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Law and marriage

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‘Law is Light’ is a series of trilingual legal discussions to shed light on the law. The Latin maxim ‘ignorantia legis neminem excusat’ translates to ignorance of the law is not an excuse. The Pro Bono Committee of the Law Students’ Association of Sri Lanka strives to educate the general public by simplifying the laws in our country. In the sixth discussion, the programme focused on ‘Laws on Marriage’ to provide an understanding of the rights and duties of individuals.

The discussion featured Attorney-at-Law Nisal Kohona, the Chairman of Veritas Academia

1. What is marriage according to law? What are the laws pertaining to different marriages. Marriage is a contract made in conjunction with the law, where a free man and a free woman reciprocally engage to live in the union that exists between husband and wife.The Sri Lankan General Law of marriage has been considerably influenced by Roman Dutch Law (RDL) and the English law. The Marriage Registration Ordinance (MRO) no.19 of 1907 states the laws pertaining to marriage under general law. The Ordinance applies to marriages between individuals of different ethnic and religious communities. Kandyan Sinhalese may choose to be governed by the General Law or Kandyan Law. The ordinance does not govern marriages contracted between Muslims as the provisions of MRO do not apply.

2. What are the types of valid marriage? Registered marriage: In terms of General Law (MRO) any party other than citizens who follow the Muslim faith can enter into a marriage under this ordinance as stated in the preamble.The Registrar shall follow the steps stated in terms of S.23 to S.36 of the MRO. The issuance of the certificate of marriage is given in Section 26 of the MRO. Thereupon a marriage under MRO will be constituted as validSection 23 (1) – Must check if the parties have resided in Sri Lanka for ten days and one of the parties may give notice to the registrar of the division in which they have dwelt.S. 23 (2) – If not within the same division, must give notice to the registrarS.23 (3) – If one party is not residing in SL, the other party must give noticeS.23 (4) – If neither party is a resident of SL, notice shall be given and such party must reside in Sri Lanka for not less than four days prior to the marriage.

S.25 – After receiving such notices, the registrar shall enter the details in the ‘marriage notice book’ and such is considered to be publication of the notice and then the registrar shall issue the certificate of marriage in terms of Section 26.Customary marriages: The courts have recognized customary marriages contracted according to customary rites and practices. If all the essentials of the customary marriage are in conformity it is possible to contract a valid marriage outside the purview of the statute.

3. Is registering the marriage a vital requirement?Registration of marriage is not mandatory under the ordinance. An entry made in the marriage register is the best evidence of the marriage. The courts do consider the information submitted in the registrar book (S. 41 of the Marriage Registration Ordinance).The law recognizes a rebuttable presumption of marriage by habit and repute (cohabitation). Customary marriages, including those of various ethnicities and the rites and rituals they follow, have been accepted as valid despite the fact that they are unregistered.

4. Who can contract a marriage in terms of age, capacity, prohibited degrees of relationship?In terms of Section 15, prior to 1995, for males it was 16 years and for females it was 12 years. However after the amendment act no.18 of 1995, both parties must have completed 18 years. This was affirmed in the case of (Thiyagarajah V Kurukkal (1923) 25 NLR 69). In this case the girl was 11 years and one month when she entered into marriage. The courts held the marriage null and void. (Gunaratnam V Registrar General)S.16 deals with the prohibited degree of marriage in the following situations:a. Where either party is a direct descendent of the otherb. between a sister and a brother (Either half blood or full blood)c. between parents and their step childrenS.18 states that, no marriage is valid where either party has contracted a prior marriage until it has been legally dissolved or declared void. This was affirmed in the case of Hettiarachchi V Hettiarachchi and others (2004) 3 SLR 116.S.17 of MRO states that any marriage or cohabitation between parties standing towards each other in any of the prohibited degree of relationships, shall be deemed to be an offence, and shall be punishable with imprisonment, simple or rigorous, for any period not exceeding one year.

5. What is cohabitation?This is an instance where two parties have been living together as husband and wife and have been recognised as a married couple by their relatives and friends. It is merely based on a presumption until such has been rebutted. Habit refers to the parties living together as husband and wife for a period of time. Repute refers to their acceptance by the society as a married couple. When a man and woman have lived together as husband and wife, the law will presume unless and until the contrary is proved that they were living together in consequence of marriage and not in a state of concubinage.It must be noted that cohabitation by repute and habit is based on a mere presumption and the simple justification that they are living together does not create a valid marriage. (Requires further indication that they lived as a couple). The burden of rebutting the presumption rests on the person who alleges that there was no lawful marriage and they exist as concubines. In Fernando V Dabarera both the parties cohabiting were dead and there was a need to see if such parties were married as there was no evidence of registration of their marriage. The only evidence that existed was the evidence of how they treated each other. Court held marriage by habit and repute could be recognised by law.

The presumption of habit and repute cannot be raised in the case of Kandyan parties. The Kandyan Marriage and Divorce (Amendment) Act (KMDA) specifically states that registration is compulsory under such act and that a marriage which is not registered either under MRO or KMDA is void.

6. What is customary marriage?A customary marriage is a marriage contracted according to traditional custom and recognised by customs of such country. There are no specific legal provisions stated in the MRO as they are mostly recognized by case law. Customary marriages can be conducted according to the rituals usually followed by those of same ethnicities, religion or area.Customary marriages are governed by the customary laws established in Sri Lanka, the KMDA for Kandyans, Muslim Marriage and Divorce Act (MMDA) for Mulism and Tesawalami for Jaffna Tamils. Any other ethnicities can enter into a marriage under the MRO.

7. What are the different marriage laws in Sri Lanka? There are customary laws wherein any party who falls within the ambit or scope of such act, can either enter into a marriage under such customary law which then will be governed pertaining to the custom or if not such party can enter into a marriage under the General Law of MRO.An example is where the KMDA allows any party who falls within the ambit of such act, to register under the MRO as well, but a marriage cannot be valid until such marriage is registered.

8. Can a person choose which law to be married under?

Of course, if the customary act allows any such person who is a follower of such faith to be married and registered under any laws other than such customary laws, then they can do so.There can be instances where the other party entering into a marriage might not fall within the scope of such customary law. Therefore, a need arises for the freedom to select under which law one should register one’s marriage.

Kandyan marriage

1. Pertaining to Kandyan marriage laws, do both individuals have to be Kandyan?The KMDA applies to Kandyan marriages and divorces as stated in the preamble. It allows any Kandyan who was a resident of the Kandyan province, as at 1850, to enter into a marriage under this law, or any person who is a descendent of the said category. Therefore it is important that both parties are deemed Kandyans in order for the KMDA to apply. However, leeway has been given to parties to register their marriage under the KMDA or the MRO.

2. Is registration compulsory for Kandyan?In terms of Section 3 (1) (a), it states that a marriage between persons subject to Kandyan Law, shall be solemnized and registered under this act or under the MRO and Section 3 (1) (b) states that any such marriage which is not so solemnized and registered shall be invalid.Therefore registration is compulsory if either party is entering into a marriage under the KMDA. However, even a Kandyan can still fall within the ambit of the KMDA although registered under the MRO as the KMDA allows such registration.

3. Is one woman marrying more than one man still in practice under Kandyan Law?Kandyan law does not recognize polygamy and polyandry. This will amount to bigamy just as in ordinary law and will amount to a criminal offence.

4. Can a Kandyan opt out of the Kandyan Marriage Act and marry under General Law?

Yes, they can register themselves under the MRO and the marriage will be governed by laws pertaining to marriage and divorce under the MRO.

(Compile y Zeenath Zakir Pro bono Secretary 2020-2021

The complete discussion is available on YouTube channel ‘Law Students Association of Sri Lanka’, in all three languages. The laws are subject to change with future developments by the legislature.)



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Features

Rising farce of Family Power

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Former President Maithripala Sirisena has struck hard on warnings of being deprived of Civil Rights by President Gotabhaya Rajapaksa.

In his recent statement, President Gotabaya was clear on observing the policies laid down in his Saubhagya Dekma manifesto. He recalled how the Yahapalana government had given no importance to the war heroes, intelligence services, and national security, which led to the Easter Carnage.

He was very clear that having a two-thirds majority in Parliament, this government is ready to respond to the false propaganda of the Opposition, and provide a meal free of poison to the people.

He said the Presidential Commission appointed by Yahapalana has stated very clearly who was responsible for the Easter Carnage. This included the then President, Prime Minister and the entire Cabinet of that time.

“We leave all legal action on this to be taken by the judiciary. We have trust in the judiciary and will allow justice to take place, All the PCoI reports have been submitted to Parliament. We will not poke our fingers into the judicial system. While maintaining the freedom of the judiciary, it is not possible to ask that some persons be brought to justice, and others punished,

 “If they want this action to be taken very soon, we can bring a Bill to Parliament (as done before) and remove all the rights of those responsible, so that they will not do such faults again.  If they want this, we are ready for it, as we have a two-thirds majority power. When asking for various things, they should do it with care. We are ready for this too. The people should not be fooled.

“If I am not good, and we are not good, is the alternative to this the Opposition? We have seen how they ruled for five years. That is why I was elected, although it was told that I would not get the votes of the minorities. But we won. Will they be able to reduce the Cabinet to 25?”

Mr. Sirisena’s response in parliament was to this claim of two-thirds strength.  In the midst of a major clash with government ministers, he made it clear that the government’s two-thirds power was due to the presence of the SLFP in the ruling coalition.

It certainly was a shake up to the show of two-thirds strength and power by President Gotabaya.

While President Gotabaya was clear on his following the findings of the PCoI, and stressed the call for action against Mr. Sirisena, there was total silence on the other recommendations of the Commission. The supporters who cheered him, raised no question about what the PCoI had recommended on Galagoda Aththe Gnanasara Thero and the Bodu Bala Sena led by him.

Was it in keeping with the PCoI that Gnanasara Thero has been appointed to head a Task Force on One Country, One Law?  Is this One Law part of the new Gotabaya thinking on Green Agriculture?

What has emerged with the Sirisena response to the Gotabhaya challenge is the emerging reality of the Podujana Peramuna – SLPP politics. The New Kelani Bridge, which was opened, when Gotabaya made his strong speech, had to be kept closed the very next day, showing the rising confusion in Podujana Governance,

The warning given by experts about the situation relating to the LP gas cylinders, is driving a huge new scare among the public. If there are a few more gas cylinder explosions, there could be mass gas protests, even angrier that the farmer protests on the fertilizer disaster.

The Podujana government is certainly in a crisis of governance.  There are turn-arounds on many of its policies from Neo-Nitrogen fertiliser –  from cost to its benefit for Sri Lankan cultivation, and the payment to contaminated Chinese fertiliser. The turn back on the use of chemical fertilisers will also bring a huge new price to the cultivators, leading to another round of protests?

The Gotabaya Keliya is fast doing turns and twists on policies of the government. The Rajapaksas are being surrounded by faults and failures. It will certainly not be easy him to

use two-thirds power, when the reality is the rising farce of family power.

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A tribute to vajira

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By Uditha Devapriya

The female dancer’s form figures prominently in Sinhalese art and sculpture. Among the ruins of the Lankatilake Viharaya in Polonnaruwa is a series of carvings of dwarves, beasts, and performers. They surround a decapitated image of a standing Buddha, secular figures dotting a sacred space. Similar figures of dancing women adorn the entrance at the Varaka Valandu Viharaya in Ridigama, adjoining the Ridi Vihare. Offering a contrast with carvings of men sporting swords and spears, they entrance the eye immediately.

A motif of medieval Sinhalese art, these were influenced by hordes of dancers that adorned the walls of South Indian temples. They attest to the role that Sinhala society gave women, a role that diminished with time, so much so that by the 20th century, Sinhalese women had been banned from wearing the ves thattuwa. Held back for long, many of these women now began to rebel. They would soon pave the way for the transformation of an art.

In January 2020 the government of India chose to award the Padma Shri to two Sri Lankan women. This was done in recognition not just of their contribution to their fields, but also their efforts at strengthening ties between the two countries. A few weeks ago, in the midst of a raging pandemic, these awards were finally conferred on their recipients.

One of them, Professor Indra Dissanayake, had passed away in 2019. Her daughter received the honour in her name in India. The other, Vajira Chitrasena, remains very much alive, and as active. She received her award at a ceremony at the Indian High Commission in Colombo. Modest as it may have been, the conferment seals her place in the country, situating her in its cultural landscape as one of our finest exponents of dance.

Vajira Chitrasena was far from the first woman to take up traditional dance in Sri Lanka. But she was the first to turn it into a full time, lifelong profession, absorbing the wellsprings of its past, transcending gender and class barriers, and taking it to the young. Dancing did not really come to her; it was the other way around. Immersing herself in the art, she entered it at a time when the medium had been, and was being, transformed the world over: by 1921, the year her husband was born, Isadora Duncan and Ruth St Denis had pioneered and laid the foundation for the modernisation of the medium. Their project would be continued by Martha Graham, for whom Vajira would perform decades later.

In Sri Lanka traditional dance had long turned away from its ritualistic past, moving into the stage and later the school and the university. Standing in the midst of these developments, Vajira Chitrasena found herself questioning and reshaping tradition. It was a role for which history had ordained her, a role she threw herself into only too willingly.

In dance as in other art forms, the balance between tradition and modernity is hard, if not impossible, to maintain. Associated initially with an agrarian society, traditional dance in Sri Lanka evolved into an object of secular performance. Under colonial rule, the patronage of officials, indeed even of governors themselves, helped free it from the stranglehold of the past, giving it a new lease of life that would later enable what Susan Reed in her account of dance in Sri Lanka calls the bureaucratisation of the arts. This is a phenomenon that Sarath Amunugama explores in his work on the kohomba kankariya as well.

Yet this did not entail a complete break from the past: then as now, in Sri Lanka as in India, dancing calls for the revival of conventions: the namaskaraya, the adherence to Buddhist tenets, and the contemplation of mystical beauty. It was in such a twilight world that Vajira Chitrasena and her colleagues found themselves in. Faced with the task of salvaging a dying art, they breathed new life to it by learning it, preserving it, and reforming it.

Though neither Vajira nor her husband belonged to the colonial elite, it was the colonial elite who began approaching traditional art forms with a zest and vigour that determined their trajectory after independence. Bringing together patrons, teachers, students, and scholars of dance, the elite forged friendships with tutors and performers, often becoming their students and sometimes becoming teachers themselves.

Newton Gunasinghe has observed how British officials found it expedient to patronise feudal elites, after a series of rebellions that threatened to bring down the colonial order. Yet even before this, such officials had patronised cultural practices that had once been the preserve of those elites. It was through this tenuous relationship between colonialism and cultural revival that Westernised low country elites moved away from conventional careers, like law and medicine, into the arduous task of reviving the past.

At first running into opposition from their paterfamilias, the scions of the elite eventually found their calling. “[I]n spite of their disappointment at my smashing their hopes of a brilliant legal and political career,” Charles Jacob Peiris, later to be known as Devar Surya Sena, wrote in his recollection of his parents’ reaction to a concert he had organised at the Royal College Hall in 1929, “they were proud of me that night.”

If the sons had to incur the wrath of their fathers, the daughters had to pay the bigger price. Yet, as with the sons, the daughters too possessed an agency that emboldened them to not just dance, but participate in rituals that had been restricted to males.

Both Miriam Pieris and Chandralekha Perera displeased traditional society when they donned the ves thattuwa, the sacred headdress that had for centuries been reserved for men. But for every critic, there were those who welcomed such developments, considering them essential to the flowering of the arts; none less than Martin Wickramasinghe, to give one example, viewed Chandralekha’s act positively, and commended her.

These developments sparked off a pivotal cultural renaissance across the country. Although up country women remain debarred from those developments, there is no doubt that the shattering of taboos in the low country helped keep the art of the dance alive, for tutors, students, and scholars. As Mirak Raheem has written in a piece to Groundviews, we are yet to appreciate the role female dancers of the early 20th century played in all this.

Vajira Chitrasena’s contribution went beyond that of the daughters of the colonial elite who dared to dance. While it would be wrong to consider their interest as a passing fad, a quirk, these women did not turn dance into a lifelong profession. Vajira did not just commit herself to the medium in a way they had not, she made it her goal to teach and reinterpret it, in line with methods and practices she developed for the Chitrasena Kala Ayathanaya.

As Mirak Raheem has pointed out in his tribute to her, she drew from her limited exposure to dance forms like classical ballet to design a curriculum that broke down the medium to “a series of exercises… that could be used to train dancers.” In doing so, she conceived some highly original works, including a set of children’s ballets, or lama mudra natya, a genre she pioneered in 1952 with Kumudini. Along the way she crisscrossed several roles, from dancer to choreographer to tutor, becoming more than just a performer.

As the head of the Chitrasena Dance Company, Vajira enjoys a reputation that history has not accorded to most other women of her standing. Perhaps her greatest contribution in this regard has been her ability to adapt masculine forms of dance to feminine sequences. She has been able to do this without radically altering their essence; that has arguably been felt the most in the realm of Kandyan dance, which caters to masculine (“tandava“) rather than feminine (“lasya“) moods. The lasya has been described by Marianne Nürnberger as a feminine form of up country dance. It was in productions like Nala Damayanthi that Vajira mastered this form; it epitomised a radical transformation of the art.

Sudesh Mantillake in an essay on the subject (“Masculinity in Kandyan Dance”) suggests that by treating them as impure, traditional artistes kept women away from udarata natum. That is why Algama Kiriganitha, who taught Chandralekha, taught her very little, since she was a woman. This is not to say that the gurunannses kept their knowledge back from those who came to learn from them, only that they taught them under strictures and conditions which revealed their reluctance to impart their knowledge to females.

That Vajira Chitrasena made her mark in these fields despite all obstructions is a tribute to her mettle and perseverance. Yet would we, as Mirak Raheem suggests in his very excellent essay, be doing her a disservice by just valorising her? Shouldn’t the object of a tribute be, not merely to praise her for transcending gender barriers, but more importantly to examine how she transcended them, and how difficult she found it to transcend them? We eulogise our women for breaking through the glass ceiling, without questioning how high that ceiling was in the first place. A more sober evaluation of Vajira Chitrasena would ask that question. But such an evaluation is yet to come out. One can only hope that it will, soon.

The writer can be reached at udakdev1@gmail.com

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It’s all about France in Kandy !

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Sarah Toucas, Director Alliance Francaise de Kandy

This month’s edition of Rendez-Vous with Yasmin and Kumar, on Tuesday 30 November at 7.00 pm on the YouTube channel of the Embassy of France in Sri Lanka and the Maldives, makes a journey to the hill capital Kandy to the Alliance Française de Kandy.

A venue of historical significance in central Sri Lanka which celebrates its 55th anniversary next year, the AF Kandy was once even located on the upper storey of the ancient Queen’s bath or the Ulpangé, just outside the Dalada Maligawa.

All about France and the French in Kandy, on the show will be the newly appointed director of the AF Kandy, Sara Toucas, who will talk about plans to further popularise the French language in Kandy.

Joining the show is also Dr. Kush Herat, former Director AF Kandy and visiting Senior Lecturer in French at University of Peradeniya, who talks about motivating undergraduates and inducting them to the French language and culture.

Frenchman Dr Jacques Soulié, a former Director of the AF Kandy who has contributed immensely to the propagation of the French language and culture in Kandy then takes viewers on a tour of his brainchild and a major cultural venue – The Suriyakantha Centre for Art and Culture – which has been visited by hundreds of Sri Lankans and foreign visitors.

To close the show is Ravana Wijeyeratne, the Honorary Consul for France in Kandy whose links with France go back to his childhood when his father Tissa Wijeyeratne was Ambassador for Sri Lanka in France in the early 1970s.

Rendez-Vous with Yasmin and Kumar

comes to you on Tuesday 30th November at 7.00 pm on the YouTube channel of the Embassy of France in Sri Lanka and the Maldives

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