Sri Lanka, Democratic Socialist Republic of


*Please note this is just a draft and all contents are still under revision.*


Legal Table
Legal Text

Legal System/History

The legal system is based on a complex mixture of English common law and Roman-Dutch, Sinhalese, Muslim and customary law.

Dutch colonial administrators codified the rules of inheritance, marriage and divorce in order to facilitate the application of Muslim family law. This Code was preserved and adapted by the British after their defeat of the Dutch in 1799. The British later enacted the Registration of Muslim Marriages Ordinance 1896 repealing parts of the earlier Anglo-Dutch Code. The other major piece of legislation relating to Islamic family law is the Muslim Intestate Succession Ordinance 1931 still in force in Sri Lanka today. The 1896 Ordinance was in turn repealed by the post-independence Muslim Marriage and Divorce Act 1951, which essentially reinforces the principle that, in matters of personal status, the rights and duties of the parties involved are to be determined by the school of law to which the parties belong.

School(s) of Fiqh

Shafi’i majority, Hanafi minority; also Hindu and Christian minorities

Constitutional Status of Islam(ic) Law

 

Constitution adopted 16th August 1978. Article 9 falls short of establishing Buddhism as the state religion; rather, the provision gives Buddhism the "foremost place", making it the duty of the state to "protect and foster the Buddha Sasana". All religions are afforded Constitutional protection under Articles 10 and 14(1)(e) which guarantee personal freedoms.

Court System

Quazi Courts are judicial bodies with personnel appointed by the Judicial Services Commission. Appeals lie with the Board of Quazis and then to the Supreme Court.

Relevant Legislation

Muslim Intestate Succession Ordinance 1931

Muslim Marriage and Divorce Act 1951

also:

Muslim Mosques and Charitable Trusts and Waqfs Act 1956

Notable Features

Marriage Age: in general, the minimum marriage age is 18; for Muslims, the rule is that a girl must be 12 years of age or have a Quazi’s permission to marry before contracting into marriage

Marriage Guardianship: governed by classical law

Marriage Registration: penal sanctions for those in violation of mandatory registration requirements for marriage; failure to register does not invalidate the marriage

Polygamy: governed by classical law

Obedience/Maintenance: governed by classical law

Talaq: MMDA requires talaq to occur through the Quazi Courts, formalisation of reconciliation procedures as well as notification to the wife introduced by MMDA; if reconciliation process fails, Quazi may register the divorce after the expiry of three months from date of pronouncement of talaq

Judicial Divorce: formalisation of reconciliation procedures introduced by MMDA; if reconciliation process fails, Quazi and three assessors hear the case for divorce and decide according to the rules of the sect to which the parties belong

Post-Divorce Maintenance/Financial Arrangements: claims for maintenance or outstanding mahr must be commenced within three years of dissolution; court may specify that arrears may be awarded from date of claim

Child Custody: governed by classical law

Succession: governed by classical law

Law/Case Reporting System

Sri Lanka Law Reports

International Conventions (with Relevant Reservations) & Reports to Treaty Governing Bodies

ICCPR & ICESCR – accession 1980

CEDAW – signature 1980, ratification 1981

CRC – signature 1990, ratification July 1991

No reservations submitted to any of the above instruments

Legal History:

Sri Lanka has been subject to centuries of Portuguese, Dutch and British domination. From the time of independence in 1948, the legal system of Sri Lanka has developed into a complex mixture of English common law and Roman-Dutch, Sinhalese, Muslim, and customary law.

Under Dutch rule in the late eighteenth century, the colonial administrators codified the rules of inheritance, marriage and divorce law in order to facilitate the application of Muslim family law. Preference was given to customary usage and the provisions of the ‘Mohammedan Code’ over classical legal treatises. These special laws were preserved and adapted after the British defeat of the Dutch in 1799. The Code was initially applied only to the Muslims of the Province of Colombo, but its application was extended to the rest of the island by the late nineteenth century. Another piece of legislation, the Registration of Muslim Marriages Ordinance 1896, was enacted under the British, repealing parts of the earlier Code. The Muslim Marriage and Divorce Registration Ordinance 1929 replaced the 1896 legislation and further amended the Anglo-Dutch ‘Mohammedan Code’. The next item of legislation, the Muslim Intestate Succession Ordinance 1931, continues to be in force in Sri Lanka today, and the 1929 Ordinance was finally replaced by the post-independence Muslim Marriage and Divorce Act in 1951. The essential principle reinforced by the 1951 Act is that, in matters of personal status, the rights and duties of the parties involved are to be governed by the school of law to which the parties belong.

Schools of Fiqh: Sri Lankan Muslims mainly follow the Shafi’i or Hanafi schools. There are also Hindu and Christian minorities in Sri Lanka.

Constitutional Status of Islam(ic Law): The current Constitution was adopted on 16 August 1978. Article 9 falls short of establishing Buddhism as the state religion; rather, the provision gives Buddhism the "foremost place", making it the duty of the state to "protect and foster the Buddha Sasana," while assuring to all religions the rights enshrined in Articles 10 and 14(1)(e) of the Constitution. Those articles guarantee every person freedom of thought, conscience and religion, including the freedom to profess or adopt a religion or belief of his/her choice, and guarantee all citizens the freedom to manifest their religious beliefs in worship, observance, practice and teaching. These are the only provisions expressly relating to religion and implicitly to minority rights. No change to these provisions is put forward in the draft Constitution tabled in 1997. The draft has been the subject of heated debate but is unlikely to be passed into law in the near future due to the current composition of the parliament.

Court System: The Muslim Marriage and Divorce Act 1951 constitutes the main body of legislation relating to the application of Muslim family law, and also regulates the functions, qualifications and powers of the Quazi Courts applying that law. Quazi Courts are staffed by judges (quazis) appointed by the Judicial Services Commission. Male Muslims of good character and position and suitable attainments are eligible for appointment as Quazis. Appeals from the Quazi Courts lie with the Board of Quazis, then with the Court of Appeal and ultimately with the Supreme Court. A board of three judges is required to hear appeals to the Board of Quazis. The Board’s other function is to furnish the Registrar-General or any Quazi that request such advice with a written opinion on any question of Muslim law that may arise in relation to the administration of the MMDA. The MMDA also delineates the limits of jurisdiction between the civil judicial system and the Quazi courts, as well as the powers of the Quazi. He has exclusive jurisdiction over the adjudication of mahr or maintenance claims, mediation between spouses upon application, adjudication of decrees of nullity, and a number of other administrative and judicial matters relating to Muslim personal law.

Notable Features: There is very limited legislation relating to Muslim personal status in Sri Lanka, following the characteristics of the application of Muslim personal law elsewhere in South Asia in that much of Muslim personal law remains uncodified. The legislation that does apply is largely of an administrative nature, and does not necessarily alter or reinterpret many of the substantive classical provisions of Islamic family law.

The Muslim Marriage and Divorce Act 1951 regulates matrimonial law for Muslims. The Act repealed the Muslim Marriage and Divorce Registration Ordinance 1929 and has been revised a number of times since its passage.

In 1995, the minimum age of marriage was raised to 18.  However, the marriage age for Muslims is governed by the Muslim Marriage and Divorce Act, allowing for a girl to marry as young as 12 without the permission of a Quazi, and younger with the Quazi’s permission after any such inquiry as he may deem necessary. With respect to capacity, the Act states that for any Shafi’i woman, no contract of marriage is valid under the law applicable to that sect unless her rightful wali is present at the time and place at which the contract is entered into and he communicates her consent to as well as his own approval of the contract. No person may knowingly act as a wali unless he is entitled to do so under the law governing the sect to which the bride belongs, and no marriage for which a person acts as a wali in contravention of that provision can be registered. The Quazi may inquire into any complaint by a woman against a wali who unreasonably withholds his consent to her marriage, and authorise the marriage and dispense with the necessity for his presence or consent if he rules in favour of the woman. He may authorise marriage in cases where a woman has no wali as well. The MMDA makes registration upon conclusion of the nikah mandatory and shares the responsibility of registration between the bridegroom, the wali of the bride (if a wali is required by the law governing the sect to which the bride belongs) and the person conducting the nikah ceremony. Nothing in the act renders an unregistered marriage or divorce invalid, so long as the marriage or divorce is valid according to the sect to which the parties belong. Every person responsible for registering a marriage or divorce who fails to do so is liable to a fine upon the first offence, and a fine or imprisonment or both for additional convictions.

The MMDA also requires notification in the event of a Muslim male wishing to enter into a polygamous marriage.  He must give notice of his intention to the Quazis of the area where he resides and the area where his wife (or wives) resides, as well as to the Quazi of the area where the intended bride resides at least thirty days before contracting the subsequent marriage. The notice provided to the Quazis, in a prescribed form, must contain the full names and address of the husband and all prospective co-wives. It is the duty of each of the Quazis to whom notice is given to post such notices at the Jumma (Friday) mosques within his area and in a "conspicuous place" at each address within his area that is specified in that notice. No polygamous marriage can be registered under the Act if the husband fails to go through this process before contracting the second or subsequent marriage.

The MMDA provides detailed rules regarding the registration of divorce by the husband and the wife. A husband who "intends to pronounce the talaq on his wife" shall give notice to the Quazi of the area where she is resident, and the Quazi’s duty is to attempt to effect a reconciliation, with the help of the relatives of both parties, as well as elders and influential Muslims of the area. If within thirty days no reconciliation is effected, the husband shall pronounce the talaq in the presence of the Quazi and two witnesses and the Quazi shall record the pronouncement and cause notice of it to be served to the wife if she is not present; the "alleged reasons" for which the husband seeks to divorce his wife are not to be recorded by the Quazi. It is the Quazi’s duty, where conciliation proceedings have failed, to recover any unpaid mahr from the husband, whether or not the wife has claimed her outstanding dower debt. The remaining dower due her is deposited with the court in the name of the wife and the wife is served notice that such money is deposited in her name. If the husband does not appear on the dates he was called before the Quazi for the reconciliation process, the Quazi may, at any time after the expiry of three months from the date of the pronouncement of talaq, and upon the oath or affirmation of the wife, register the divorce.

The Act also outlines the procedure the Muslim wife must follow to effect a divorce from her husband, without his consent, on grounds of ill-treatment or on account of any act or omission on his part which amounts to a ‘fault’ under the Muslim law governing the sect to which the parties belong. In such cases, the Muslim wife must apply for divorce to the Quazi of the area in which she is resident. The Quazi convenes a panel of three Muslim assessors to hear the application, and they must endeavour to effect an amicable settlement and remove the cause of the conflict between the husband and wife. If reconciliation efforts fail, the Quazi and the assessors proceed to hear the case for divorce and a decision is made according to the sect of the parties. (There is no provision relating to cases where the parties belong to different sects.) After the appealable time elapses, if there has been no appeal of the order of the Quazi allowing the divorce, or if the Board of Quazis or the Court of Appeal has decided to allow a divorce upon appeal, the Quazi shall register the divorce.

The MMDA contains provisions relating to maintenance, mahr and kaikuli.* The time for the prescription of a suit or action for a woman’s mahr (in whole or part), shall not begin until the dissolution of the marriage by death or divorce, and such suit or action must be commenced within three years from the date of such dissolution. The Act does not specify regulations for a woman claiming maintenance from her husband during the subsistence of their marriage, though there is explicit mention of the Quazi’s powers to examine and decide upon claims by wives or divorced wives for kaikuli or lying-in expenses. The court may specify that maintenance arrears may be awarded from the date of the claim.

The Muslim Intestate Succession Act 1931 directs that the estate of any Muslim who dies intestate and who resided in Sri Lanka or owned any immovable property there at the time of his or her death shall devolve according to the Muslim law of the sect to which the deceased belonged. The same is the case for any donations (not involving usufructs and trusts) made by Muslims domiciled in Sri Lanka or owning immovable property there.

Law/Case Reporting System: Supreme Court and Court of Appeal decisions are published in Sri Lanka Law Reports.

International Conventions & Reports to Treaty Governing Bodies: Sri Lanka signed the CEDAW in 1980 and ratified it in 1981.  

Sri Lanka acceded to the ICCPR and ICESCR in 1980.

Sri Lanka signed the CRC in 1990 and ratified it in 1991.

Sri Lanka did not submit any reservations or declarations upon signature, ratification or accession to any of the above instruments.

Background and Sources: Goonesekere, "Sri Lanka" in Lawasia Family Law Series, Watson & Sihombing, eds. Singapore, 1979; Mahmood, "Sri Lanka" in Statutes of Personal Law in Islamic Countries, 2nd ed., New Delhi, 1995; Tambiah & Markhani, eds., Muslim Law in Sri Lanka, Colombo, 1996; Redden, "Sri Lanka" in Modern Legal Systems Cyclopedia, vol. 9, Buffalo, N.Y., 1990; Robinson, ed. The Cambridge Encyclopaedia of India, Pakistan, Bangladesh, Sri Lanka, Nepal, Bhutan and the Maldives, Cambridge, 1989.