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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

UK support for govt.’s pragmatic reconciliation process

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Lord Ahmad with GL

By Jehan Perera

The government would be relieved by the non-critical assessment by visiting UK Minister for South Asia, United Nations and the Commonwealth, Lord Tariq Ahmad of his visit to Sri Lanka. He has commended the progress Sri Lanka had made in human rights and in other areas as well, such as environmental protection. He has pledged UK support to the country. According to the President’s Media Division “Lord Tariq Ahmad further stated that Sri Lanka will be able to resolve all issues pertaining to human rights by moving forward with a pragmatic approach.” The Minister, who had visited the north and east of the country and met with war-affected persons tweeted that he “emphasised the need for GoSL to make progress on human rights, reconciliation, and justice and accountability.”

Prior to the Minister’s visit, President Gotabaya Rajapaksa had announced in Parliament that his government had not violated nor would support “any form of human rights violations.” This was clearly an aspirational statement as the evidence on the ground belies the words. Significantly he also added that “We reject racism. The present government wants to safeguard the dignity and rights of every citizen in this country in a uniform manner. Therefore I urge those politicians who continue to incite people against each other for narrow political gains to stop doing so.” This would be welcome given the past history especially at election time.

The timing of Lord Ahmad’s visit and the statements made regarding human rights suggest that the forthcoming session of the UN Human Rights Council in Geneva, commencing on February 28, loomed large in the background. The UN High Commissioner for Human Rights will be presenting a written report on that occasion. A plethora of issues will up for review, including progress on accountability for crimes, missing persons, bringing the Prevention of Terrorism Act in line with international standards, protecting civil society space and treating all people and religions without discrimination.

The UK government has consistently taken a strong position on human rights issues especially in relation to the ethnic conflict and the war which led to large scale human rights violations. The UK has a large Tamil Diaspora who are active in lobbying politicians in that country. As a result some of the UK parliamentarians have taken very critical positions on Sri Lanka. Lord Ahmad’s approach, however, appears to be more on the lines of supporting the government to do the needful with regard to human rights, rather than to condemn it. This would be gratifying to the architects of the government’s international relations and reconciliation process, led by Foreign Minister Prof G L Peiris.

REACHING OUT

In the coming week the government will be launching a series of events in the North of the country with a plethora of institutions that broadly correspond to the plethora of issues that the UNHRC resolution has identified. War victims and those adversely affected by the post war conditions in the North and livelihood issues that arise from the under-developed conditions in those areas will be provided with an opportunity to access government services through on-the-spot services through mobile clinics. The programme coordinated by the Ministry of Justice called “Adhikaranabhimani” is meant to provide “ameliorated access to justice for people of the Northern Province.”

Beginning with Kilinochchi and Jaffna there will be two-day mobile clinics in which the participating government institutions will be the Legal Aid Commission, Office for National Unity and Reconciliation, Office for Reparations, Office on Missing Persons, Department of Debt Conciliation Board and the Vocational Training Authority to mention some of them. Whether it is by revising 60 laws simultaneously and setting up participatory committees of lawyers and state officials or in now launching the “Adhikaranabhimani” Justice Minister Ali Sabry has shown skill at large scale mobilisation that needs to be sustained. It is to be hoped that rather than treating them as passive recipients, the governmental service providers will make efforts to fulfill their need for justice, which means that the needs of victims and their expectations are heard and acknowledged.

It will also be important for the government to ensure that these activities continue in the longer term. They need to take place not only before the Geneva sessions in March but also continue after them. The conducting of two-day mobile clinics, although it will send a message of responsiveness, will only be able to reach a few of the needy population. The need is for infusing an ethic of responsiveness into the entirety of the government’s administrative machinery in dealing with those problems that reaches all levels, encompassing villages, divisions, districts and provinces, not to mention the heart of government at the central level.

The government’s activities now planned at the local level will draw on civil society and NGO participation which is already happening. Government officials are permitting their subordinate officials to participate in inter-ethnic and inter religious initiatives. It is in their interest to do so as they would not wish to have inter-community conflicts escalate in their areas which, in the past, have led to destruction of property and life. They also have an interest in strengthening their own capacities to understand the underlying issues and developing the capacity to handle tensions that may arise through non-coercive methods.

BUILDING PEACE

Many of the institutions that the government has on display and which are going to the North to provide mobile services were established during the period of the previous government. However, they were not operationalized in the manner envisaged due to political opposition. Given the potency of nationalism in the country, especially where it concerns the ethnic conflict, it will be necessary for the government to seek to develop a wide consensus on the reconciliation process. The new constitution that is being developed may deal with these issues and heed the aspirations of the minorities, but till that time the provincial council system needs to be reactivated through elections.

Sooner rather than later, the government needs to deal with the core issue of inter-ethnic power sharing. The war arose because Sinhalese politicians and administrators took decisions that led to disadvantaging of minorities on the ground. There will be no getting away from the need to reestablish the elected provincial council system in which the elected representatives of the people in each province are provided with the necessary powers to take decisions regarding the province. In particular, the provincial administrations of the Northern and Eastern provinces, where the ethnic and religious minorities form provincial majorities, need to be reflective of those populations.

At the present time, the elected provincial councils are not operational and so the provincial administration is headed by central appointees who are less likely to be representative of the sentiments and priorities of the people of those provinces. In the east for instance, when Sinhalese encroach on state land the authorities show a blind eye, but when Tamils or Muslims do it they are arrested or evicted from the land. This has caused a lot of bitterness in the east, which appears to have evaded the attention of the visiting UK minister as he made no mention of such causes for concern in his public utterances. His emphasis on pragmatism may stem from the observation that words need to be converted to deeds.

A video put out by the UK Foreign, Commonwealth and Development Office confirms a positive approach with regard to engaging with the Sri Lankan government. In it Lord Ahmad says “the last three days illustrated to me that we can come together and we can build a constructive relationship beyond what are today with Sri Lanka. We can discuss the issues of difference and challenge in a candid but constructive fashion.” Lord Ahmad’s aspiration for UK-Sri Lankan relations needs to be replicated nationally in government-opposition relations, including the minority parties, which is the missing dimension at the present time.

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Yohani…teaming up with Rajiv and The Clan

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I know many of you, on reading this headline, would say ‘What?’

Relax. Yohani, of ‘Manike Mage Hithe’ fame, is very much a part of the group Lunu.

But…in February, she will be doing things, differently, and that is where Rajiv and the Clan come into the scene.

Rajiv and his band will be embarking on a foreign assignment that will take them to Dubai and Oman, and Yohani, as well as Falan, will be a part of the setup – as guest artistes.

The Dubai scene is not new to Yohani – she has performed twice before, in that part of the world, with her band Lunu – but this would be her first trip, to Oman, as a performer.

However, it will be the very first time that Yohani will be doing her thing with Rajiv and The Clan – live on stage.

In the not too distant past, Rajiv worked on a track for Yohani that also became a big hit. Remember ‘Haal Massa?’

“She has never been a part of our scene, performing as a guest artiste, so we are all looking forward to doing, it in a special way, during our three-gig, two-country tour,” says Rajiv.

Their first stop will be Dubai, on February 5th, for a private party, open-air gig, followed by another two open-air, private party gigs, in Oman – on February 10th and 11th.

Another attraction, I’m told, will be Satheeshan, the original rapper of ‘Manike Mage Hithe.’

He will also be a part of this tour (his first overseas outing) and that certainly would create a lot of excitement, and add that extra sparkle, especially when he comes into the scene for ‘Manike Mage Hithe.’

Yohani and her band, Lunu, last performed in Dubai, a couple of months back, and Satheeshan, they say, was the missing link when she did her mega internet hit song – live, on stage.

There was a crowd to catch her in action but it wasn’t a mind-blowing experience – according to reports coming our way.

A live performance, on stage, is a totally different setup to what one sees on social media, YouTube, etc.

I guess music lovers, here, would also welcome a truly live performance by Yohani de Silva.

In the meanwhile, I’m also told that Rajiv Sebastian plans to release some songs of the late Desmond de Silva which he and Desmond have worked on, over the years.

According to Rajiv, at this point in time, there is material for four albums!

He also mentioned that he and his band have quite a few interesting overseas assignments, lined up, over the next few months, but they have got to keep their fingers crossed…hoping that the Omicron virus wouldn’t spike further.

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Features

Multi-talented, indeed…

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Thamesha Herath (back row – centre) and her disciples (students)

We all know Trishelle as the female vocalist of Sohan & The X-Periments, so, obviously it came to me as a surprise when it was mentioned that she is a highly qualified Bharatanatyam dancer, as well.

What’s more, she has been learning the skills of Bharatanatyam, since her kid days!

And, to prove that she is no novice, where this highly technical dance form is concerned, Trishelle, and the disciples (students) of State Dance Award winning Bhartanatyam Guru, Nritya Visharad Bhashini, Thamesha Herath, will be seen in action, on January 29th, at 4.00 pm, at the Ave Maria Auditorium, Negombo.

Said to be the biggest event in Bharatanatyam, this Arangethram Kalaeli concert will bring into the spotlight Avindu, Sithija, Mishaami, Nakshani, Venushi, Veenadi, Amanda, Sakuni, Kawisha, Tishaani, Thrishala (Trishelle), Sarithya, Hewani, Senuri, Deanne and Wasana.

In addition to her singing, and dancing skills, Trishelle has two other qualifications – Bachelor in Biomedical Science, and Master in Counselling Psychology.

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