequality, in the Women's Charter of 1993. The Charter reiterates the principles of the CEDAW, while recognizing and addressing the spe
of Muslim Wome old, highly patriar of society and th CEDAW and the is to have any me living under Mus now required is a view and revision the light of stand these 2 document
Muslim Law in bodied in the Mus Divorce Act N
But the Act is not
cific needs and situations of women in Sri Lanka'. But the Personal Laws in Sri Lanka, i.e. the Kandyan Law, the Thesevalami and the Muslim Law contain elements which are discriminatory towards women and which cannot be reconciled with principles of justice and equity. Muslim Law particularly continues to define the role and responsibility
exhaustive and c actment. Where lent recourse mu lim Law ofthese ties belong. The lims in Sri Lanka sect (that is the indeed the substa the Act embody law. Where a pe
1 according to age chal constructions e family. If the Women's Charter aning for women lim Law, what is :omprehensive reof these laws, in ards laid down in
s of Concern
Sri Lanka is emslim Marriage and
o. 13 of 1951.
intended to be an
omprehensive enever the Act is siust be to the Musctto whichthe par2 majority of Musbelong to the shafi popular belief) and intive provisions of principles of shafi irson claims to be
long to a different sect, he/she will be governed by the law of that sect. Thus in cases involving hanafis, the courts have applied hanafi law.
The Muslim law in Sri Lanka is administered in special courts known as Quazi Courts. Appeal from the decision of quazilies to the Board of Quazis situated in Colombo and thereafter to the court of Appeal and the Supreme Court.
This article will highlight some critical areas of the Muslim Law, which must be considered in implementing the CEDAW and the Charter.
Muslim law recognises the right of a man to marry up to four wives. A Muslim woman however, can only take one husband at a time. Thus the practise of polygamy in Muslim law is inherently unequal. Apart from this inherent discriminatory character, the Sri Lankan legal provisions do not even embody the limitations on polygamy as laid down in the Quran.
The Act of 1951 merely requires that a husband wishing to marry a 2nd, 3rd or 4th time, give notice of his intention to do so the Quazi. Unless notice is given the marriage cannot be registered. Sec. 24 (1) - (4)]. There is no need for him to obtain the consent of his wife/wives or inform her/them of the impending marriage. The statutory provisions are seen by Muslim women as a licence to enter into polygamous
September, 1998 o Voice of Women o 25
unions, without the limitations envisaged by the Quran.
The Quranic injunction relating to polygamy is that a man may take a 2nd, 3rd, or 4th wife, if he can treat them equally in every respect. On the basis of this principle some contemporary codes require a court to assess the husband's capacity to treat the wives equally, and the necessity of taking a subsequent wife. Tunisia completely prohibited polygamy in the 1950's, on the basis that it is not possible to treat 2 or more wives equally under modern conditions.
Consent of Bride
Traditionally the marriage of , a Muslim girl in Sri Lanka is arranged by the male members of the family, and she is expected to consent to the arrangement without demur. The MMDA Act enacts that a marriage of a woman belonging to the shafi sect is not valid unless the walion her behalf communicates her consent to the marriage Sec. 25 (l) (a) (ii)). The Act does not however, provide for a mechanism to ensure that her consent is in fact obtained.
A shafibride does'not sign the declaration which is made prior to the registration of the marriage, except when her wali is someone other than her father. Nor is there provision requiring her to sign the marriage register. Thus there is no record of the fact that she has consented to the marriage and it is quite possible and even probable that marriages are registered against the wishes of the bride.
Consent of Wali
Although case law in Sri Lanka has recognised that under hanafi law, a female who has reached the age of puberty can enter into marriage without the intervention of a wali
or marriage guarc (1)(a) of the M Woman cannot marriage withol her wali. He is
ther and in his nal ascendant o1 rule applies irr age of the bride a
independent shal needs the consen before she can er The wali's consent with only if it can it is being withhe Sec. 25 (l) (b)).
The concept of a ian for all ages is and inconsistent choose a spouse a riage with free ar
The grounds procedure foi a divorce
As far as the gro are concerned, th Sri Lanka is mor general law and r on the mutual col ties - mubarat. mutual consent, t greater right of wife.
A husband can ul ate the marital tie mentoftalaq, with son forso doing. T a procedure for th oftalaq whereby d fective only 3 mo nouncementoftal period the Quasi
try to effecta reco the parties. Sec.
the 2nd Schedule provisions are no lowed. In fact, tripletalaq iswi recognised as vali
26 oVoice of Womeno September, 1998
an, under Sec. 25 MIDA Act a shafi ontract a valid it the consent of generally the faIbsence a patercollateral. The spective of the nd even an adult
iMuslim woman t of her guardian ter into wedlock. may be dispensed be established that ld unreasonably.
marriage guardan anachronism,
with a right to ind enter into mard full consent.
and the r obtaining
unds of divorce e Muslim law in e liberal than the ecognize divorce nsent ofboth parin the absence of he husband has a divorce than the
bilaterally repudiby the pronounceput giving any reahe Act lays down e pronouncement vorcebecomes efnths after the proaq. In the interim s under a duty to ciliation between 27& Rules 1-9 of
In practice these t stringently fol
it appears that ely practised and by Quazi Courts.
A Muslim wife can obtain a divorce on the ground of an actor omission amounting to fault or ill treatment on the part of the husband - fasah. Sec. 28 (l). She can also obtain a divorce on any other ground recognised by Muslim law under sec. 28 (2) of the MMDA Act. Under this section, the courts have recognised that a wife may obtain a divorce with the consent of her husband by forfeiting her dowry or some other property - khula. In order to obtain a fasah divorce, the wive's evidence of fault must be corroborated by 2 witnesses. In order to obtain a khula divorce there must be evidence of breakdown of marriage and consent of the husband. In both fasah and khula, efforts at
reconciliation by the Quazi is im
perative for the validity of the divorce. Thus it is much more difficult for a woman under Muslim law to obtain a divorce than it is for a
Maintenance after divorce
On divorce, a woman is entitled to maintenance during the period of iddat. i.e. for a limited period of 3 months and if she is pregnant at the time, till the child is born. Sec. 47 (l) (d). During iddat, she is entitled to support in the same scale as during the subsistence of the marriage. On divorce, she has also a claim to the mahr and kaikuli, proyided it has not been already claimed.
Given new trends in other countries, which recognise that a divorced woman is entitled to an equitable share of the marital property. i.e. all the property acquired during the marriage irrespective of the fact that the husband is the sole wage earner and that a woman has to be compensated for her unpaid labour as mother and home maker, divorce settlements under Muslim law may
not adequately compensate a Woman on divorce. The Islamic law concept of matah or compensation on divorce, is not part of the law in Sri Lanka. In other countries matah has proved to be a useful mechanism, which ensures that women receive a just and equitable settlement on divorce.
Minimum age of marriage
Muslim law does not specify a minimum age of marriage, and the concept of wilayat aljabr or marriage guardianship gives the guardian the right to give a minor child in marriage. This right is subject to two limitations. A minor girl given in marriage has the option of repudiating the marital tie, when she attains the age of puberty, if she can prove that the marriage is not in her interest and a minor girl given in marriage cannot be delivered to her husband until she attains the age of puberty. (Although this is cited as an important limitation on the right of jabr, the earliest age for the attainment of puberty is 9 years. In the absence of evidence minority terminates at the age 15.)
Under hanafi law, a girl can enter into marriage on her own when she attains puberty.
The Act of 1951 in an attempt to discourage child marriages provided that a marriage of a Muslim girl below the age of 12 will not be registered unless it is authorized by the Quazi, after an inquiry. However, registration is not compulsory under the law and child marriages can well be solemnized in disregard of this provision.
The health and Socio-economic implications for women of early age at marriage is well documented. The younger the mother, the higher
the incidence of cl plications at deliv. ers also risk low bies with chromo Downs Syndrome also mean that sh tunities to obtain education and to
The incidence of Sri Lanka are qu average age of
Muslim women i. of age. Howeve typically Muslim Soyza records tha riage ranged frc also states tha child mortality, ( pregnancy and
highest in the
Muslim Distric Ampara and Ma
The Act provide for the registratio riages on the co Nikah ceremony. ing the marriage 1 imposed on the wali and the pers the nikah cerem cause the marriag is an offense pu Sec. 17). Howe tion does not rer invalid, so longa according to cust 16
AS is the case u Law, registration sory legal requir lidity of a Musli acceptance of u riages creates pi and prevents ther curate records. F tration has other cations for wome
lild loss and comery. Young mothbirth weight basol disorders like '. Early marriage loses her opporhigher levels of acquire skills for ting purposes.
hild marriages in lite low, and the marriage among s around 19 years r, in a study of a village, Priyani t the age of marom 12-26. She t maternal and omplications of child birth are predominantly ts of Batticaloa,
s for a procedure n of Muslim maronclusion of the
A duty of causo be registered is bridegroom, the on who conducts lony. Failure to ge to be registered nishable by law. ver, non registrader the marriage s it is solemnized omary rites. Sec.
nder the General is not a compulement for the vam marriage. The nregistered maroblems of proof maintenance ofacSuthermore regis
important impliin and children. It
is a point at which the State can control and prevent dicriminatory practices by enforcing requirements of minimum age of marriage, consent, etc. Registration will also ensure women's right to maintenance, inheritance and other rights following marriage.
The recognition of customary marriages are justified in countries
where literacy is low and people are unaware of the need to register, or
where people don't have access to registrars or the means to do so. Whether such marriages need to be recognised in Sri Lanka is a debatable point.
Composition of Quazi Courts
The office of Quazi in Sri Lanka is statutorily limited to "male Muslims of good charactor and position and of suitable attainment". Sec. 12 (1)). The section embodies the shafi rule that "a judge or a quazi must be a Moslem, adult, sane, free, male of irreproachable character, sound of hearing, sight and speech, educated and enjoying a certain degree of authority in matters of law".
The Quran and the Sunna are however silent on the subject, and Muslim women's rights activists maintain that there is no prohibition in the sharia against women holding office as quazis or judges. The Muslim Women's Research and Action Forum made a strong plea for the amendment of sec. 12 (1) before the Muslim Law Reform Committee of 1990. The Committee felt that the question of whether any law of the shafi mazhab can be altered or modified is a matter for competent jurists' and recommended that a fatwa be obtained from a body of jurists in Sri Lanka or abroad.
September, 1998 to Voice of Women o 27
A Muslim woman is a femme sole, capable of acquiring, holding and entering into legal transactions in respect of her own property, independent of her husband. Ameer Ali states that "(s)he acts, if sui juris, in all matters which relate to herself and to her own property, in her own individual right, without the intervention of husbandorfather. She appoints her own attorney, and delegates to him all the powers she herselfpossesses. She enters into valid contracts with her husband and her male relations, on a footing of
Her ante-nuptial settlement is her own by absolute right, and she can deal with it according to her own will and pleasure. To become entitled to its enjoyment, she requires no intermediaries, trustees or next ofkin".
Although, a Muslim woman's independent status in relation to her property has been accepted, in principle, in Sri Lanka for over 150 years, two important property transactions concluded on the marriage of a Muslim woman cannot be reconciled with it. Both mahr and kaikuli, which are gifts for the benefit of the wife are transferred to the husband who is charged with the duty of controlling and managing such property, until it is demanded from him by the wife.
Kaikuli is defined as follows in
the Act :-
Any sum of money paid, or other movable property given, or any sum of money or any movable property promised to be paid or given to a bridegroom for the use of the bride, before or at the time of the marriage by a relative of the bride or by any other person'
Similarly, mahr hands of the husb, control and mana demanded by the since Islamic la woman's property need to create the
A Muslim can property accordi will and pleasure sions of the Will 21 of 1844. In th lim who dies intes erty devolves acco lim law of intestat erning the sect to belongs. The Isl. cession is quite c. ficient to say tha inherit equally W shafi law, womer men inherit, and c of what sons get.
I have returnec The house of r wished me by divided with between mysel like a chocolat We'd Share in
I Wander throu its many doors With friends wi lts previous liv with my daugh Emerge from it Watch her stan built on years
"A queen ant li and Wonder ho It Would Still h before break
28 O Voice of Women o September, 1998
remains in the ind and under his gement, until it is wife'. However, W recognises a rights, there is no device of a trust.
dispose of his g to his/her own under the provis Ordinance No. e case of a Musate, his/her proprding to the Muse succession goVwhich the party amic law of sucpmplicated. Suft women do not ith men. Under inherit of what laughters get half
What space is there for the reform of Muslim Law in Sri Lanka?. The communalisation of the Sri Lankan polity and the rise of ethnic or more correctly religious consciousness among Muslims mean that Muslim identity in Sri Lanka will hinge more and more on their Personal Law. Take for example a recent case in point. In September 1995, the minimum age of marriage under the General Law and Kandyan Law was raised to 18 years, for both males and females. No corresponding change was made in the Muslim Law due to strong resistance by the Muslim Lobby. Muslim Law does not specify a minimum age of marriage, and child marriages are possible under the law. The prospects for future reform does not therefore look promising.
with many Doors
Once more to
my childhood my father my mother
f and two brothers
ter watch the White ants
hp out their houses of solitude, Saying ives a hundred years"
w much longer
"A man who is alleged to have committed gross released on bail while the child's mother has been suspect in outrage.
In this shocking case with its strange twist of ju suspect in court on an allegation that he committed wife's sister's daughter.
The suspect had allegedly taken the girl in his van had tried to rape the girl but failed, the girl's moth
The girl's mother said that when she saw what the st a frenzy and thrown hot water on him.
The police then arrived, arrested the suspect and pr (b) which is generally interpreted as a non-bailab twenty years with a heavy fine.
The Dehiwela Police asked that the suspect be rem and as this offence was non-bailable. But the mag tions by the police and the lawyer who appeared fo
The nightmare did not end there. The next day, ti saying the suspect would destroy them. She then threats but a horrible shock awaited her there.
Instead of getting relief protection from the threats. the suspect.
Worse was to follow. She was produced before a hurt under the Penal Code section 316 which is ab
But the police moved that the mother be remande custody of her sister who is the wife of the alleged c for employment. The Sunday Times learns one of mother of the child victim was that it was done fol
Prof. Savithri Goonasekera who headed a committ punish the abusers of innocent children said that e given to judges to suspend the sentence. Some Ju tered judicial discretion to decide on the sentence
(Read editorial Justice)
sexual abuse on a seven year old child has been remanded for allegedly throwing hot water on the
stice, the Dehiwela police had first produced the an act of gross sexual abuse on the child who is his
and got her to commit oral sex. Later the suspect rtold police.
spect had tried to do to her child, she had gone into
oduced in court under the Penal Code's section 365 le offence and punishable with a jail term of upto
landed till Tuesday as inquiries were not complete gistrate released the suspect on bail despite objecor the mother.
he mother received a number of threatening calls, went to the Dehiwela police to complain about the
, the mother was arrested for throwing hot water on
Magistrate for committing an offence of grievous ailable offence.
i for 14 days. So she was, leaving the child in the 'hild abuser since the child's father has gone abroad the reasons given by the magistrate to remand the her own protection.
ee which drafted amendments to the Penal Code to very rapist should be sent to jail with no discretion dges were of the view that they should have unfet." - The Sunday Times - 15th November 1998
September, 1998 o Voice of Women o 29
The following is a summary of the Judgement passed by the Suprem 1997 prepared by Sakshi (New De
Sexual Harrassment Guidelines
In view of the increase of cases reported on sexu India, on a writ filed by women's NGO's has laid places of work, and at other institutions includir bodies. In the absence of any legislation, the Col binding and enforceable. With respect to employ ment, public and private sector, and cover Women volunteers. The court has directed all employers other institutions to ensure the prevention of sex dures for resolution, settlement and prosecution Supreme Court has brought sexual harassment V
Definition : Sexual harassment is unwelcome Sex tion, and includes: Physial contact and advances, coloured remarks, showing pornography, any oth duct of Sexual nature.
Acts of sexual harrassment can be humiliating, constitute a health and safety problem for wome ensure that a Woman objecting to harassment is and promotion.
Prevention . In order to prevent the occurrence O ployers and persons incharge of the Workplace tc
(a) Express prohibition of sexual harassment notified, published and circulated in apprc
(b) The rules / regulations of Government anc discipline should include rules / regulation appropriate penalties in such rules agains
(C) AS regards private employers steps shoul the standing orders under the Industri
(d) Appropriate work conditions should be pro gjene to further ensure that is no hostile er employee women should have reasonable connection with her employment.
30 O Voice of Women O September, 1998
e Sexual Harassment Guidelines he Court of India on August 13, elhi):
all harassment of women, the Supreme Court of down guidelines to obviate such harassment at ng universities, hospitals and other professional urt has held that these guidelines shall be legally ment, the guidelines are applicable to the governdrawing a salary or an honorarium or working as and other responsible persons in Workplace and ual harassment of Women and to provide proceof acts sexual harassment. Most significant, the within the purview of human rights violation.
ually determined behaviour, direct or by implicaa demand or request for Sexual favours, Sexually er unwelcome physical, verbal or non-verbal con
can create a hostile work environment and may in. Employers and responsible persons need to not disadvantaged in respect to her employment
f Sexual harassment, the Court has directed em
take the follwing steps -
as defined above at the work place should be opriate WayS.
Public Sector bodies relating to conduct and s prohibiting sexual harassment and provide for t the Offender.
d be taken to include the aforesaid prohibitions in al Employment (Standing Orders) Act, 1946.
vided in respect of work, leisure, health and hynvironment towards women at work places and no a grounds to believe that she is disadvantaged in
Employers are expeted to set up within their org The Court had recommended provision for a com support services for handling complaints. With r have been laid down.
The Committee is to be headed by a woman. A women. To prevent undue pressure from within third party representative from an NGO or any ot rassment. The complaint should be handled conf committee is required to submit an annual reportt ing compliance with the aforesaid guidelines.
Disciplinary Action :
Where Such Conduct amounts to misconduct in rules, appropriate disciplinary action should be ir rules.
Other Provisions :
In addition to preventive and remedial measures, ness - raising in the Workplace :
Employers should be allowed to raise issues of other appropriate forums. Sexual harassment sh ployee meetings. The guidelines stressing the notified. Criminal Law In addition to the above the Criminal law remedies.
a) Where such conduct amounts to a specif
any other law, the employer shall initiate ing a complaint with the appropriate auth
In particular, the employer should ensure that vi nated against while dealing with complaints of s ment should have the option to seek transfer of
Where sexual harassment occurs as a result of a employer and person in charge will take all step. person in terms of support and preventive action
These guidelines are binding and enforceable i appropriate legislation.
anisation an appropriate complaints mechanism. plaints committee, a special counseller and other aspect to the committee, the following guidelines
least half of the Committee members should be the organisation, the committee should include a her body conversant with the issue of sexual hadentially and within a time bound framework. The o the concerned Government Department regard
employment as defined by the relevant service litiated by the employer in accordance with those
the Court has also stressed the need for aware
sexual harassment at workers' meetings and in hould be affirmatively discussed in employer-emrights of women workers must be prominently Court has also addressed Sexual harassment and
ic offence under the Indian Penal Code or under appropriate action in accordance with law by makority.
ctims, or witnesses are not victimized or discrimiexual harassment. The victims of Sexual harasshe perpetrator or their own transfer.
n act or omission by any third party or outsider, the S necessary and reasonable to assist the affected
n law until such time as the Government passes
31 O Voice of Women O September, 1998
Asian NGOs' Statement Criminal Court
April 27, 1998
Noting that the Waging of armed conflict and the Commission of genocide, Crimes against humanity serious war crimes throughout the world has COntinued in Our times, at a tragic and horrific cost to human life;
Noting that national legal systems have historically failed to prosecute the perpetrators of international Crimes, and that in Asia, victims of such abuses have no further recourse to a regional human rights forum;
Noting that the United Nations General Assembly, in Resolution 51/207, has called for a diplo— matic Conference of plenipotentiaries, which will COnvene in Rome from 15 June to 17 July 1998 to finalize and adopt a treaty to establish the International Criminal Court (ICC);
Noting the strong international support for the establishment of an international Criminal Court, as expressed by both governments and non-govermental Organisations in, inter alia, the statement of the Southern African Development Community (11-14 September 1997), the Atlanta (USA) Declaration. On the International Criminal Court (13 NOVember 1997) , the Dakar (Senegal) Governmental Declaration on the Establishment of the ICC (6 February 1998), the Declaration of the NGO International Forum in Dakar (Senegal) (4 February 1998), the European Parliament Resolution on the International Criminal Court (12
A number of non-governmental Organisations in the Asia-Pacific hereby;
Support the early establishment of an effective and impartial International Criminal Court, recognising the importance of such a Court to end impunity for egregious violations of international law, to enhance the enforcement of human rights, to encourage national COurts to adhere to the standards of international law, to provide justice for victims, and to deter the commission of future international crimes;
Support the principle of complementarity for the International Criminal Court, understanding that national COurts have the primary responsibility of bringing perpetrators to justice and that the Court should exercise jurisdiction only when it has determined that national judicial systems have been ineffective or unavailable;
September, 1998 o Voice of Women o 32
on the International
Support the Court's inherent jurisdiction Over the three "COre" Crimes of genocide, Crimes against humanity and serious war Crimes based On the existing universal jurisdiction over these Crimes as Currently recognised under international law and reject the requirement of further consent by states to the Court's jurisdiction;
Support the Creation of an independent prosecutor, allowing her / him to initiate investigations based on information from any source, including individuals and non-government organisations;
Support the Court's authority to make binding requests for COOperation and enforcement upon states parties, recognising that in Order to ensure full and fair prosecution, state Compliance with the Court's decisions, after an opportunity for challenge should be a legal obligation;
Call for the definition of Crimes to reflect the progressive development of international law by including Violations Committed in internal armed COnflict and Crimes of sexual and gender Violence within the definitions of war crimes and Crimes against humanity, and removing the requirement of armed conflict from the definition of Crimes against human
Recognise the right of Victims and their representatives to reparations (including restitution, Compensation, and rehabilitation) under international law and urge the International Criminal Court to establish mechanisms for providing reparations;
Urge governments in Asia to play more active and supportive role in the establishment of an International Criminal Court, by fostering public awareness Of the ICC, and sending delegations to the Rome Conference and including human rights experts in such delegations;
Oppose giving states the right to make reservations to the Court's statute, Since reservations WOuld undermine the moral authority and legal force of the statute and weaken the legal Obligations of the state
A Sri Lankan Journa
A SEPTEMBER 1998 A WOL 5 A ISSUE
Ghastly Ellaw in til
The LOW's On OSS, there is no doubt, From every roof-top lef US shout The mother of age Seven child Who found her child had been defiled By on Uncle who took in his Von The innocent to rope did plan, But failing, forced to Oro Sex A decent human beings to VeX
|n frenzy threw Some Water hot Upon the SUSpect. On the Spot Was charged and remonded to oil The SUSpect being enlarged On boil.
The victim's father is abrood And she perforce Chopless word Of Aunt the Very SUSpect's wife, By Ostronge quirk of Cruel life. if such occurs within the low, Revise with Speed the ghostly flow.
Mervyn Casie Chetty Courtesy Sunday Times 29
I for Women's Liberation
A ISSN 1319 - O906 A RS 20/=