SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

embraced the complainant and asked her to kiss his genitalia. At this point the Bribery
Officers walked in and arrested the accused. The accused was indicted under the Bribery Act
for soliciting and attempting to accept a gratification (i.e. sexual intercourse) with the
complainant, as a reward or inducement for arranging a transfer.
The accused was found guilty at trial and sentenced to nine years rigorous imprisonment. He
appealed to the Court of Appeals. The court observed that Section 90 of the Bribery Act
defined ‘gratification’ to include among other things, any service, favour or advantage of any
description whatsoever. It held that ‘gratification’ was used in its larger sense as connoting
anything “which affords satisfaction or pleasure to the taste, appetite or the mind. The craving
for an honorary distinction or for sexual intercourse is an example of mental and bodily
desires, the satisfaction of which is gratification which is not estimable in money.” It found
the accused guilty of gratification under the Bribery Act and upheld the conviction.
There has been significant progress in recognizing the need for those facing sexual
harassment to have legal recourse in the research countries. In particular, the courts have used
expansive interpretation and borrowing human rights principles from international treaties
such as Convention on Elimination of All Forms of Discrimination Against Women, they have
laid down clear, salutary guidelines on sexual harassment, particularly in the workplace.
Through the judgment in Vishaka’s case in India, this area of jurisprudence has also
witnessed the use of precedent beyond national boundaries, particularly in relation to South
Asia. It remains to be seen whether national governments whose high courts have laid down
these judicial decisions will follow with concrete legislation, as has been done in Nepal.
1.6 Access to adoption (same sex couples, single persons)
The general law of adoption in Sri Lanka is the Adoption of Children Ordinance, 1941.
Although it does not envisage adoption by same-sex couples (Sri Lankan law does not
recognise such relationships whether they are marital or not) this law does permit adoption by
individual applicants 105 . The limits placed on any applicants (including sole applicants) are
that the applicant should be over 25 years of age and at least 21 years older than the child to
be adopted. 106 Additionally, a male sole applicant is prohibited from adopting a female child
“unless the court is satisfied that there are special circumstances which justify the making of
an adoption order.” 107
Adoption in India, till recently fell within the domain of personal law and was determined
based on the religion of the person. Consequently only Hindus in India were allowed to adopt
(under the Hindu Adoptions & Maintenance Act, 1956) whereas non-Hindus could only
become guardians and wards under the Guardians and Wards Act, 1890. 108 Guardianship
confers rights and duties on the guardian to take care of the person and property of a minor
until the minor reaches majority and therefore cannot be considered on par with parenthood
through adoption and children in guardianship are therefore not accorded the same legal
status as biological or legally adopted children. However, the Bombay High Court radically
departed from this limitation when it delivered a far-reaching judgment in which it
acknowledged that under personal laws the petitioners, as Christians, were not allowed to
adopt, but there existed a fundamental right to life of an abandoned child, which included the
105 Sections 2 & 3, Adoption of Children Ordinance, 1941 (Sri Lanka)
106 Section 3, ibid.
107 Sections 3(2), ibid.
108 Hindus may also become guardians under the Hindu Minority and Guardianship Act, 1956 (India)
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