База данных по гендерной проблематике и правам на землю

Sri Lanka

Общепринятые нормы, религиозные убеждения и общественная практика, оказывающие воздействие на гендерно-дифференцированные земельные пра

Customary norms and traditional practices vary across ethnic and religious groups.

Northern and Eastern Tamil and Muslim women as well as Sinhalese women in the East live within a patriarchal structure. The gender division of household labour is deeply ingrained though it is more flexible in the lower castes and classes. Women generally make decisions on household matters, education of children and health. Men make other major decisions such as buying and selling of assets (21).
Traditionally women engage in household work and income generation within the home and contribute to the household economy by working in family farms (12).

Among the Sinhalese, in a diga marriage, the woman moves out to live virilocally with her husband and the children take the father’s name. In a binna marriage, the husband moves to the wife’s house and jointly manages the land she inherits (16). A diga-married daughter, who forfeits her share of inheritance upon marriage, can re-establish her rights if she returns to her parents’ home while the father is still alive and establishes herself in binna. If she returns after the death of the father, the heirs must acknowledge her marriage as binna (20).

The customary law Tesawalami governs inheritance of property and matrimonial rights of Tamil women in Jaffna. Under Tesawalami, a woman can own property individually, can acquire property during marriage and can keep the dowry she received. Control of her property, however, is in the hands of her guardian, the guardianship of a woman passing from the father to the husband. A wife cannot invest in the property, mortgage, lease, or sell it without the prior permission of her husband. Furrthermore, she cannot enter into contracts without his consent (21).

Among Muslims, kaikuli, or money and gifts given by the parents of the bride to the bridegroom to be kept in trust for the bride, has been statutorily recognised and is widely practised. Kaikuli is a financial burden on the bride’s family and it is also difficult to retrieve on divorce or separation because most men do not know that kaikuli should be kept in trust for the bride. Furthermore, Quazi courts have no jurisdiction in respect of kaikuli, which must be recovered from the District Courts (22).

The practice of child marriage, although not common, is being revived within displaced Muslim communities in the North Western Province (22).

Традиционные органы власти и общепринятые учреждения

Village leaders once administered local affairs and performed judicial functions, such as reconciling local disputes.

The Gam Sabhas were village level organizations, under the village leader, which had mainly agricultural functions. During the colonial rule, in 1818, the Gam Sabhas were abolished. However, the introduction of the Irrigation Ordinance in 1856 entrusted village communities with autonomy over activites related to irrigation and cultivation (5).

Наследование/правопреемство фактическая практика

- Traditionally the Sinhalese communities have had bilateral patterns of inheritance, depending on the kind of marriage a woman contracted (16).

- A binna-married woman had the same rights of inheritance in the ancestral estate of her father, praveni, as her brothers and unmarried sisters. Instead a diga-married daughter had to forfeit the share in her father’s praveni, sometimes in exchange of a dowry. Only a woman who was an only child could inherit everything regardless of the kind of marriage she went into. The succession rights of sons were not conditional on the kind of marriage they contracted.

- Today Sinhalese women, both Kandhyan and not, do inherit land. However, while, in general, they inherit less than their brothers, they are more likely to receive the same share of their brother’s if are married in binna. Furthermore, diga-married women have better chances of inheriting if they remain in the natal village (20).

- Under the customary law Tesawalami, Tamil women in Jaffa are entitled to patrimonial and non-patrimonial inheritance. However, a woman who receives a dowry loses her right to inherit parental properties if she has surviving brothers. She may however inherit a half share of the spouse’s property acquired during marriage (21).

- Among the matrilineal Muslim Moors, concentrated in the Eastern Province, property was transferred to daughters through dowries consisting of cash, land and cattle. The eldest received the largest dowry. Sons moved to their wives’ house on marriage, but retained usufructuary rights in their natal homes and to any undivided property left after over after the sisters had been dowered.

- Nowadays, the Muslim identity has come to prevail over the ethnic one and Islamic law has primacy over customary norms. Furthermore, since the introduction of Islamic law, the customary rules of matrilineal inheritance are no longer applicable (20).

Расхождения между статутным и обычным правом и пробелы в законодательстве

- Although the Constitution recognizes the principle of gender equality, since matrimonial, property and inheritance rights of Kandyan Sinhalese, Tamils and Muslims are governed by their own systems, inequalities as to access to and disposition of property persist.
For instance, under the Matrimonial Rights and Inheritance Jaffna Ordinance of 1911, Tamil husbands may sell or mortgage the wife’s share of the thediatheddam, that is, the property acquired by either spouse during marriage using the couple’s shared funds or estate.
Under the Kandyan Law Declaration and Amendment Ordinance of 1938, a daughter who marries in diga - whereby the bride moves to the husband’s house or that of his parents - must transfer any immovable property she inherited after the death of her father to her brothers or binna-married sisters, upon their request for such property (16).

- While the Land Development Ordinance (LDO) of 1935 recognizes a widow or a woman who previously owned land as eligible for the alienation of land,  the LDO also states that, on remarriage, a widow loses the right to cultivate, if she has not been nominated a successor by her husband, and that she cannot nominate a successor. Succession provisions in the LDO thus violate the principle of gender equality articulated in the Constitution (21).

 

Источники: цифры в скобках (*) обратиться к источникам, отображаются в списке литературы.