The human rights of women and the girl child are an inalienable,

integral and indivisible part of human rights. The full and equal participation of women
in political, civil, economic social and cultural life, at the national, regional and
international levels, and the eradication of all forms of discrimination on grounds of sex
are priority objectives of the international community.
- The Vienna Declaration and
Platform of ActionCEDAW
, CEDAW

, ,
, CEDAW

,
,
,
.
Many Different Systems of Law have affected the development of the law of Sri Lanka.
These are Sinhalese Law (Today more commonly referred to as Kandyan Law),
Buddhist Law, Hindu Law, Tesawalamai Law, Islamic Law, Mukkuvar Law, RomanDutch Law and English Law. An Individual may, in respect of different transactions or
legal relations, be governed by different system of Law.1

, -
(Only to the extent as amended by English Statutes and Introduce by the
Dutch)
, , .


.

.

-
. CEDAW ,
1 L.J.M. Coory, An Introduction to the Legal system of Sri Lanka (Stamford Lake
Publications 1972) P1.
Page | 1


,
,
.


,

, ,

.

States Parties shall take all appropriate measures to eliminate discrimination against
women in the political and public life of the country and, in particular, shall ensure
to women, on equal terms with men, the right:
To participate in non-governmental organizations and associations
concerned with the public and political life of the country 2

.
9%, 6% 20%
15% 5%
3.

.
.

1/3 4.

,
22 (4) (2B)5
, 25%
2

Convention for Eliminating all kids of Discrimination Against Women (adopted 18 December 1979 GA Res 34/180 A27(1) (CEDAW) art
7(b)

3 Source;
4

Women of the world: Laws and policies affecting their reproductive rights (The Centre for Reproductive Rights 2004)

Constitution of India 1951, Article 243(D).

Page | 2

 .

.
This legislation provided an opportunity to increase womens representation in local
councils in Sri Lanka and yet that the government failed to ensure a separate and mandatory
quota for women at local level6

.




,
(Stereotype Attitude),


.
This perspective addresses the traditional objection to these measures as initiatives
which reinforce sexual stereotypes, and womens vulnerability and weakness, without
accelerating or ensuring long term gender justice and equality.7



.

. ,

.

.
5

Local Authorities Elections (Amendment) Bill 2010.

List of Issues and Questions raised by the CEDAW Committee with the state party on the combined fifth,
sixth and seventh periodic report of Sri Lanka<http://www2.ohchr.org/english/bodies/cedaw/docs/ngos/WMC_SriLanka48.pdf> accessed
17 May 2013
6 Women and Media Collective

S. Goonesekere The Concept of Substantive Equality and Gender Justice in South Asia< http://www.unwomensouthasia.org/assets/TheConcept-of-Substantive-Equality-final-31-12-072.pdf> accessed 16 May 2013

Page | 3



,
.

,
,
,
8.
States Parties shall take all appropriate measures to eliminate discrimination
against women in all matters relating to marriage and family relations and in particular
shall ensure, on a basis of equality of men and women9

CEDAW 16
,

,
,
, ,

.

18 .10
. Gunarathnam v Register
General11 15 22
, 15
.

,
.
8

Although an attempt has been made to reserve a mandatory quota in the nomination list exclusively for women and political parties have
been advised to consider this principle, the environment has certainly not been conducive to creation of a sense in confidence amongst
women that it is an area they could engage in ( Combined 5,6 and 7 periodic Reports of state parties Sri Lanka, response paragraph 279)

Convention for Eliminating all kids of Discrimination Against Women (adopted 18 December 1979 GA Res 34/180 A27(1) (CEDAW) art
16(1).

10

General Marriages Ordinance No; 19 of 1907, S15.

11

(2002) 2 Sri L R 302

Page | 4

Per Tilakawardana j, "Since the prohibited age of marriages has been raised to 18 years of age,
the absolute bar to marriage must necessarily override the parental authority to give consent to
the marriage of a party. It was not relevant whether parents agreed or did not agree to the
marriage of their children, only persons who had completed 18 years of age could enter into a
valid marriage."12

18 13,

14.
(Putative Marriage)
.

. 12

15.
, CEDAW

.
(Without any Reservation)
16.
The CEDAW Committee has reiterated similar views in its recent concluding
commence on Sri Lanka, which has not entered reservations to the treaty but has failed
to intervene by specifying a minimum age of marriage for Muslims.17

,

12

ibid

13

Kandyan Marriages and Divorce Act No; 44 of 1954. S 4(1)

14

Ibid, S 4(2)

15

Muslim Marriages and Divorce Act No; 13 of 1951, S 23.

16

Countries in South Asia like Pakistan, Bangladesh and Maldives with an all pervasive Islamic legal base have ratified the CEDAW and
CRC with reservation or declarations that their treaty obligation will be fulfilled subject to the normative standards of Islamic Law.

17

Savitri Goonesekere, Violence, Law and Womens Rights in South Asia (Sage Publications 2004) P.15.

Page | 5

 ,
.

Reforms in family Law systems have been constantly postponed on the argument of
policy makers that these are traditional laws which are sacrosanct.18

,

19 (Fault Based)

(Mutual Consent) 20,

21
22.
Unilateral repudiation by a Muslim husband in Pakistan, India, Bangladesh, Sri
Lanka and Maldives, which has one of the highest recorded divorce rates in the world,
can also be considered a form of violence against women, since these divorces are often
pronounced even without conforming to the limitations of the family law.23

,

.
.


24.
18

Ibid, P 55

19

General Marriages Ordinance No; 19 of 1907 S.19

20

Kandyan Marriages and Divorce Act No; 44 of 1954 S 32.

21

Muslim Marriages and Divorce Act No 13 of 1951 S.27.

22Ahmed v.Ruwaida Umma, (1949) 3

23

MMDR 99

Savitri Goonesekere, Violence, Law and Womens Rights in South Asia (Sage Publications 2004) P.20

24

The Law cannot be changed or rein informed overnight but what is important to do is to take the first step forward to do so because
without taking the first you cannot think of a second (My Own emprises added)

Page | 6


.
25
.

,

.26
Natalie Abeysundere V.
27
Christopher Abeysundere and Another
,
,

28.

,



29.

,
.

.

25

Muslim Marriages and Divorce Act No: 13 of 1951, S 24.

26

Reid v. Attorney-General (1964) 65 NLR 97

27 (1998) 1 Sri L R 185

28

Per G. P. S. De Silva, CJ Section 18 of the Marriage Registration Ordinance prohibits polygamy and sections 18, 19 (1), 35 (1) and
35(2) read together show beyond doubt that the Ordinance contemplates only a monogamous marriage; and the respondent could not, by a
unilateral conversion to Islam, cast aside his antecedent statutory liabilities and obligations incurred by reason of the prior marriage. The
rights of the respondent are qualified and restricted by the legal rights of his wife whom he married in terms of the Marriage Registration
Ordinance

29

Law Reforms when even possible to make are not been done and this shows the lack of due diligence from the state parties and other
relevant authorities to bring about a change to the existing system which is discriminatory for women (My Own Emphasis added)

Page | 7

 (Alimony Pendent Lite)

30.

.

,
.

, (Iddat)
,
.
31.

32.


,

,
.


.
A married woman under the roman-Dutch Law which is the foundation of General
Law of marriage was placed under the guardianship of her husband and within his
marital power.33


.
30

Civil Procedure Code S.614

31

Muslim Marriages and Divorce Act No;13 of 1951, S 47 (1) (d)

32

Ibid, S.87

33

Nimal Samarasundere, Women and Domestic Law and life in Sri Lanka and The SAARC Countries (Godage International Publishers
2011) P.157

Page | 8

 CEDAW 1,2,3
.
States Parties shall take in all fields, in particular in the political,
social, economic and cultural fields, all appropriate measures, including legislation, to
en sure the full development and advancement of women , for the purpose of
guaranteeing them the exercise and enjoyment of human rights and fundamental
freedoms on a basis of equality with men34
The concept of Gender equality in the Sri Lankan Context has a constitutional
mandate. The constitution guarantees fundamental rights to all citizens. This includes
equality before the law. It is also one of the directive principles of the state policy to
ensure citizens do not suffer any disability on the ground of sex35

36
,
37. ,

38.


39 .

, 30

,
40.
34

Convention for Eliminating all kids of Discrimination Against Women (adopted 18 December 1979 GA Res 34/180 A27(1) (CEDAW)
art 3.

35

Kamala Nagendra, Matrimonial property and Gender Equality: A Study of Thesawalamai (Stamford Lake Publication 2008)

36

ConstitutionofSriLanka1978,Article12(2)

37

Ibid, Article 12(4)

38

Ibid, Article 17

39

Faiz Mohomed v Attorney General (1995) 1 Sri L R 372; Upaliratna v Tikiri Banda (1995) 1Sri L R 165

40

Terrorism (Temporary Provisions) Act No:49 of 1979

Page | 9



.


.



.

1931

41

1935
42


.




,
.

(State Directive
Principle) 43.

,
.
.


41

Buddhist Temporalities Ordinance No: 19 of 1931 S.40.

42

Land Development Ordinance No: 19 of 1935. Schedule 1

43

ConstitutionofSriLanka,1978Chapter6.

Page | 10

Bill of Rights

In South Africa the bill of rights

incorporates some economic rights as an indivisible and interdependent aspect of
human rights. It does not reflect the South Asian dichotomy between enforceable
fundamental rights and non-enforceable directive principles of State (or Social) Policy
regarding aspects such as health, nutrition, education and shelter. 44

Violence against Women

CEDAW 5,6

.
One of the major problems in South Asia is
that constitutional, substantive and procedural laws do not
adequately provide a frame work for protecting women against
violence45
CEDAW
,

CEDAW
.

44

Savitri Goonesekere, Violence, Law and Womens Rights in South Asia (Sage Publications 2004) P.28

45

Savitri Goonesekere, Violence, Law and Womens Rights in South Asia (Sage Publications 2004) P.23

Page | 11

1995

22

46 .
,
, CEDAW

.

47

.
,

.
By the common law definition, rape is sex without consent. Rape is thus sexual
robbery, sexual burglary being unknown, and this sort of definition has been employed
in all major legal systems.48


.

, .
But the husband cannot be guilty of a rape committed by
him-self upon his lawful wife, for by their mutual matrimonial
consent and contract the wife hath given her-self up in this kind
unto her husband which she cannot retract49
46

Penal Code (Amendment) Act: No 22 of 1995

47

Amended Sec 363(e) of The Penal Code 1883

48

John O. Savino and Brent E. Turvey, Rape Investigation Handbook (Elsevier Academic Press 2005)

49

Shyamala Gomez and Mario Gomez, Gender Violence in Sri Lanka: From Rights and Shame to Remedies and Change (Canadian
International development Agency 1999) P.80.

Page | 12

.
.
While it is laudable that women activist and others were able
to agitate for a section dealing with marital rape, the law does
not go far enough. An unconditional marital rape clause would
have strengthened the section on rape in the amendment50.
(Statutory Rape)
51 16

. 12
.

,

16

52

.
Family law reform is complex in all South Asian Countries
because of the existence of a plurality of systems of personal
Law, applicable on the basis of religion or ethnicity53.


50

Ibid, P.84

51

Amended Sec 363(e) of The Penal Code 1887

52

Muslim Marriages and Divorce Act No; 13 of 1951, S 23.

53

Savitri Goonesekere, Violence, Law and Womens Rights in South Asia (Sage Publications 2004) P.47

Page | 13


.

,
. 54,

.
,


.

,
.

.
In the debate that ensued, A.C.S. Hameed MP (UNP) stated that
laws must reflect the problems and challenges of the society; the
Muslims believe that God alone holds the key to life and death55.

56

2005 .

.
.
On Prisoners Welfare Day, 2010, the President expressed the view that that the new law
prevented reconciliation between husband and wife in line with the 4 old adages Anger
between husband and wife is only until the pot of rice cooks. In a reference perhaps to
Protection Orders, the President mentioned that in some instances courts had barred husbands
from going near the wife and that this was not helpful in reconciling the parties. 57
54

Penal Code No: 2 of 1883 S.303

55

Savithri Walatara, Abortion: The Right to Choose Bar Association Law Journal Vol 1 200. P.26

56

Prevention of Domestic Violence Act No: 34 of 2005.

Page | 14


.

,
.
Why doesnt she leave? is probably one of the most frequently asked questions for
those who witness a woman suffering domestic violence. Implicit in this question is frustration
and mystification that women are failing to look after themselves and often their children, by
remaining caught in a web of violence and abuse. This individualizing discourse places the
responsibility on the woman for leaving herself open to continued violence and abuse. It further
implies that there is a clear line separating her life in the abusive relationship and the safety and
security which awaits her once she separates58

Health, Education, Employment and the

Empowerment of Rural Women
CEDAW 10,11,12,13 14

.

59.
,

.
-
,
.
.

.
Women and Media Collective List of Issues and Questions raised by the CEDAW Committee with the state party on the combined
fifth, sixth and seventh periodic report of Sri Lanka<http://www2.ohchr.org/english/bodies/cedaw/docs/ngos/WMC_SriLanka48.pdf>
accessed 17 May 2013

57

58

Alex Coke, Domestic Violence <http://fds.oup.com/www.oup.com/pdf/13/9780199563821.pdf> accessed 19 May 2013.

59

Central Bank Report 2012

Page | 15


, ,
,

.

.


.






.

, ,
,
.


.

.

.

Conclusion
CEDAW

Page | 16


.
Since the problem of violence against women is a complex one, interfacing with many
different economic and social factors that entrench gender inequality, law reform in
south Asian countries must be holistic. Some countries have complex legal systems,
derived from many sources because their historical experience spans many centuries.
Religious custom and colonial legal norms have combined to entrench discriminatory
legal values, and these need to be removed to provide a normative structure, and
harmonize with womens human rights recognized in international law and national
constitutions. These studies demonstrate clearly that reform of laws on violence against
women are incomplete, and can at best have limited impact, when discrimination is
entrenched in other connected areas.60

.

.
A pluralistic and multidisciplinary approach to the problem of violence against women
must not undervalue the Significance of law and control.61

, ,
,
.
Law can never be a single solution. It is one of a range of initiatives that must be
combined for achieving an effective response to violence against women62.

CEDAW

.
60

Savitri Goonesekere, Violence, Law and Womens Rights in South Asia (Sage Publications 2004) P.45

61

Ibid, P.74

62

Ibid

Page | 17

The studies therefor confirm the reality of failed legal systems in responding to one
critical problem faced by South Asian women63

The Implementation of the CDAW principles has been found short coming due
to two main reasons, one being the multiplicity of laws that govern the women in a
country and the other being the constitutional and administrative authorities who has
by pass the responsibilities cast upon them in protecting and enhancing women, though
there may not be a one single solution in resolving this matter but a step forward is
necessary for the implementation of even the things that are possible. (My Own
Emphasis Added)

63

Ibid

Page | 18