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| Sunday, 10 August 2003 |
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Moving towards a uniform Marriage and Divorce Law by Jayanthi Liyanage Can a man divorce his wife in a country where she had not been for a single day? Prof. Sharya Scharenguivel nee de Soysa brought up this question when she narrated the case of Satya vs. Teja Singh at her lecture "Women and the Civil Law: an agenda for reform", the last in the series "Women and human rights", organized by the National Women's Committee of the Ministry of Women's Affairs conducted at the BMICH.
Satya and Teja Singh, both Indian citizens, married each other in the state of Panjab. Soon after the couple's two children were born, Teja left for higher studies in the USA. Several years later, Satya brought an action for maintenance against Teja, alleging that he had neglected to maintain her and the children. Teja contested the action, asserting that his marriage to Satya had been dissolved by a decree of divorce in the State of Nevada and that she had ceased to be his wife. Therefore, his argument was that he no longer was bound to support her. The lower court held that Teja had not permanently settled in the State of Nevada. But the High Court held that he was domiciled in Nevada at the crucial time the proceedings for divorce began. Seen in that light, the Nevada court had the jurisdiction to pass the decree of divorce, as the domicile of the wife, without exception, follows the domicile of the husband. But, in India, this foreign decree was not recognized on the ground of fraud. The case shows the unfairness of holding that the wife was domiciled in Nevada where she had not spent a single day and how the laws relating to dependent domicile between spouses needs to be re-assessed to award equal treatment to both spouses. By spotlighting the plight of Satya in India, Prof. Sharya sharpens our own campaign for reforms in the local Civil Law to make sure that it does not sanction the injustices against women brought on by social, cultural or religious attitudes, customs and traditions. The legislative changes proposed in the Women's Charter is to improve the Sri Lankan civil law to be on par with international standards and to uphold the equality status of women entrenched in Articles 15 and 16 of the Convention on the Elimination of Discrimination Against Women (CEDAW). Article 15(2) accords to a woman in civil matters, a legal capacity identical to that of a man and the same opportunities to exercise that capacity, in actions such as concluding contracts and the administration of property. Article 16 ensures that both men and women have the same rights in all matters relating to marriage and family relations, such as choosing a spouse, entering into a marriage with free and full consent, rights and responsibilities as parents, and owning, acquiring, managing, administering, enjoying and disposing of property. As Prof. Sharya states, the non-discriminatory standing on the basis of sex (male/female) guaranteed by the Article 12 of the Sri Lankan Constitution could be rendered ineffective by the Article 16 which provides for all existing written law and unwritten law to be valid and operative although such law could be inconsistent with the constitutional provisions. This situation is aggravated by Article 80(3) which provides for no court or tribunal to question the validity of an Act once a Bill becomes law. New legislation can be challenged only at the bill stage which hardly allows time for the contender to prepare an effective case for challenge. As such, we are way behind the provisions of the South African Constitution, considered a model constitution enshrining the equality of the diverse humanity, in which both new law and existing law is amenable to challenge, to fulfil the rights contained in the Bill of Rights. "My reasons for comparing the South African constitutional provisions with those of Sri Lanka is to establish that common law and legislation is constantly under review in a system where the Constitution does not have a clause saving all existing law which may be repugnant to its Bill of Rights," Prof. Sharya said. In S vs. Williams in South African Constitutional Courts, the constitutionality of juvenile whipping in terms of the South African Criminal Procedure Act, was successfully challenged on the basis that it violated the constitutional guarantees of equal protection of the law, the right to equality, dignity and to be free from torture or inhuman and degrading treatment. Provisions "But, in Sri Lanka, such provisions cannot be challenged because of the saving clause in the Constitution...Successive governments have viewed family and family related matters as unimportant or ... as too sensitive. Where special laws or customary laws are concerned, they appear to proceed even more cautiously... Governments do not appear to want to intrude into these systems and create the perception that they do not respect the different religious and ethnic groups," said Prof. Sharya. "International Standards have therefore, been jettisoned and the development of a uniform code abandoned. In 1959, the Commission on Marriage and Divorce observed that the time had come 'for a small independent country of 9.5 million to have a uniform law which should set minimum standards." Four and a half decades later, we have ten more millions, but the recommendations remain unrealized. Both the General Law and the Thesawalamai deem that a woman acquires her husband's domicile and personal law, in the concept of unity of domicile and the unity of personal law. When a Kandyan woman marries a Tamil or a Burgher, she comes within the provisions of the Jaffna Matrimonial Rights and Inheritance Ordinance or the Matrimonial Rights and Inheritance Ordinance and ceases to be governed by the Kandyan Law except for the purpose of succession. But, if she marries a low country Sinhalese man, the concept of dependent domicile does not apply as there is judicial authority to support the view that as both belong to the same race, she could retain her personal law. Another argument is that a marriage between a non-Kandyan and a Kandyan steps out of the arena of their personal law and becomes governed by the General Law. The Muslim Marriage and Divorce Act only applies to Muslims and a Muslim woman contracting marriage with a non-Muslim man must marry under the General Law. "The whole issue of dependent domicile must be reassessed," Prof. Sharya emphasised. "The Women's Charter calls to ensure that neither marriage to an alien, or change of nationality by the husband during marriage, shall automatically change the nationality of the wife, render her stateless , or force upon her the nationality of her husband." The Charter elaborates that "the state shall ensure that men and women enjoy the same rights with regard to the law relating to the movement of persons and the freedom to choose their residence and domicile." Legislative reforms are also required in the areas of contracting a marriage as well as in the consequences of marriage, such as rights and responsibilities to children, divorce and property rights in relation to Thesawalamai law. Let us take a brief look at a few problem situations arising in these areas which Prof Sharya took great pains to explain in detail. The Muslim law which does not recognize the concept of a minimum age of marriage, may render a woman vulnerable to coerced early marriages and even child marriages have been recognized by the courts. The concept Sri Lankan law varies on the requirement of compulsory registration of marriage laid down in the international conventions. The General Law does not need a registration to render a marriage valid, but under the Kandyan Law, it is compulsory. The recognition of customary marriages under the General Law and the non-recognition of same marriages under the Kandyan Law has resulted in identical marriages being declared valid or invalid which deprives them the protection of the law. State intervention is stipulated in the international standards to prevent coercion into marriage, the potential for which is great in customary marriages made in closed circles. The concept of marriage guardianship in Shafi and Maliki law in some schools of Muslim Law, extends the right of guardianship until the female child or woman is married, with the Guardian or Wali requiring to be present to communicate his approval. This may not be in keeping with the CEDAW provisions that men and women have equal rights to enter into marriage, to choose a spouse and marry with free and full consent. "What should be considered now is whether Sri Lanka should move towards a Uniform Marriage and Divorce Act," Prof. Sharya reasoned. "Comprehensive divorce legislation changing the whole conceptual basis of the General Law is now in draft form. Yet, we are no way closer to the uniform ideal seen by the Commission of Marriage and Divorce in 1959." The Commissioners had recognized that this ideal could be too drastic for Muslims and suggested that they be given the option of marrying under this uniform law or the special law applicable to Muslims. "We have not moved even towards this goal," was her concluding remark. |
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The case involved "unity of domicile" which is but one of the
numerous areas where the Civil Law is found to be loaded with biases and
inequalities towards women.
