Author name: Nikeshala Kaluthanthri

Key Takeaways If you’re navigating a complex family situation and wondering, “Can I claim maintenance?” or “Am I obligated to pay maintenance?”, you’re not alone. Maintenance is a critical area of law that directly affects spouses and children. Here’s a practical guide to help you understand how Sri Lankan maintenance laws apply to your situation. What is Maintenance? Contrary to popular belief, maintenance isn’t just about handing over money. It’s about providing essentials like food, housing, medical care, and other necessities. Historically, under Roman-Dutch Law, the responsibility to maintain one’s family was heavily tilted toward the husband, with the wife stepping in only in extraordinary situations like when the husband was gravely ill. However, modern Sri Lankan laws have reshaped this perspective, making maintenance a shared duty and ensuring equality. The Maintenance Ordinance No. 18 of 1889 established the initial framework for regulating maintenance claims in Sri Lanka, while the Maintenance Act No. 37 of 1999 brought significant modernization to the law, emphasizing a more gender-balanced approach. Spouse Maintenance: Can You Claim It or Must You Pay It? If you’re married, either spouse can claim maintenance if they are unable to support themselves. However, there are specific conditions: For an example, a husband who earns a stable income but fails to provide financial support to his unemployed wife can be ordered by the court to pay her maintenance. For an example, a wife claiming maintenance may be denied if she’s found to be in a relationship with someone else or if she refuses to live with her husband without valid reasons. If you’re unsure whether you qualify to claim or are obligated to pay maintenance, it’s essential to evaluate your financial situation and consult a legal professional. Children and Maintenance: Who Is Responsible? Parents have a legal duty to support their children, whether marital, non-marital, or adopted, until the children can sustain themselves. The law also extends this responsibility to: A father with sufficient income cannot deny maintenance for his child, even if the mother is financially well-off. For non-marital children, parentage must first be established with sufficient evidence to claim maintenance. Bringing the Law to Life: Key Cases The courtrooms of Sri Lanka have witnessed pivotal cases that breathe life into the legal text. Here are some that stand out: These cases showcase how the law adapts to individual circumstances, ensuring justice for all.

Key Takeaways In Sri Lanka, the law regarding claims for damages due to adultery by a third party has long been complex, with these claims traditionally tied to divorce proceedings. The principle roots from Roman-Dutch law, which Sri Lanka continues to recognize, allowing spouses to seek compensation from a third party if adultery is proven. However, recent landmark judgments have redefined the boundaries of this law, enabling spouses to claim damages from a third party without necessarily pursuing divorce. Case Laws In the significant case of S.C. Appeal 10/2018, the Supreme Court of Sri Lanka clarified the right of a spouse to seek damages without filing for divorce. The case began when Alles Dilkush Chandrani Bernedette filed for divorce in the Hatton District Court, citing desertion by her husband, Velu Sridharan, and requested alimony and child custody. In response, Sridharan contested the claim, denying desertion and instead accused Bernedette of engaging in an adulterous relationship with a co-defendant, Mohamed Hisham Faiz. Sridharan alleged that this extramarital relationship was the real cause of the marital breakdown, and sought Rs. 1,000,000 in damages from Faiz for the harm caused to his marriage. The District Court dismissed Bernedette’s divorce claim but ruled in favor of Sridharan’s damages claim, ordering Faiz to pay Rs. 500,000 in damages. This judgment was upheld by the Civil Appellate High Court in Kandy. Faiz subsequently appealed to the Supreme Court, arguing that Sridharan could not claim damages from a third party without seeking a divorce on the grounds of adultery. However, the Supreme Court held that Sri Lankan law allows a spouse to seek damages from a third-party adulterer without the requirement of filing for divorce. The Court found no issue with combining the damages claim with the ongoing divorce proceedings, affirming that a third-party could be held financially liable for damaging a marriage, even if the harmed spouse does not pursue divorce. Consequently, Faiz’s appeal was dismissed, and he was ordered to pay the damages. Implications of the Supreme Court Ruling This judgment is groundbreaking as it establishes a precedent for spouses to hold third-party adulterers accountable through financial claims, irrespective of divorce proceedings. Key takeaways from the case include: 1. Accountability for Third-Party Adulterers: The ruling reinforces the principle that a third-party who contributes to the breakdown of a marriage can be held financially liable for damages caused. This reflects an adherence to the principles of Roman-Dutch law, which stresses personal responsibility and restitution. 2. Damages Without Divorce: By permitting claims for damages independent of divorce proceedings, the judgment provides greater flexibility and legal recourse for those harmed by infidelity. This allows a spouse to seek justice without necessarily pursuing divorce, which may be especially relevant for individuals who wish to preserve their marriage or avoid the legal, emotional, and social implications of a formal divorce. 3. Setting a Legal Precedent: This ruling is a precedent in Sri Lankan law, clarifying that damages claims against third-party adulterers are legitimate and actionable outside the traditional framework of divorce. Future cases involving marital breakdowns and third-party involvement may reference this case as a guiding decision, potentially expanding the scope of spousal claims in similar disputes. 4. Broader Options for Marital Disputes: The judgment opens up an additional legal pathway for individuals seeking redress in marital conflicts, offering a solution that other jurisdictions may not recognize. It acknowledges the emotional and relational harm caused by infidelity, even if divorce is not pursued. International Perspectives on Third-Party Adultery Claims Different jurisdictions vary widely in their approach to third-party claims of adultery: – England : English law does not allow for damages claims against an adulterous third party. Adultery is grounds for divorce, but it does not result in financial claims against the third party involved. – South Africa: While South African law historically recognized claims for damages against a third party, modern courts have moved away from this practice, leaning towards no-fault divorce principles that do not emphasize fault or blame in marital breakdowns. – India: Indian law, similar to English law, does not allow for damages claims against an adulterous third party. Divorce can be granted on grounds of adultery, but there is no provision for financial claims against the third-party adulterer. Legal Advice for Clients Seeking Damages for Marital Harm If you find yourself considering legal action due to an affair that has disrupted your marriage, the following guidance may help clarify your options: 1. Consult a Legal Professional: Due to the complexity and specificity of these claims, it is essential to consult an attorney experienced in Sri Lankan matrimonial law. A legal expert can guide you through the process, evaluate your case’s strengths, and determine the likelihood of a successful damages claim. 2. Gather Evidence: Claims for damages based on adultery require concrete evidence of the third party’s involvement and the resulting harm to your marriage. Evidence might include messages, photographs, and witness testimonies. Strong evidence strengthens your case and increases the likelihood of favorable outcomes. 3. Consider Emotional and Practical Implications: While the judgment allows claims without divorce, the emotional implications of pursuing such a case can be significant. Weigh the potential impact on your personal and family life, and consider whether financial compensation aligns with your long-term goals and well-being. 4. Evaluate Non-Divorce Alternatives: If preserving the marriage remains a priority, discuss alternative resolutions with your attorney. In some cases, addressing marital issues outside the courtroom may be more beneficial and less contentious than pursuing legal claims. This landmark ruling highlights that Sri Lankan law respects the right of individuals to seek justice for personal harm caused by third-party adulterers. By enabling claims for damages without necessitating divorce, it provides a unique pathway to redress and accountability that supports both individual dignity and the sanctity of marriage.

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Introduction to Bail Act in Sri Lanka Bail is a legal process that allows someone who has been arrested to be released from custody while their case is being processed. Sri Lanka’s bail law is mainly governed by the Bail Act No. 30 of 1997, which explains when and how bail can be granted or refused. The purpose of the Bail Act in Sri Lanka is to make sure that people who are accused of crimes can be released from custody while ensuring that they come back for their court hearings. Bail is like a promise or guarantee that the person will follow the rules set by the court. It is not a punishment. The Bail Act also introduced something called anticipatory bail, which means that a person who thinks they might be arrested can apply for bail before the arrest happens. Key Points from the Bail Act in Sri Lanka Under the law, bail should be granted in most cases unless there are strong reasons to refuse it. This helps protect people’s freedom. There are certain cases where the Bail Act does not apply, such as: – Crimes under the Prevention of Terrorism Act – Crimes under the Public Security Ordinance – Specific laws like the Customs Ordinance, Offensive Weapons Act, and poisons and Dangerous Drugs Ordinance. – Bailable offenses: For less serious crimes, the person has a right to be released on bail. – Non-bailable offenses: For serious crimes (e.g., murder, drug offenses), the court has the discretion to decide whether or not to grant bail. If the crime is less serious, the police can release the person on bail during their investigation. For serious crimes, the person must be brought before a judge. For crimes that are punishable by death or life imprisonment, only a High Court judge can grant bail. The court can refuse to give bail if it believes: – The person might not return for court hearings, – They might interfere with witnesses or evidence, – They might commit more crimes while out on bail, or – The public might react strongly to the crime, causing unrest. A person can’t be held in custody for more than 12 months without being convicted, unless the Attorney General asks for an extension. Extensions can be given for up to three months at a time, but the total detention should not exceed 24 months. Even after a person is convicted, they can apply for bail while their appeal is pending, but this depends on the severity of the crime. Anticipatory Bail Anticipatory bail allows a person to apply for bail before they are arrested if they think they might be accused of a non-bailable crime. The court can set conditions, such as not allowing the person to leave the country or requiring them to give up their passport. This helps protect people from wrongful arrests. Several important court decisions have shaped the way bail is granted in Sri Lanka: – Thilanga Sumathipala v. Inspector General of Police: The court clarified that the Bail Act does not apply to certain crimes like those under the Prevention of Terrorism Act. – Shiyam v. Officer-in-Charge, Narcotics Bureau: The court ruled that bail can be restricted for drug-related offenses, even if the Bail Act normally applies. – Wickramasinghe v. Attorney General: The court emphasized that bail should not be refused just to punish the accused. It should be given to ensure the person attends court hearings. Sri Lanka follows international conventions like the International Covenant on Civil and Political Rights (ICCPR), which protect people’s right to freedom and prevent unnecessary detention. The country’s bail laws are designed to align with these principles by ensuring that people are not held in jail unnecessarily before their trial. Conclusion As a conclusion Sri Lanka’s bail law is designed to protect individual freedom while ensuring that people accused of crimes still attend court. The Bail Act makes it clear that granting bail should be the rule, and refusing it should be the exception, except in serious cases. Anticipatory bail adds an extra layer of protection for people who fear wrongful arrest. Over time, court decisions have further refined the balance between protecting public safety and ensuring individual freedom.

One of the most pressing concerns during divorce proceedings is the issue of child custody. Particularly when one parent is abusive. Many clients ask, “Who will have custody of the children while the divorce is ongoing?”. This question takes on even greater urgency when the well-being and safety of the children are at risk. And a parent is seeking full custody while the case is still in progress. Legal Framework for Interim Custody in Sri Lanka Under the Civil Procedure Code (CPC) of Sri Lanka, courts are empowered to issue interim orders that determine the custody, maintenance, and education of children while divorce proceedings are still ongoing. These interim custody orders are designed to protect the welfare of the children, ensuring that their needs are met while the court deliberates on the final custody arrangement. The court’s guiding principle in making these decisions is the best interests of the child, a standard that takes into account several factors such as the child’s age, health, emotional and psychological ties to each parent, and the overall home environment. Court’s Role in Custody Cases In cases where there is a claim of abuse or neglect, the courts take such allegations very seriously. If the other parent is abusive, it is essential to bring this to the court’s attention as quickly as possible. The court may issue orders to protect the child from harm, including restricting the abusive parent’s access to the child during the proceedings. Sri Lankan courts also have the power to issue a writ of habeas corpus to ensure that the child’s welfare is given top priority. This writ can be used to challenge unlawful detention or custody of a child and make sure the child is placed in the safest and most suitable environment during the divorce process. If the court believes that another court is more suited to handle the matter, such as a court in a different jurisdiction, it may direct the case to that court to better address the specific circumstances of the custody dispute. Key Legal Precedents in Child Custody Cases Over time, Sri Lankan courts have developed a rich body of legal precedents that guide custody decisions. One of the most notable cases is Ivaldy v. Ivaldy (1956) 57 NLR 568, in which the court held that while a father generally has a preferential right to custody, this right is not absolute. The mother can challenge this preference if she can demonstrate that the father is not acting in the best interests of the child. The court ultimately prioritizes the child’s welfare above parental rights. This principle has been reaffirmed in subsequent rulings, such as in Weragoda v. Weragoda (1961) 66 NLR 83, where the court emphasized that the child’s welfare takes precedence over the automatic custody rights of the father. The court thoroughly examines both parents’ ability to care for the child, including their moral character, financial stability, and emotional capacity to provide a supportive environment. In abuse cases, the court is even more vigilant in ensuring the child’s safety and well-being. The Best Interests of the Child Standard In all custody cases, Sri Lankan courts adhere to the principle of “best interests of the child,” which is an internationally recognized standard supported by various international conventions, including the United Nations Convention on the Rights of the Child (UNCRC). This standard compels the court to consider the child’s long-term well-being and development when making any custody decision. Courts often look into factors such as the child’s relationship with each parent, the parent’s ability to provide emotional support, and whether either parent poses a danger to the child. Steps to Take If You Are Seeking Interim Custody If you are in the process of seeking interim custody during a divorce, it is crucial to act quickly and strategically. The first step is to gather evidence of any abuse, neglect, or unsafe conditions that the other parent may be subjecting the child to. This evidence may include: Presenting this evidence to the court is essential in supporting your claim for custody. It is also highly recommended that you work with a lawyer who is experienced in Sri Lankan family law, especially in cases involving abuse or contentious custody battles. Your lawyer will help you navigate the complex legal procedures and present a strong case to the court on your behalf. Conclusion: Navigating Child Custody During Divorce Divorce is never easy, and child custody battles can add to the stress and emotional toll. However, by understanding your legal rights and the available mechanisms under Sri Lankan law, you can protect your children’s well-being during this difficult time. Whether you’re seeking interim custody or a permanent arrangement, the key is to prioritize the best interests of your child and present your case with solid evidence and expert legal support. Consulting a lawyer with expertise in family law and child custody matters is crucial. With their guidance, you can navigate the legal complexities and secure the protection and care your children deserve. Do read our blog on divorce law in Sri Lanka to understand this better.