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

prove, on evidence, which would not admit of any reasonable doubt, that he had no access. It
pointed out that the word "access" had been the subject of interpretation in several cases – in
some it was held to mean "actual intercourse", in others it was interpreted as meaning no
more than opportunity of intercourse. It held that the word "access" connoted not only actual
intercourse but also personal access under circumstances which raise the presumption of
actual intercourse. Mere opportunity of intercourse, under circumstances which do not raise
the presumption of actual intercourse, would not be "access" within the meaning of Section
112. Based on the evidence placed before it the court held that the husband could not have
had access to the wife at the time the child was conceived. On this basis it denied the wife’s
claim of maintenance for the child. Regarding the claim of maintenance for herself the court
pointed out Section 2 of the Maintenance Ordinance which provided that a wife living in
adultery could not claim maintenance from the husband. Given that the wife in this case had
had the child out of wedlock the court held that she was therefore living in adultery and could
not claim such maintenance.
Marriage laws in Thailand are governed by the Civil and Commercial Code. The code
covers all matters related to marriage including betrothal, age of marriage, nuptial
agreements, consent, separation, divorce, property, succession and so on. While the
provisions of the code are largely equitable, it does contain some discriminatory aspects
including those related to grounds of divorce. Thus adultery by the woman is a ground of
divorce but for the man it is only when he has given maintenance or honoured another
woman. The code also severely limits the ability of widows to remarry. For certain areas, the
Act on the Use of Islamic Law in the Provinces of Pattani, Narathiwat, Yala and Satun, B.E.
2489 (1946) 223 is also applicable.
The right to marry and bear children is specifically recognized in Indonesia’s Law on Human
Rights, 1999. 224 This law further recognizes the principle of equality in marriage in its
provisions on womens rights and states that a wife and husband have equal rights and
responsibilities with regard to all aspects of marriage, contact with their children (including
on dissolution of the marriage subject to the best interests of the child), and rights to joint
control of assets (including on dissolution of the marriage without undermining children’s
rights.) 225
The marriage law in Indonesia was largely consolidated through the Law on Marriage, 1974.
The Elucidation of the Law on Marriage also states the principle of equality between the
sexes in marriage. Indeed the law specifies the same grounds for annulment or divorce by
223 “Thailand allows the application of Muslim Personal Law in relation to the matters of marriage, divorce and
inheritance in the four Muslim majority southern provinces of Pattani, Yala, Narathiwat and Satun through the
court. Islamic law is applied in the court through a Muslim judge or Dato Yuthitham who participates in the trial
and adjudication on cases and on points of Islamic law and has a power of casting vote. Thai Muslims in the
other provinces of the country apply the Muslim personal law either privately or through the provincial Islamic
committees.” Many Faces of Islam, Imtiaz Yusuf, Bangkok Post, 10.07.09. Also “Another interesting thing to
note is that the Shari'ah Court judge in Thailand is known as Dato' Yuthitham who is appointed by the Ministry
of Justice” Shari'ah Court Judges and Judicial Creativity (Ijtihad) in Malaysia and Thailand: A Comparative
Study
http://www.informaworld.com/smpp/1109480985-36036884/content~content=a910443213&db=all.
However the authors were unable to obtain a verified English translation of this law to analyse for this paper.
224 Article 10(1), Law on Human Rights, 1999 (Indonesia)
225 Article 51, Ibid.
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