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

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elsewhere in Sri Lanka. And Muslim Special Laws apply to all Muslims in Sri Lanka. Apart from these main sources of personal law, Sri Lanka is also governed by English common law and Roman-Dutch law. Sri Lankans can also choose to marry under the Marriage Registration Ordinance, 1907 and would be governed by Roman-Dutch Law in matters relating to marriage, divorce, and interstate succession. 208 The Marriage Registration Ordinance, 1907 (subsequently amended on several occasions) consolidates and governs marriages of all persons in Sri Lanka save Muslims (Kandyans too have a specific statue for this purpose, although they may also marry under this Ordinance). Although it does not make registration of marriages mandatory, it contains provisions for registration of marriages and prescribes a procedure for that purpose. It further stipulates the minimum age of marriage 209 , prohibited degrees of relationship for those who wish to marry 210 and punishes those who violate this stipulation 211 , and prohibits bigamy. 212 The Kandyan Marriage & Divorce Act, 1952 also stipulates prohibited degrees of relationship for those who wish to marry 213 and also prohibits bigamy. 214 Although it prohibits marriages below a lawful age, this Act makes exceptions in cases where one or both parties were under age but had cohabited for at least a year after attaining lawful age or if a child is born to them before they attain lawful age. 215 Apart from requiring registration of marriages this Act also provides a procedure for registration of divorce. It also provides grounds for divorce, which demonstrate a clear inequity between males and females: whereas a wife can seek divorce from her husband by proving adultery coupled with incest or gross cruelty on his part a husband needs to only show adultery to obtain divorce from his wife. 216 The Marriage Registration Amendment Act, 1995 has brought changes to both the Marriage Registration Ordinance, 1907 and the Kandyan Marriage & Divorce Act, 1952 by stipulating the minimum age of marriage for both males and females to be 18 years. The Muslim Marriage & Divorce Act, 1951, which governs Muslims in Sri Lanka does not stipulate a minimum age for marriage. It requires the registration of all Muslim marriages and lays out procedures for the same as well as registration of divorce. At the same time it stipulates that a marriage shall not be considered invalid merely on the ground that it was not registered. 217 The law also stipulates punishment for Muslims who enter into incestuous relationships within or outside marriage. 218 However, it recognises the right of Muslim males to enter into polygamous marriages. 219 Higher courts in Sri Lanka have passed several significant judgments related to marriage which impact on women’s rights. In Soosaipillai v Parpathipillai 220 the Court of Appeal had 208 Tambimuttu, Aquinas V., ‘Sri Lanka: Legal Research and Legal System’, Hauser Global Law School Program, New York University School of Law, January 2009, http://www.nyulawglobal.org/globalex/Sri_Lanka.htm 209 Section 15, Marriage Registration Ordinance, 1907 (Sri Lanka) 210 Section 16, ibid. 211 Section 17, ibid. 212 Section 18, ibid. 213 Section 5, Kandyan Marriage & Divorce Act, 1952 (Sri Lanka) 214 Section 6, ibid. 215 Section 4, ibid. 216 Section 32, ibid. 217 Section 16, Muslim Marriage & Divorce Act, 1951 (Sri Lanka) 218 Section 80, ibid. 219 Section 24, ibid. 220 1985. Citation not available, however, authors have access to full text of judgment. 64
to consider the case of a woman seeking maintenance for herself and her child from a man who she claimed was her husband due to the fact that they had undergone a customary Kalam marriage ceremony in the presence of friends and relatives after which they had lived together and were accepted by members of the community in which they lived as wife and husband. The man denied the marriage and paternity. In upholding the right of the woman to maintenance, the court held that where a man and woman are proved to have lived together as man and wife the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage. Additionally, as to what constitutes a valid customary marriage the court held that it must necessarily vary from region to region, community to community and race to race and depending on the affluence of the parties even within the same group there could be varying degrees of elaboration and embellishments in the ceremonies constituting marriage. But some minimum ritual would be necessary by way of constituting the bare essentials of a valid customary marriage. In the present case it was the ceremonial partaking of a common meal of rice and seven vegetables before the relations. It follows that this ceremony of thus bringing together the parties was a ceremony of valid marriage; no ceremony is prescribed for embarking on concubinage. In Jonathan Joseph v. June de Silva 221 the Court of Appeal examined a case related to a claim of damages made by a woman that the appellant man ‘deflowered’ her on the promise of marriage but failed to marry her. Her case was that she was a virgin at the time. The man failed to give evidence in the District Court countering the woman’s case. The court held that a seduction case must be decided on the preponderance of evidence. The failure of the man to refute on oath the testimony of the woman given on oath can be treated as corroboration depending on the circumstance of the particular case, for instance where there is no evidence of sexual promiscuity on the part of the woman. In Wijesundera v Wijekoon 222 the Court of Appeal considered the issue of the presumption of legitimacy of a child born during the continuance of a valid marriage. Here the wife claimed maintenance for herself and her child whereas the husband admitted marriage but denied paternity. The woman’s case was that she resided with the husband from the date of their marriage for 14 months after which she returned to her parents’ home to deliver her child. She gave birth to the child 2 months later. The husband claimed that on the night of the day of their marriage he discovered that she was not a virgin and made a complaint thereafter to the village board. The woman explained how she lost her virginity and soon afterwards was taken back to her village and returned to her parents. The court stated that in such a case, where marriage was admitted and the birth of the child during the continuance of the marriage was proved, the question that arose was whether the man had shown that he had no access to the mother at any time when the said child could have been conceived. Section 112 of the Evidence Ordinance would be applicable in such a situation, which provided that it is conclusive proof that the husband is the father of the child because the child was born during the continuance of a valid marriage, unless he shows that he had no access to the wife at the time the child could have been begotten or that he was impotent: The court held that in view of the said presumption created by the section the wife is entitled to rely on it to prove the paternity of the child. The burden would be on the husband to disprove the said presumption. The court went on to state that the presumption of legitimacy was rebuttable only by adducing cogent, clear and convincing evidence. This would in effect mean that the man must 221 1990. Citation not available, however, authors have access to full text of judgment. 222 1990. Citation not available, however, authors have access to full text of judgment. 65
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THE INTERNATIONAL COUNCIL ON HUMAN
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6. ACCESS TO HEALTH SERVICES IN REL
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ABBREVIATIONS AIDS ART ARV CEDAW CE
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in the regional reviews. This is a
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provide for information and distrib
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B. METHODOLOGY In keeping with the
Page 13 and 14: elevant and key laws and judgments;
Page 15 and 16: The inability of many sexually stig
Page 17 and 18: Equality irrespective of a person
Page 19 and 20: The centrality of women’s rights
Page 21 and 22: social standing, religious belief,
Page 23 and 24: according to the physical condition
Page 25 and 26: Constitutional Court in The Nationa
Page 27 and 28: protections or statutory law. There
Page 29 and 30: However it also noted that every Ri
Page 31 and 32: concerned with declaring that the h
Page 33 and 34: without guaranteeing the personal p
Page 35 and 36: to enlarge the meaning and content
Page 37 and 38: a concept has wider dimensions than
Page 39 and 40: Such conduct mentioned in clauses (
Page 41 and 42: embraced the complainant and asked
Page 43 and 44: does not sever the ties between the
Page 45 and 46: The potential recognition of same-s
Page 47 and 48: Similarly, seeking out sex educatio
Page 49 and 50: condom). Across such laws, the defi
Page 51 and 52: jurisdictions. Nepal, a country wit
Page 53 and 54: the conviction of the accused for s
Page 55 and 56: with an unmarried woman is not puni
Page 57 and 58: physical characteristics (virginity
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Page 61 and 62: The opinion of the National Commiss
Page 63: was married to she would acquire im
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Page 69 and 70: female who has not attained 12 year
Page 71 and 72: Article 16 of the Universal Declara
Page 73 and 74: In Bangladesh, polygamy is allowed
Page 75 and 76: immovable property. The above propo
Page 77 and 78: consummation of marriage. The incap
Page 79 and 80: Violence, especially sexual violenc
Page 81 and 82: gender norms which many remand home
Page 83 and 84: female or a female to a male. It in
Page 85 and 86: from other forms of inequality as w
Page 87 and 88: c. Whereas victims of violence in h
Page 89 and 90: courts. 350 According to the Commis
Page 91 and 92: The Act provides for the appointmen
Page 93 and 94: Rani 383 it was held that a shared
Page 95 and 96: The Act specifies imprisonment of 6
Page 97 and 98: property jointly or separately held
Page 99 and 100: upees or the amount of the dowry wh
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Page 103 and 104: Addararachchi 439 the court conside
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Page 109 and 110: In holding that there was no justif
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consensual sexual activity with you
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The fined amount is to be given to
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the State and its citizens is one o
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every person “the right against e
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The law also includes the right of
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eing committed. 570 While prosecuti
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Broader provisions related to child
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in order to engage the child in suc
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her.” 631 A person is deemed to h
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that they are denied the fundamenta
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Indonesia’s Constitution recognis
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In Thailand too, abortion is illega
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With regard to the first question,
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Further, any pregnant woman may vol
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childbearing age to establish a hea
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Government could not be held liable
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among those in the reproductive age
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Members' right to protect public he
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7. INFORMATION, EDUCATION AND EXPRE
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education as well as non-discrimina
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The exchange of information through
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community.” 727 In each case, the
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Nepal’s Interim Constitution limi
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Sections 292, 292A, 293 and 294 of
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“...any interpretation of 'obscen
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“1 (a) Condones or extenuates act
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In Thailand, places of entertainmen
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8. SEX WORK This section examines h
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The use of raids, and exemptions fr
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clients or make an offer for a sex/
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and non-rehabilitative juvenile jus
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“In view of the aforesaid proposi
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person who commits the act are of t
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as parent or guardian has given his
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with one) on the charge that it was
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for sex workers while emphasizing t
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19. Azimuddin v State of Uttar Prad
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1. Acid Control Act, 2002 2. Acid-O
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13. Intellectual Property Act, 2003
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