As we can see now Sri Lankan family is generally not a family in which the husband is the sole breadwinner and the wife essentially a home maker. What appears to be the truth is that in the Sri Lankan family the wife is compelled to be economically active except in the upper income group and the social backward groups. Recently, there is a considerable development in women’s participation in economy both in the formal and the informal sectors of the economy. Now the child rearing is not viewed as being confined to mother. Women in the country have equal opportunities of education and they forms an integral part of the labor force.
Though it is manifest that she has acquired a predominant place in the society still there is a question remaining as to whether she has equal rights in law. Has the law in Sri Lanka kept pace with the transformation of the women’s role in the family? It certainly has not.
When it comes to the post war situation, we know that the prolonged internal conflict in the country has given rise to many single parent families. Now the indications are that among the displaced, single parent families are overwhelmingly headed by women. But the present legal system does not provide the required framework for them to easily step into the role of the guardian and it does not facilitates the traditional customary practices relating to assumption of family responsibility to come into effect[1]. Therefore at the end of the day women are facing great difficulties with these complicated administrative procedures that have been introduced by the government[2].
Today women’s decision making capacity with regarding to property matters has been curtailed in two of the customary personal laws, viz. the Tesawalamai applicable to Tamils in the North and the Kandyan Law applicable to the Kandyan Sinhalese. According to these laws the wife acquires no shares in the ancestral property of the husband[3]. As the legislations regulating Tesawalamai has introduced a concept of separate property during the marriage and a division of the acquired property on the termination of the marriage, complete powers of administration is not conferred on her. Thus a women governed under Tesawalamai requires the husband’s consent to dispose or deal with her immovable property[4]. Moreover with regarding to dowry property husband has been considered as the trustee of such property and in that regard too wife’s capacity to deal with such property has been greatly curtailed[5]. In General Law or in Kandyan Law there are no such restrictions.
Under the General Law of our country the father has a considerable decision making power in relation to the children of the marriage. In the sphere of custody care and control Roman Dutch Law recognized a preferential right in the husband. Although initially the courts were reluctant to interfere with this right with the entrenchments of the best interest of the child standards, the current trend in Sri Lanka is to make his right subordinate to the interest of the child. What is significant however is that the law is based on the premise that it is the father who must take all decisions in relation to the care, custody, and control of the child during the marriage.
In Muslim Law according to the concept of marriage guardianship, in relation to a female of the Safi sect the consent of the marriage guardian to the marriage is vital. In that regard the father is the person who is legally empowered to act as marriage guardian. The mother appears to rank a very low stage in the order of persons who may succeed the father as a marriage guardian[6]. Thus it is manifest that both the general law as well as the personal laws does not afford the married woman any decision making role in regard to her children. Is this because of the premise that woman are unfit or unqualified to take part in decisions relating to their children? Or is it only her role to physically nurturing their children?
This clearly shows that the changes that have been taken place so far in our legal system have not reflected these issues yet. So it is high time to address these issues while paying a comprehensive review of the existing family law in the country, in order to give a better place to the woman in the society.
[1] Goonesekara, S, (1998), Children, Law and Justice, A South Asian Perspective, Pp. 101-102.
[2] Soysa, S, Transformation of the Sri Lankan Family and the Challenges of Law Reforms.
[3] Exceptionally when there are no heirs she may be entitled to his ancestral property.
[4] Matrimonial Rights and Inheritance Ordinance (Jaffna) No 1 0f 1911, section 06.
[5] Tambiah, H, W, Laws and Customs of the Tamils of Jaffna, Pp. 173- 174.
[6] Goonesekara, S, Sri Lanka Law on Parent and Child,P.314.
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