База данных по гендерной проблематике и правам на землю

Sri Lanka

Права, закрепленные в Конституции

The Constitution, 1978:

  • Article 3: Sovereignty is in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise.
  • Article 9: Buddhism is given “the foremost place”. However, the state assures to all religions the rights granted by Articles 10 and 14[1][e]”.
  • Article 10: Every person is entitled to freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of his choice.
  • Article 12(1): All persons are equal before the law and are entitled to the equal protection of the law.
  • Article 12(2): No citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such grounds.
  • Article 12(3): No person shall be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels, places of public entertainment and places of public worship of his own religion, on the grounds of race, religion, language, caste, sex.
  • Article 12(4): “Special provision subordinate legislation or executive action may be made for the advancement of women, children or disabled persons”.
  • Article 14: Every citizen is entitled to i. freedom of speech and expression including publication; ii. freedom of peaceful assembly; iii. freedom of association; iv. freedom to form and join a trade union; v. freedom to manifest his religion or belief in worship, observance, practice or teaching; vi. freedom to enjoy and promote his own culture and to use his own language; vii. freedom to engage in any lawful occupation, profession, trade, business or enterprise; viii. freedom of movement and of choosing residence; and ix. freedom to return to Sri Lanka.
  • Article 27(6) provides that the State ensure equality of opportunity to citizens, so that no citizen shall suffer any disability on the ground of race, religion, language, caste, sex, political opinion or occupation (15).

Права собственности и пользования женщин, закрепленные в Гражданском кодексе, Трудовом кодексе и Семейном кодексе

The body of laws relating to marriage consists of the general law, customary law and personal law. The general law governs most marriage-related matters for Tamils, whereas Kandyan Sinhalese can choose to be governed by the general law or their customary laws. Muslim personal law applies to Muslims (16).

The Marriage Registration Ordinance, 1907, amended in 1995:

  • It is the general law on marriage and applies to marriage between Tamils and individuals of differing ethic and religious communities.
  • In 1995, the minimum age of marriage was raised to 18 for both men and women. However, parents must consent to a marriage involving a minor. If a parent unreasonably withholds consent, a court may authorize the marriage. The lack of proof of such consent does not render invalid marriages registered under the ordinance.
  • Registration of marriages is not mandatory. Thus, customary and religious marriages, including those solemnized according to Hindu, Buddhist and Christian rites, are considered as valid although not registered.
  • Upon proof that a man and woman have cohabited as husband and wife, the law presumes that they are living together in a valid marriage, unless the contrary is proved (16).
  • Divorce may be sought in case of: i. adultery; ii. malicious desertion; and iii. incurable impotence at the time of marriage.

The 1889 Civil Procedure Code permits either spouse to petition for dissolution of marriage two years from the date of a decree of judicial separation or where there has been a separation a mensa et thoro, from bed and board, for seven years. However, courts have not been consistent in applying this provision.
A draft Matrimonial Causes Act, which explicitly introduces irretrievable breakdown of marriage as a new ground of divorce, is under consideration (16).

The Maintenance Act, 1999 and Civil Procedure Code, 1889:

  • The act requires any spouse with sufficient means to maintain the other spouse, if such individual is unable to maintain him or herself.
  • An order for maintenance will not be awarded if the applicant spouse is living in adultery or both spouses are living separately by mutual consent.
  • The Act also imposes a duty on a parent to provide for the maintenance of all minor children, needy adult offspring aged 18-25 and disabled offspring.
  • While an action for divorce is pending, either spouse has the right to enforce the other's obligation of support, under the Civil Procedure Code. The applicant-spouse needs to prove financial need and the other spouse’s ability to provide the required support
  • On the dissolution of marriage, courts have discretionary powers regarding maintenance awards under the Civil Procedure Code. A court may issue any order it thinks fit with regard to transfer of property or monetary payments of maintenance for the benefit of either spouse (16).

The Married Women’s Property Ordinance, 1923:
-  Is the general law on matrimonial property rights.

- A married woman is capable of holding, acquiring and disposing of any movable or immovable property as if she were a femme sole, without the consent or intervention of her husband. This applies to all property belonging to her at the time of marriage and property acquired or devolved to her after marriage. She also has the same remedies and redress by way of criminal proceedings for the protection and security of her separate property (16).

The Kandyan Marriage and Divorce Act, 1952, amended in 1995:

  • The 1995 amendment brought the minimum age of marriage to 18 for both sexes. Marriages in violation of this age requirement are void, unless the parties cohabit as husband and wife for one year after attaining the legal age, or if a child is born before either party has attained the legal age.
  • A second marriage is invalid, if the first one has not been legally dissolved.
  • A marriage is presumed to be diga, whereby the bride moves to the husband’s house or that of his parents, if there is no evidence as to its character.
  • A valid Kandyan marriage renders legitimate any children born to the parties prior to such a marriage. Legitimized Children are entitled to the same rights as those born subsequent to a marriage (16).
  • The act governs divorce only among Kandyans married under the act. Divorce may be sought on the grounds of: i. adultery by the wife; ii. adultery by the husband, coupled with incest or gross cruelty; iii. continued and complete desertion for two years; iv. inability to live together; and v. mutual consent.
  • An application for divorce must be presented to the district registrar, who may use discretion in granting or refusing to grant the divorce.
  • A district registrar, in granting the dissolution of a marriage, may order the husband to pay a certain amount of money or provide other support for the maintenance of his wife, children or both.
  • Judicial separation is not included. However, Kandyan Sinhalese who choose to be married under the Marriage Registration Ordinance may seek judicial separation under the Civil Procedure Code (16).

The Muslim Marriage and Divorce Act, 1951, amended in 2006:

  • The act specifies some requirements for a valid marriage; those requirements left unspecified are governed by the law of the sect to which the parties belong.
  • A minimum age requirement for valid marriage is not specified. However, where a marriage involves a girl below 12 years of age, the act requires consent of the Quazi, Islamic judicial officer, to register the marriage.
  • The consent of the wali - guardian - is required for the marriage of women of the Shafi sect, though the Quazi may overrule the consent requirement if it is unreasonably withheld.
  • The wali must communicate the bride’s consent to the marriage to the Quazi, though the act does not provided for a mechanism to manifest such consent.
  • Registration of marriage is required, although non-registration does not render a marriage invalid.
  • A woman of the Hanafi sect is permitted to enter into a marriage contract on her own, upon attaining puberty (16).
  • Polygamy is permitted, provided that the husband gives notice to the Quazi of his intention to contract a subsequent marriage.
  • A husband who wishes to divorce his wife may pronounce talak unilaterally to repudiate the marital tie without following any prescribed judicial procedures. The pronouncement does not need to be made in the presence of or communicated to the wife (16).
  • - A wife may seek divorce on the grounds identified with fasah divorce, namely: i. failure or inability of the husband to provide support; ii. malicious desertion; iii. cruelty and ill-treatment; iv.  “continued dissension and quarrels”; v. husband’s leprosy; vi. husband’s insanity; and vii. impotence (16).
  • However, the availability and scope of fasah divorce depend on the sect to which the parties belong (16).
  • Although maintenance after divorce is not recognized under Muslim personal law, the act provides three situations in which a divorced wife may claim maintenance: i. until registration of the divorce; ii. during iddah, the period of time that a divorced wife must remain unmarried; and iii. if the  woman is pregnant at the time of registration of the divorce, until she delivers the child.
  • The Qazi has exclusive jurisdiction over any claim for maintenance by or on behalf of a wife, legitimate child or illegitimate child of whom both parents are Muslims (16).
  • Under Muslim law, women are capable of independently acquiring, holding and dealing with property (16).

The Matrimonial Rights and Inheritance Jaffna Ordinance, 1911, amended in 1947:

  • Applies to Tamils in property matters.
  • Movable or immovable property a woman acquires during or before marriage remains her separate property. A woman has the power to deal with her movable property during her lifetime without the consent of her husband. However, a married woman may deal with or dispose of any immovable property to which she is entitled only with the written consent of her husband, except in the case of last wills.
  • Property acquired by either spouse during marriage using the couple’s shared funds or estate is called thediatheddam. An undivided half-share of thediatheddam vests automatically in the non-acquiring spouse. Although a husband cannot donate the wife’s share of thediatheddam under any circumstances, he may sell or mortgage it.
  • The law ceases to apply to a Tamil woman during the course of her marriage to a foreign man, but applies to both husband and wife in cases of marriage between a Tamil man and a foreign woman (16).

- The Establishments Code, the guideline of the public service published in 1985, stipulates conditions of maternity leave for employees in the public sector. According to government regulations passed in 1992 and amended in 1997, public sector female employees are entitled to a 12-week maternity leave irrespective of marital status, cause of pregnancy or duration of employment. Maternity benefits include two daily half-hour nursing breaks for a six-month period (16).

- Two laws govern maternity benefits for female workers in the private sector:
> The Shop and Office Employees Regulation of Employment and Remuneration Act, 1957 which recognizes a 12-week maternity leave for the first two pregnancies and a six-week leave for subsequent pregnancies to workers in shops and offices (16).

> The Maternity Benefits Ordinance, 1939 which recognized the right to maternity leave to female workers in any “trade”, excluding “those whose employment is of a casual nature.”

Both laws prohibit employers from terminating their female employees on the basis of pregnancy, confinement or any related illness. Furthermore, employers cannot give notice of termination to a woman while she is on maternity leave (16).

- The  Factories Ordinance, 1942 amended in 2002, increased the number of overtime hours women and young persons may work. However, such employment may be prohibited or restricted “if it appears that such overtime employment will prejudicially affect the health of such women or young person.” (16)

Наследование/ правовые механизмы

The Land Development Ordinance, 1934, amended in 1983 and 1996:

  • Entitles the surviving spouse of a deceased permit holder to succeed to the alienated land and possess it under the terms and conditions of the permit. The surviving spouse has this right even if she or he has not been nominated by the original permit-holder to be the successor, provided that she or he does not remarry.
  • Upon remarriage of a spouse who was not nominated as the successor, the land devolves to the person who was nominated by the deceased or, if no person has been nominated, land is distributed according to the third schedule of the ordinance.
  • The third schedule of the ordinance, which lists the order of inheritance, gives precedence to the male heir over the corresponding female heir (16).
  • Women are denied the right to family land in new settlements if they had no land in the location of origin (17).
  • Draft amendments to discriminatory provisions in the Land Development Ordinance are currently being considered (16).

The Matrimonial Rights and Inheritance Ordinance, 1876, amended in 1922

  • Provides for equal rights to inheritance for male and female spouses.
  • Upon the death of either spouse, the surviving spouse inherits half of the deceased spouse’s property (16).

The matrimonial property and inheritance rights of Kandyan Sinhalese and Tamils are governed by their own systems. Muslims are governed by Muslim personal law (16).

The  Kandyan Law Declaration and Amendment Ordinance, 1938, amended in 1944,

  • Applies to Kandyan Sinhalese in property matters.

- Women do not have equal intestate rights with men under Kandyan law. Legitimate sons and daughters inherit their parents’ property in equal shares, although a daughter who marries in diga - whereby the bride moves to the husband’s house or that of his parents - after the death of her father must transfer any immovable property she inherited from him to her brothers or binna-married sisters, upon their request for such property (16).

The Muslim Intestate Succession Ordinance, 1931:

  • Provides that the applicable law is that of the sect to which the party belongs.
  • With respect to almost all sects, female heirs inherit a lesser share than male heirs of the same degree of relationship to the deceased. A widow inherits half the portion that a widower would inherit. The mother of the deceased  is entitled to half of the share of the father of the deceased. Although daughters are not excluded from inheritance, they receive a smaller share than that of their brothers’ (16).

The Matrimonial Rights and Inheritance Jaffna Ordinance, 1911, amended in 1947:

  • If either spouse dies intestate, the surviving spouse’s share of thediatheddam, that is property acquired by either spouse during marriage using the couple’s shared funds or estate, remains his or her property. The surviving spouse receives half of the deceased’s share of thediatheddam by the surviving spouse. The other half of the deceased’s share devolves to his or her heirs (16).

Законодательство о земле

The Land Development Ordinance, 1935, amended in 1983 and 1996:

  • Regulates the alienation of State land.
  • Section 3: A Land Commissioner shall be appointed and shall be responsible for the general supervision and control of all Government Agents and land officers in the administration of State land and in the exercise of the powers conferred upon them by the Ordinance.
  • Section 19: Upon issuance of the authorization to occupy the land, a permit-holder shall pay the purchase amount as determined by the Land Commissioner in full in annual instalments within a period of ten years, together with the interest calculated at a rate not exceeding four percent.
  • However, where the permit-holder fails to make such full payment within the specified period, the Government Agent may extend such period for a further period of two years if the permit-holder satisfies the Government Agent that such failure was due to sickness, crop failure or other unavoidable cause.
  • A permit-holder shall be issued a grant in respect of the land he occupies, where he has paid all sums he is required to pay and if he has complied with all the other conditions specified in the Schedule to the permit.
  • Under Section 22, no State Land may be alienated to persons who are not citizens of Sri Lanka.
  • Section 29: All grants must be registered.
  • Section 35: The Land Commissioner may authorize the insertion of special conditions in grants.
  • Section 37: The condition included in a grant will run with the land and will bind the original owner and all subsequent owners who may acquire the title hence.
  • Section 39: No land alienated on a permit or grant shall be seized or sold in execution of the decree of any court.
  • Section 42: The owner of a holding may dispose of such holding to any other person except where it is prohibited by the Ordinance.
  • Sections 43 (1) and (2): The owner of a holder shall not lease to any persons or mortgage such holding except to the People’s Bank or the State Mortgage and Investment Bank.
  • Section 46: A permit holder shall not execute any disposition on the land alienated to him. However, he may mortgage his interest in the land alienated to him, with the written consent of the Government Agent
  • Section 106: If the permit holder fails to observe a condition of the permit, the Government Agent may require him to pay a fine. If the permit holder does not pay the fine or continues to fail in observing the conditions of the permit, the Government Agent may issue a notice that the permit will be revoked unless sufficient cause to the contrary is shown (18).

The Protection of Tenants Special Provisions Act, 1970, amended in 1984:

  • Section 2 prohibits landlords from using or threatening force or violence against tenants or persons in occupation of premises.
  • Section 5: No landlord shall eject a tenant from premises without a court order. The Land Commissioner may initiate a prosecution to verify if ejection has taken place according to the provisions of the law. The Land Commissioner may restore the use and occupation of land to the tenant, upon verifying that ejection has taken place in contravention of the law.
  • Section 7: The Commissioner may institute a prosecution in respect of any offence under this Act (18).

The Land Reform Law, 1972, amended in 1983 and 1986:

  • Section 2: Establishes a Land Reform Commission to ensure that no one owns agricultural land in excess of the ceilings and to take over land in excess of such ceiling.
  • Section 3 specifies that ceilings are: i. 25 acres for land consisting of paddy land only; ii. 50 acres for land not exclusively consisting of paddy land.
  • Section 4: If any person becomes the owner of agricultural land in excess of the ceilings, any such land shall be vested in the Commission and be considered to be under a statutory lease from the Commission to that person.
  • Section 6: The Commission has absolute titles over land vested in the Commission.
  • Section 14: Any person who becomes a statutory lessee under this law may within three months apply to the Commission for the transfer of such agricultural land to any child who is eighteen years of age or older or to a parent.
  • Section 15: Any statutory lease may be terminated by the Commission at any time. Otherwise, the lease shall last for one year and be renewed for another year.
  • Section 22:  Any agricultural land vested in the Commission may be used for any of the following purposes: i. alienation for agricultural development or animal husbandry; ii. sale exchange, rent to a person for the purpose of agricultural development; iii. sale to any person who owned agricultural land on the day immediately preceding the date of commencement of this Law,  or who was dispossessed of such land being under eighteen years of age at the time of the imposition of the ceiling; iv. construction of residential houses; v. for the establishment of a farm plantation managed by the Commission; iv. any public purpose.
  • Part IV provides for the establishment, constitution and functions of the Land Reform Commission, which shall exercise the following powers: i. acquire, hold, take or give on lease or hire, exchange, mortgage, pledge, sell or otherwise dispose of, any movable or immovable property; ii. carry out investigations, surveys and record data relating to agricultural lands; iii. conduct and encourage research into all aspects of land tenure and land reform; iv. establish and maintain branch offices for the purposes of the Commission; v. inspect any agricultural land; vi. direct and decide any matters connected with the administration of its affairs; vi. establish and manage its own fund.
  • According to the 1986 amendment, agricultural land shall not be alienated by the Commission to persons who are not citizens of Sri Lanka (18).

The State Lands Ordinance, 1949:

  • Section 2: The President may make grants, leases and other dispositions of State land and accept the surrender of any land according to the provisions of Parts I-VII.
  • Section 8: An instrument of disposition shall effect every disposition of State land. The instrument shall be signed and executed by the President in cases of State land granted or sold, or leased for a term exceeding the prescribed period; every other instrument of disposition shall be signed and executed by the prescribed officer  (18).

The Land Acquisition Act, 1950:

  • Establishes the procedure to be followed in case of the acquisition of land for public purpose (18).

The Registration of Title Act, 1998:

  • Section 2: A Commissioner of Title Settlement shall be appointed who shall be responsible for the due performance of the duties and functions assigned to him under this Act and such number of Deputies and Assistants as may be necessary.
  • Section 3: A Registrar-General of Title shall be appointed and shall maintain Title Registries in each district for the purpose of registration of title to lands situated in any area within such districts. A Registrar of Title to each such Title Registry shall operate under the direction of the Registrar-General of Title (18).

Меры в области политики/правовые механизмы, реализующие или препятствующие реализации земельных прав женщин

- The Women’s Bureau (WB), established in 1978, focuses on capacity building and economic empowerment programmes (17). The WB has supported the establishment of women’s societies to improve the socio-economic status of rural women. For instance, the Women Entrepreneurs Programme, aimed at forming women’s organizations in all districts, was established as a part of the Integrated Rural Development programmes (19).

- In 1993, the Government adopted the Women’s Charter, which aims at the realisation of gender equality in all areas of life in conformity with the constitutional provisions. Women of all communities were involved in the drafting of the Charter (17).

- The Government initiated a land titling pilot project in 1996. By March 1998 the Registration of Title Act was adopted and is now being implemented (19).

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