Savithri Goonesekere is Professor of Law at the Law Faculty, University of Colombo. She was formerly Professor of Law and Dean of the Faculty of Humanities and Social Sciences of the Open University of Sri Lanka. She is a member of the University Grants Commission, the National Commission on Women and the Commission on the Rights of the Child and a member of the Boards of several international non-governmental organisations. She has authored books and articles in the areas of comparative family law, human rights, women, law and development and legal history, published in Sri Lanka and abroad. Following are excerpts of the 1996 G.C. Mendis Memorial Lecture on 'Asian Values, Equity and a Sri Lankan Family Policy' delivered by Prof. Goonesekere recently.
Policy guidelines relating to the rights of the family are set out in Constitution of Sri Lanka. These standards have been derived from international standards on human rights, some of which Sri Lanka has accepted by ratifying treaties.
However, current family policy violates constitutional and international standards in many instances. For example, significant violation of standards on equality occurs in situation where bigamous are contracted by Sri Lanka who have already contracted valid first marriages. Sri Lanka is more advanced than many other countries in South Asia in having an established system for civil registration of births, marriages and deaths. In an environment where arranged marriages continue to be contracted, even using professional computer services and newspaper advertisements bigamous marriages are being contracted by men who do not disclose that they have been married before. Under non-Muslim law these second marriages are illegal despite good faith, and the very existence of the marriage renders the second union legally void of all consequences. A principle of Roman Dutch law on 'putative marriages' that gives the Sri Lankan Court a discretion to confer the status of legitimacy or legality on children of such a second marriage can be invoked. Nevertheless the woman who believes in good faith that she has married has no legal status even though the parties had married and lived as family for many years. Sri Lankans are required to produce their national identity cards for many purposes. However identity need not be established at the time of marriage and there is no current system to trace back marriage, records.
By contrast, a Sri Lankan married man who converts to Islam may, by the simple act of conversion establish that he has contracted a valid second marriage. In the leading case of Attorney General v Reid (1964) the Privy Council, the highest appellate Court at the time, decided that a Sri Lankan man can convert to Islam and register a valid polygamous marriage under Muslim law. It was apparent on the facts of the case that the convert was governed by the General law, which unlike Kandyan Law restricts the capacity to obtain a divorce. Unless a divorce is not contested, the party seeking a divorce must prove matrimonial fault of his spouse in a case filed in the Courts. In Reid's case, the first wife was a Catholic by religion. It is clear from the facts of the case that when she failed to consent to divorce, Reid converted to Islam and contracted a second marriage, which the Privy Council was prepared to recognize as a valid union.
From a policy point of view it is obvious that the legal recognition given to the second family in this situation completely undermines the family created by the first marriage. The wife and children become members of a legal family only in name because their rights to support are affected, and the man may even pronounce talak and unilaterally repudiate the first wife. Islam endorses the practice of polygamy in situations were a man can love and maintain his polygamous families in the identical manner. This constraint, combined with the Koranic viewpoint that it is impossible to achieve this equality has been used to place restraints on polygamy in some Muslim countries. Indeed the Koranic verse on polygamy, implying the restraints is recorded in the first code of Muslim law in Sri Lanka promulgated by the British in 1806. Ironically the Reid case has given legitimacy to a legal position that cannot be countenanced by the values of Islam on polygamous marriage, creating a situation where the convert in fact denies all obligations to the first family unit.
In Attorney General v. Reid, the Privy Council did not consider their decision unfair to the wife, because the Court recognized that despite the conversion, the first marriage remained a valid, subsisting marriage, giving the first wife a right to maintenance or a divorce on the ground of adultery or desertion. This legal position produces a clear conflict of laws since it is the failure of the wife to agree to divorce that creates the very need for the polygamous marriage. In that sense, the first wife's situation is no different from that of a woman who finds that her marriaae is automatically dissolved when her husband converts to Islam.
In Visvalingam v Visvalingam (1980) a woman who had married a Malaysian under Sri Lankan General law, found herself in a situation where her Malaysian husband converted to Islam. The Islamic law as apllied in Malaysia considered her automatically divorced because she refused to convert to Islam. Nevertheless, neither Reid's case nor Visvalilgam's case address the possibility of the first wife being divorced by the convert according to Islamic law through the pronouncement of talak or unilateral repudiation. Since a Muslim woman is not entitled to family support or maintenance after divorce, the convert's first wife would have no redress whatsoever when she is divorced under Muslim law. Though Reid's case recognizes the validity of the first marriage under General law, the convert can argue that she is not his Muslim wife (as in the Visvalingam case), or that she is a Muslim wife (as in Reid's case), and subject to repudiation by pronouncement of talak. The impossible anomalies that ensue result in discrimination against the first wife and a violation of the fundamental right to equality. The Supreme Court of India has recently refused to follow the Reid case. In Sarla Mudgal v Union of India (1995) the Court used the English law concept of "justice, equity and good conscience" rather than Muslim personal law in a situation of a dispute between a convert and his non Muslim wife and decided that the second marriage was invalid. The concept of justice, equity and good conscience is used to resolve issues of an applicable legal norm when there is a conflict between two different systems of law. It is this conflict which the Privy Council refused to address or recognize in the Reid case when it gave validity to the converts polygamous marriage.
Sri Lankan laws on nationality and adoption also refused to treat families created by inter-marriage with foreigners or through adoption as equal in status to the usual family created within legal marriage. Thus a Sri Lankan married woman is not encouraged to establish a family in Sri Lanka. Legal policy reflected in the Citizenship Act and current admnistrative "Guidelines for the Grant of Residence Visas to Male Spouses of Sri Lankans" prevent her from transferring citizenship to her child and make it almost impossible to obtain a resident visa for her husband. The legal status of an adopted child has not been equated with that of a legitimate child, and a Supreme Court decision on Muslim law indicates that a Muslim adopted child can have no rights of inheritance in the property of adoptive parents. Though the problems of trafficking in babies has led to recent strengthening of both adoption law and Penal Code provisions on illegal sales of children to foreigners, local adoption procedures have not been reviewed. This has led to a situation where adoptive families have been created through informal arrangements that ignore legal procedures, exposing both children and the natural mother to exploitation, intimidation and even violence. The law recognizes adoption as a valid method of creating family relationships but does not even recognize the kind of home study reports that are considered as a essential preliminary step when foreigners want to adopt Sri Lankan children. The seeming reluctance to regulate this area is particularly inappropriate in a situation where inter-family adoptions are becoming rare, and adoption is used to create a family unit for a child who is a stranger to the adoptors.Sri Lanka's population statistics indicate a rise in the incidence of female headed households. These figures may be higher due to the war and the violence of the last two decades. Women are caring for children or the elderly as unmarried women, divorcees or widows. They become heads of households but do not always receive official recognition of their status in laws and administrative policies. The application of the Roman Dutch Law restricts the parental status of the widow even after her husband's death, since the husband may have appointed a guardian for the children. A recent public administrative regulation that denied maternity leave to an unmarried mother unless she could prove rape, though subsequently withdrawn, is symptomatic of the failure to recognize the status of unmarried women who shoulder family responsibilities. However, reforms initiated in 1977 in the general law of divorce have strengthened a woman's right to obtain financial support after divorce, while court decisions and the Rent Act (1972) recognize a deserted wife's right to live in the matrimonial home after divorce. The law reflects these contradictions because of the absence of a consistent family policy in regard to female heads of households, and the wider issue of financial support in the family. While Islamic law is applicable according to religious faith, the other systems do not depend on personal choice. Non Muslims have a right to choose to contract marriages under the General law. However, their property devolves on death according to Kandyan law or Tesawalamai automatically, if they do not dispose of property by will, and they are considered to be governed by these systems. Whether the system applies can also be a matter of judicial interpretation. For instance, in Sivagnanalingam's case the wife claimed inheritance rights on the basis that her husband who had lived in Colombo after his marriage to her was governed by General Law. She argued that she had a right to half of all his property as an heir under General Law. However, since Sharvananda CJ held that the Tesawalamai system applied because the husband had retained his link to the Northern Province, his property was held to have devolved under Tesawalamai rather than General Law. In the process, the wife could not obtain the property rights she would have had a right to, if the General Law had applied. Her claims were superseded by those other heirs.
With regard to violence in the family the emphasis on Asian family values suggests that the communitarian and duty based approach to family relations is conducive to family stability and harmony and it is the rights oriented Western values of individualism that is disruptive of that harmony. Nevertheless the incidence of child abuse and wife battery and violence against children and women in the family and incestuous abuse of children, particularly in families of migrant workers represents social reality in Sri Lanka today. Violence against elders in the family is also recorded in news reports and court cases. This violence is indicated in medical reports and police records, regular news reports of violence from provincial correspondents reporting court cases, and the work of NGOs involved in family counselling. The transition to the market economy, new forces of consumerism, and the failure of religion, schools, families and communities to impart values has created a situation where there has to be concern for individuals in dysfunctional families. Nevertheless, some laws and policies on enforcement tend to ignore the reality and are based on assumptions regarding the supportive caring family that are not accurate.
Physical violence against family members is criminal conduct under the Penal Code of Sri Lanka. The husband or parents of a minor do not have a legal right to beat a wife and/or children. "Moderate chastisement" for the purpose of discipline has never been a recognized legal defence to criminal liability. Parents have a limited right to use corporal punishment in discipline. The right to discipline is not a general defence to criminal conduct.
Sri Lanka, unlike many countries in Asia, does not have specific legislation dealing with cruelty to women and children or covering domestic violence. Cruelty to children is dealt with in the Children and Young Person's Ordinance (1939) but these provisions have never been brought into operation. Recent amendments to the Penal Code have now created a new offence of cruelty to children, (persons under 18 years), and expanded the definition of the offence of "Hurt" in an effort to undermine the tendency to trivialise domestic violence. The Technical Committee considering this issue felt that law enforcement and the approach to violence required a response through the basic penal law of Sri Lanka, and these offences were located in the Penal Code rather than in separate legislation on domestic violence.
For many years, Sri Lanka has failed to introduce compulsory education regulations and amendments to child labour laws because of a reluctance to punish low income parents who neglect or exploit children. Nevertheless, the Penal law of the country has always considered a parent liable for child abuse through use of physical violence. The new amendment covers both acts of cruelty and grave neglect by parents and elders. It has created new offences of procuration for prostitution, sexual exploitation of children, and trafficking. By using the word "whoever" in the definition of all these offences the amendment clearly covers parents and family members who abuse and exploit children.
Over fifty years ago, policy makers saw the need to provide for a system of registration of custody of children, as a strategy to contain the incidence of child abuse in the household under the pretext of affording foster care to low income children. Part IV of the Adoption of Children Ordinance (1941) provided for the registration of custody and monitoring of that custody. However, these provisions have never been introduced.
The unmonitored practice of fostering provides the opportunity for use of violence against children and young girls who are in fact unpaid or poorly paid domestic servants in a family. The risks faced by these children have increased because of the practice of informal adoption, where a child is brought into the family without following the legal procedures on adoption.
The recent changes in the Penal Code have for the first time created an offence of incest, defining it as an act of intercourse between persons who are within the defined prohibited degree of relationship by blood tie or adoption. However, the Attorney General must authorize prosecution, a provision introduced to ensure that a decision to prosecute will be made after consideration of the particular case, and the impact on the family. In the past, co-habitation between persons within prohibited degrees of relationship was prohibited only in marriage legislation.
Marital rape in the sense of forced sexual intercourse without consent can be considered evidence of cruelty in the law on divorce and judicial separation. However, marital rape of a woman was not an offence under the Penal Code of Sri Lanka. Amendments to the Code enacted in l995 recognized that this offence can be committed when spouses have obtained a court decree of judicial separation. This change in the law does not address the reality of sexual violence by a husband during a time of de facto separation or in an abusive relationship in a marriage that has in fact broken down.
Sri Lanka's Penal Code like the Penal Codes of countries of the subcontinent has always recognized the concept of statutory rape when rape is committed irrespective of whether the victim has consented or not. All these countries also have a concept of statutory marital rape in the case of sexual intercourse by a man with his wife below the minimum age of marriage, with or without her consent. This concept was introduced as a disincentive to child marriage because such marriages are recognized as legal according to certain customary practices in the Indian subcontinent. Since marriages of children below the age of 12 years were prohibited in Sri Lanka except in the case of Muslims, the concept of marital rape (irrespective of consent) of a child bride has always applied only to Muslims. In India and Bangladesh the relevant age for marital rape of a child bride irrespective of consent is 15 years and 16 years. However, the new Sri Lankan amendment raised the age of Statutory rape to 16 years but retained the age of 12 years for statutory marital rape.
This provision on Statutory marital rape will only apply to Muslims, since Muslim marriages below the age of 12 years continue to be legal. Recent changes to the Kandyan and General law has raised the minimum age of marriage in these systems to 18 years.
Sri Lanka's law therefore now recognizes the concept of statutory marital rape of a Muslim child under 12 years, and a general age of 16 years for statutory rape. The act of sexual intercourse itself now becomes an act of rape, irrespective of the issue ol consent, when a girl is below the age of 16 years. This provision sets a norm for prosecution of sexual violence in the household in cases where a child is abused by a family member. There is no corresponding age of statutory rape in the case of homosexual abuse, though a new offence of "grave sexual abuse" can cover such conduct. However, there are more severe punishments in the case of homosexual abuse of a boy under 16 years or 18 years, under two separate offences.
The abortion law in Sri Lanka remains strict, though medical termination is possible to save the life of the mother. A proposal to clarify that this includes termination for rape and incest that was part of the Bill on amendments to the Penal Code (1995) was withdrawn in Parliament as a controversial proposal. Consequently, legislation that addressed the issue of violence failed to deal with the issue of abortion sought by a girl after violence. This has undermined the law on rape and incest since an abortion will not be legal even when the request is made by a rape victim in circumstances where there is preliminary evidence of rape.In conclusioin, it could be said that, laws and policies on the family in Sri Lanka are in general inconsistent and give contradictory messages. They undermine rather than strengthen the capacity of the family to contribute to the wellbeing of the members of the unit. Sri Lanka's early gains in the area of health and education appear to have been largely dependent on the capacity of families of all communities and women in particular, to utilize the benefits of free health education and food subsidies to improve the quality of life of their families.
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