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Common law of divorce in Sri Lanka is Roman Dutch Law; divorce can be claimed on three grounds, adultery, malicious desertion and incurable impotency at the time of such marriage
There was an article published under the name Cat’s Eye titled ‘Divorce law in Sri Lanka: Fostering animosity, not relationships’ on 11 July (http://www.ft.lk/columns/Divorce-law-in-Sri-Lanka--Fostering-animosity--not-relationships/4-658793).
While agreeing with the writer/s, the intention of this article is to investigate this issue in a different point of view. Law of a country is based on the values and cultural traits of that country. In Sri Lanka during the colonial period certain values and cultural traits were imposed on us and the present society is ignorant of this fact. To start the discussion on marriage and divorce law, the best evidence could be given by Robert Knox.
Robert Knox
Robert Knox has written a book, ‘An Historical Relation of Ceylon,’ published in 1681 in London describing his experience in captivity in Ceylon from 1660 to 1679 during the time of King Rajasinghe II in Kandyan kingdom. In Chapter VII of Part 3 under the title ‘Of their lodging, bedding, whoredom, marriages and children,’ Knox stated as follows:
“Where their houses consist but of one room, the children that are of any years always go and sleep in other houses among their neighbours. Which please them better than their own. For so they come to meet with bedfellows, nor doth it displease the parents, if young men of as good quality as themselves become acquainted with their daughters, but rather like well of it…….So that youth are bred up to whoredom. Indeed here are no publick whores allowed by authority……but in private few or none can exempt themselves.”
“To fetch wood out of the woods to burn, and to fetch home the cattle is the woman’s work. If they cannot have their opportunities at home, now they appoint their meetings, while the husband stays at home holding the child.”
“It is a law here that if a man catch another in bed with his wife, he may, be it whatsoever, kill him and her, if he please.”
“In some cases the men will permit their wives and daughters to lye with other men. And that is, when intimate friends or great men chance to lodge at their houses, they commonly will send their wives or daughters to bear them company in their chamber. Neither do they recon their wives to be whores for lying with them that are as good or better than themselves.”
“They do not matter or regard whether their wives at the first marriage be maids or not. And for a small reward the mother will bring her daughter being a maiden unto those that who desire her.”
“But their marriages are but of little force or validity. For if they disagree and mislike one the other; they part without disgrace.”
“Both women and men do commonly wed four or five times before they can settle themselves to their contentation. And if they have children when they part, the common law is, the males for the men, and the females for the women.”
“In this country each man, even the greatest, hath but one wife; but a woman often has two husbands. For it is lawful and common with them for two brothers to keep house together with one wife, and the children do acknowledge and call both fathers.”(eka geyi kema)
Knox’s English mentality based on his cultural traits could not digest the liberality of the sexual relationships prevailed at that time in Ceylon. Therefore, he said that this was nothing but whoredom. It is interesting to note that there was no importance given to chastity of women prior to the marriage.
Sharing their wives and daughters with the noble visitors shows that the extent they have liberalised their sexual relationships. Divorce also was very liberal since there was a disagreement they part without disgrace. Now all of us view the relationships maintained by our ancestors in the same surprising and condemning way Robert Knox looked at them.
Niti Nighanduwa
During the Kandyan era Niti Nighanduwa was written describing the code of Kandyan law. Harishcahndra Wijayatunga who did a critical analysis of the book believed it was written under the Kandyan kingdom prior to 2 March 1815 at Senkadagalapura between 1769 and 1815. In addition to Diga and Binna marriages and eka geyi kema, there was a marriage type called associated marriage- samagi vivaha – described in Niti Nighanduwa where few men marry few women and they live altogether.
Regarding the divorce the law was very liberal. Either the husband or the wife can disengage from the marriage bond. At the marriage the ownership of the properties of the husband and wife were kept separately with them. The wealth earned by both would be divided equally at the time of disengagement.
If the disengagement of the marriage is executed by one party then that party does not have any right of the assets of the other party. However if there are children and if they are not independent father should maintain the children. If the disengagement is on the wish of the husband and if the wife is pregnant at that time he should maintain the wife for six months but if the husband wants to keep the marriage and the wife wants to disengagement she is not entitle for the maintenance.
Niti Nighanduwa gives a detailed account of the family law prevalent during that time.
Kandyan Marriage and Divorce Law
Inhabitants of the Kandyan districts which were not colonised until 1815 were governed by Kandyan law in marriages and divorces at present. According to Kandyan Marriage and Divorce Law, the dissolution of the marriage can be granted on any of the following grounds.
These provisions go in line with the social behaviour described by Knox. However the law is less liberal compared to the provisions of the Niti Nighanduwa and more liberal compared to the Roman Dutch law.
Present divorce law in England and Netherlands
In England and Wales divorce is allowed on the ground that the marriage has irretrievably broken down. The Matrimonial Causes Act 1973 specifies that the marriage may be found to have irretrievably broken down if one of the following is established:
In the Netherlands there are three types of formal union: marriage, a registered partnership and a living together agreement. They all apply to both heterosexual and same-sex couples. Divorce is always on the legal grounds of ‘irretrievable breakdown of the marriage’.
There is generally no requirement to define or prove this. It is, however, possible for the other spouse to contest the divorce claim in the proceedings before the District Court or the Court of Appeal. Although, in general the Dutch judge will grant the divorce request since it is typically not accepted to force marriage without possible dissolution.
Roman Dutch Law
Common law of divorce in Sri Lanka is Roman Dutch Law. Divorce can be claimed on three grounds, adultery, malicious desertion and incurable impotency at the time of such marriage. The Cat’s Eye article mentioned the third point simply as impotency but according to the law it should be prevalent at the time of the marriage and it should be incurable. Therefore as pointed out in the article it is extremely difficult to get a divorce under the Common Law of Sri Lanka. However this law is drastically different to the divorce law described in Niti Nighanduwa and present Kandyan Divorce law.
Roman Dutch law was introduced and may be modified by the Dutch and English colonial masters respectively. The values of those cultures prevalent at those times would have been reflected in the laws introduced by them.
Marriage was viewed as a sacred act by the Christians. Christian marriage is a union between a man and a woman, instituted and ordained by God, for the lifelong relationship between one man as husband and one woman as wife. This expectation of the life long relationship was being reflected in the Roman Dutch divorce law. Those societies were changed tremendously after the period they colonised Sri Lanka and those changes are reflected in the present divorce law of England and the Netherlands.
The tragedy is that we Sri Lankans think that the values, prevailed in the Europe during the Victorian era (Queen Victoria 1837-1876) and the pre-Victorian era which were imposed on us by the colonial masters, are our values prevailed in this country for 2,500 years. We fight to preserve those values against the imported Western culture. Those Western cultures were changed a lot from the Victorian values to suit the modern era. Ironically the current Western culture and values of marriage, divorce and sexual relationships are closer to the culture of marriage, divorce and sexual relationships during the Kandyan era of Sri Lanka.
At the end of the article of Cat’s Eye the writer/s ask the following questions in relation to the reformation of the existing Roman Dutch Divorce law:
“It is more interesting to understand where the resistance lies to this long-standing reform agenda. Is it the political leaders held hostage by conservative, patriarchal or religious views? Is it the legal profession itself? Or is the political and legislative system of this country engaged in anything but meeting the expectations of its people?”
People by and large do not expect these reforms since reforms would go against their perceived cultural values. Majority of them are Sinhala Buddhists and most of them are nationalists. These Nationalist Sinhala Buddhists trying hard to preserve the colonial Christian values thinking that those are their age old values. What an irony?
