Legal Aid Commission

International Women’s Day centenary

On March 8, the world would undertake activities to empower the women in our society. Last year The United Nations under the leadership of Secretary-General Ban Ki-moon inaugurated a worldwide program to eliminate multifarious violence against women. The program would continue till 2015. This year the theme for International Women’s Day is ‘Global Partner’.

The Legal Aid Commission jointly with a number of Women’s Organizations is planning to celebrate the centenary International Women’s Day on March 8, 2011.

The Prime Minister and other political leaders are expected to grace the main event scheduled to be held in Kuliyapitiya. The Legal Aid Commission of Sri Lanka has decided to honour four outstanding women of Sri Lanka.

The four Sri Lankans chosen for this tribute are the world’s first woman Prime Minister Sirimavo Bandaranayike, Member National Committee on Women Jazima Ismail, UN Under Secretary General Radhika Coomaraswamy and Knight of the Order of Oranje-Nassau Deloraine Brohier.

The Legal Aid Commission during the past few years took initiatives to legally empower the women and the girls in this country.

Sri Lanka has an effective Child Development and Women’s Empowerment Ministry.

Women and Children’s Bureau in the Police and several NGOs are dedicated to child and gender empowerment. The welfare and development of women should not be only confined to women’s groups but the men should also make gender equality a business of their own.

In this country, legislators even though they were overwhelmingly men (which should be corrected) have enacted progressive legislation to empower women commencing from the 1978 Constitution, with several pieces of important legislation, such as 1995 amendment to the Penal Code and the Domestic Violence Act of 2005 and the enactment of International Covenant on Civil and Political Rights just last year.

Apart from pro-women legislation, Sri Lanka has two women Justices in the Supreme Court, a woman Secretary-General of Parliament and very effective Secretaries to empower Ministries.

This trend needs to be fortified. Sri Lankan women deserve equal treatment for they have earned their rights.

Mere hosannas on how women make the major contribution to the economy by remitting billions working as migrant workers, working in garment factories and tea estates. Women not only look after the children but provide old age care without any remuneration.

Women have made sacrifices to make these contributions and society should recognize their contribution.

For instance, the semi educated domestic workers when returning to Sri Lanka should be respected like in the Philippines and not be treated as sullied characters by working away from their homes. ‘Pathway to decent work for Women’ this year’s UN slogan for the International Women’s Day should be a live principle not only for government policy makers but also for the private sector in the Sri Lankan economy.

There should be more women in the Boards of Directors in the blue chip Companies and the Corporate Social responsibility must develop leadership training programs for women and girls.

International service clubs like the Rotary and the Lions should promote more and more dedicated women to join in their membership and club activities. Before everything, women should be treated with dignity and honour.

S S Wijeratne

[Questions and Answers]

‘Crossings’ on cheques

Question: I want to know the effect of crossing cheques. Could you also explain to me the following types of crossing:

(a) General Crossing
(b) Special Crossing

I await your valuable reply through your Legal Aid Page. Your page provides a great service to the country.

Fernanado Sent by email

Answer: The crossing on a cheque is a direction to the paying bank that the cheque should be paid only to another bank. A bank can ignore the crossing and pay a crossed cheque over the counter. However, if it later turns out that the person paid was not entitled to receive that payment, the paying bank will be liable to the true owner and will also forfeit the statutory protection of the Ordinance. This is because payment of a cheque in contravention of a crossing would be regarded as negligence by the bank.

General Crossing

Where a cheque bears across its face an addition of -

(a) the words “and Company” or any abbreviations thereof between two parallel transverse lines, either with or without the words “not negotiable”; or

(b) two parallel lines simply, either with or without words “not negotiable” - that addition constitutes a crossing and the cheque is generally crossed.

Special Crossing

Where a cheque bears across its face an addition of the name of a banker with or without the words, “not negotiable”, that addition constitutes a crossing, and the cheque is crossed specially and to that banker

How to obtain lost Identity Card

Question: I lost my Identity Card. I have a photocopy of the same. Please let me know how to get my lost Identity Card. I know through your Legal Aid Page that the original Birth Certificate is necessary to get a new Identity Card.

Aruna Shantha - Bibila

Answer: If you want to obtain a new Identity Card, you have to first make a complaint to the Police station and get the certified copy of that complaint. Thereafter you have to meet your Grama Niladhari and get an Application Form and have the form duly completed.

After preparing all the documents you have to submit five identity card size (coloured photographs) and the photocopy of the identity card.

It is necessary to submit the original Birth Certificate to get the new identity card because the date of birth is necessary. The Registrar of Persons has ‘One Day Service’ to issue Identity Card on a fee of Rs 500. Otherwise you can get your Identity Card from the Grama Sevaka through the normal procedure which will take at least one month. If you need any assistance you can visit our Head Office at No.129, Hulftsdorp Street, High Court Complex, Colombo 12.

Prevention of Domestic Violence Act

Question: We are aware that under the Domestic Violence Act court has power to issue interim order or protection order to the Respondent. What are the prohibitions that contain in the above-mentioned orders? Please explain.

Ruwan Keerthi - Akuressa

Answer: The prohibitions are -

(a) entering a residence or any specified part thereof, shared by the aggrieved person and the respondent.

(b) entering the aggrieved person’s -

(i) residence;
(ii) place of employment;
(iii) school;

(c) entering any shelter in which the aggrieved person may be temporarily accommodated.

(d) preventing the aggrieved person who ordinarily lives or has lived in a shared residence from entering or remaining in the shared residence or a specified part of the shared residence;

(e) occupying the shared residence;

(f) having contact with any child of the aggrieved person or having contact with such child other than on the satisfaction of such conditions as it may consider appropriate, where the court is satisfied that it is in the best interest of such child;

(g) preventing the aggrieved person from using or having access to shared resources;

(h) contacting or attempting to establish contact with the aggrieved person in any manner whatsoever;

(i) committing acts of violence against any other person whether it be a relative, friend, social worker or medical officer, who may be assisting the aggrieved person;

(j) following the aggrieved person around as to cause a nuisance;

(k) engaging in such other contact as in the opinion of the court will be detrimental to the safety, health or well-being of the aggrieved person or other person who may require protection from the respondent as the court may specify in the Protection Order;

(l) selling, transferring, alienating or encumbering the matrimonial home so as to place the aggrieved person in a destitute position.

Domestic violence against women

Question: I read your editorial which appeared in the Daily News Legal Aid Page last week. According to the said editorial majority of disputes are related to maintenance and divorce.

My sister is also subjected to a lot of harassment and violence from her husband, but she does not want to divorce him.

I would like to know the offences that are stipulated in the Prevention of Domestic Violence Act No.34 of 2005.

Chintha Sajeewani - Panadura

Answer: Thank you very much for reading our page. The offences specified in Schedule 1 of the Prevention of Domestic Violence Act No 34 of 2005 are given below:-

Schedule I

1. (a) All offences contained in Chapter XVI of the Penal Code and its amendments (beginning from Section 293 to 365). The relevant sections are quoted below:-

Section 293 - Culpable homicide
Section 294 - Murder
Section 295 - Culpable homicide by causing the death of aperson other than the person whose death wasintended.
Section 298 - Causing death by negligence.
Section 299 - Abetment of suicides.
Section 300 - Attempt to murder.
Section 301 - Attempt to commit culpable homicide.
Section 303 - Causing miscarriage
Section 304 - Causing miscarriage without women’s concern.
Section 308 - Cruelty to children
Section 311 - Grievous hurt
Section 330 - Wrongful restraint
Section 331 - Wrongful confinement
Section 340 - Force
Section 341 - Criminal force
Section 342 - Assault
Section 345 - Sexual harassment
Section 353 - Abduction
Section 350 - Kidnapping
Section 363 - Rape
Section 364 - Incest
Section 365 - Grave sexual abuse

1. Extortion Section 372 of the Penal Code

“Whoever intentionally puts any person in fear of any injury to that person or to any other and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security or anything signed or sealed which may be converted into a valuable security, commits extortion”.

2. Criminal intimidation Section 483 of the Penal Code

“Whoever threatens another with any injury to his person, reputation, or property or to the person or reputation of anyone in whom that person is interested with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation”.

3. Attempt to commit any of the above offences.

(c) Any emotional abuse,

Committed or caused by a relevant person within the environment of the home or outside and arising out of the personal relationship between the aggrieved person and the relevant person;

‘Emotional abuse’ means a pattern of cruel, inhuman, degrading or humiliating conduct of a serious nature directed towards an aggrieved person.

If you need any legal advice in the matter, you could visit our Head Office at No.129, Hulftsdorp Street, High Court Complex, Colombo 12.

Pension

Question: A relation of mine, a pensioner retired two years ago. His wife was sick and died very recently. His wife has an unmarried sister who is solely dependent on this pensioner for everything and at the same time she doesn’t have parents as well.

Since she is unmarried and without parents there is no one to look after her except for this pensioner, I want to know whether there is any provision for her to draw the pension after the pensioner’s death.

D Chethika - Mahara

Answer: Under the Pension Minutes and Circulars, once the pensioner dies, automatically his pension ceases. Although, according to the Widows and Orphans Ordinance, only the widow and the orphans children are entitled to get the benefits Therefore the unmarried sister is not entitled to get his pension.

Filing action against Son-in-Law

Question: I had an affair. Both our parents were against our affair. So we eloped and got married legally. We are both over 18 years of age. However my father made a complaint to the Police and thereafter I was arrested. I later got to know that her father is trying to file a case against me. Can he do so?

Chamara - Katupotha

Answer: If both of you are over 18 years and legally married, no one can separate the both of you. If your wife’s father is trying to file a case against you, you can seek relief by filing a writ application in the High Court where you are residing.

What is incest?

Question: What is incest?

Gaganath - Kothmale

Answer: Under the Penal Code and its Amendment in 1995, the law defines incest as whoever has sexual intercourse with another who stands towards him in following relationships:

(a) directly descended, adoptive relationships.
(b) Sister by blood or adoption.
(c) Brother by blood or adoption.

The offence of incest shall not be affected or negated by reason of legality of such relationship (absence of valid marriage or adoption)

Punishment

Rigorous imprisonment 7-20 years with fine.

* Attempt to commit incest-two years
* Written sanction of the Attorney-General is necessary for prosecution.

Family laws in Sri Lanka

Question: I am a keen reader of your Daily News Legal Aid Page. This page provides useful articles as well as answers to legal questions raised by individuals in different parts of the island.

I would be very grateful if you could let me know through your page the different types of marriage laws in Sri Lanka and its requirements.

Keen Reader

Answer: The body of law relating to marriage consists of the general law, customary law and personal law. Tamils are governed by the general law in most marriage-related matters, whereas Kandyan Sinhalese can choose to be governed by the general law or their customary laws. Muslims are governed by Muslim personal law.

The 1907 Marriage Registration Ordinance constitutes the general law on marriage in Sri Lanka. The Ordinance applies to marriage between Tamils and between individuals of differing ethnic and religious communities.

Requirements:

Pursuant to a 1995 amendment to the Ordinance, the minimum age of marriage was raised to 18 for both men and women. A subsequent provision, however, authorizes parents to consent to a marriage involving a minor. If a parent unreasonably withholds consent, a court may authorize the marriage.

Courts have held, however, that a parent’s refusal to give consent will only be overruled if the court is satisfied that the refusal is without cause and contrary to the interest of the minor.

Despite the requirement of parental consent for a minor to marry, the Ordinance provides that lack of proof of such consent does not render invalid marriages registered under the Ordinance. This exception does not apply to customary marriages because such marriages would not have satisfied the registration requirement.

However, courts have held in cases of unregistered marriages as well that want of consent would not invalidate such a marriage after it had been consummated.

Divorce without going to Courts

Question: We got married last year. We want to know what are the possibilities for us to get a divorce, without going to courts.

Is this possible?
How can we do it?
How much time will it take?
Thank you very much for your valuable service.

Kamalika - Maharagama

Answer: Under the Marriage Registration Ordinance 1907 and its amendments, if you want to get a divorce, you have to fulfill one of the following three grounds:-

(a) adultery
(b) incurable impotency at the time of marriage
(c) desertion

Without going to courts, you cannot get a divorce. You have to file a case in courts where one of the parties resides. During the court proceedings, you can seek relief on the ground of desertion. If you need further information, you can visit any one of our Legal Aid Centres islandwide and get free legal advice regarding your problem.

Sexual harassment in work places

Question: We hear of many sexual harassments taking place in offices. If a female employee faces such problems, the Police sometimes never take the side of the female employee. What is the legal remedy available to them?

Please let me know how the law defines ‘sexual harassment’ and its punishment in the legal context ?

Dammika - Mudunkatuwa

Answer: Under the Penal Code and its Amendment in 1995, ‘sexual harassment’ is defined in Section 345 as follows:-

“Whoever by assault or use of criminal force sexually harasses another person or by the use of words or action, causes sexual annoyance or harassment to such other person commits the offence of sexual harassment.”

Punishment- imprisonment may extend to 5 years, or fine or both and compensation for victim. The legal remedy differs from the circumstances of each case.

Arbitration clause in agreement

Question: I have decided to start a business with a foreign company. We have already drafted our agreement. But we never included the arbitration clause in our agreement. I want to know whether it is necessary to include the arbitration clause before the parties sign the agreement. If the agreement does not include the arbitration clause, can the two parties resolve the dispute through arbitration. What is the legal validity?

Sumeda - Negombo

Answer: If you want to resolve your dispute through arbitration you have to include the arbitration clause in your agreement. Arbitration clause is mentioned in part (II) of the Arbitration Act, No, 11 of 1995. Otherwise when the dispute arises both parties can enter a submission agreement to resolve the dispute through arbitration.

In the case of business with a foreign company it is advisable to include the arbitration clause, because the Arbitration Award is enforceable internationally.

How to obtain a deed?

Question: Please let me know how I could obtain a certified copy of a deed, where only the number of the deed and the name of the lawyer who prepared same is available. The deed is in respect of a house situated in Colombo. Your early advice in this regard would be greatly appreciated.

Chandana - Colombo

Answer: If your land is situated in Colombo and your lawyer is a practicing notary in Colombo, then you have a chance to get a certified copy of the deed. You have to visit the Land Registry in Colombo after verifying the date of attestation of the relevant deed. In order to verify the date of attestation of the deed, you have to visit the section where duplicate deeds of the notaries are kept. Since you are aware of the name of the notary, you can find out the date of attestation.

To apply for a certified copy of the deed, there is an application form to be duly filled where a stamp duty of Rs 102.50 has to be paid.

Relationship between consumers and the CAA

Question: We are all consumers, but most of us are not aware of our consumer rights. We would be pleased if you could clarify the following:

1. Please let us know the main functions of the Consumer Affairs Authority (CAA).
2. Who can obtain the service from the Consumer Affairs Authority?
3. What is the mechanism adopted by the Consumer Affairs Authority in granting redress to aggrieved consumers?
4. How can a complaint or interested party make a complaint or obtain information?

Sent by email

Answer: 1. The main functions of the Consumer Affairs Authority are;

* Handling of complaints by traders on anti-competitive practices and unfair trade practices.

*Conducting market investigations and market surveys.

*Specifying goods and services which are essential to the life of the community and regulating the prices thereof of the goods and services specified as above.

* Computer awareness and empowerment mainly by establishing consumer organizations.

* Issuing of directives to traders and manufacturers on labeling, packaging, price market, etc.

* Obtaining the required redress for the aggrieved consumer and punishment of offenders through the judicial systems.

*Warning of any trader or manufacturer in the case of first contravention of the provisions of the CAA Act

2. Aggrieved consumers and traders can seek the redress from the Consumer Affairs Authority.

3. The mechanism adopted by the CAA in granting redress to aggrieved consumers - A written complaint along with supportive documents which relates to the sale of goods or to the provision of service should be sent to the Authority within three months. An inquiry is held into the complaint. After an inquiry the Authority shall order the trader or the manufacturer to pay compensation to aggrieved party or to replace such goods or to refund the amount paid for such goods or the provision of services.

4. A complaint or interested party can make a complaint or obtain information. Complaints should be addressed to the Director-General of the Authority to the address given below:

Consumer Affairs Authority,
CWE Secretariat Building,
27, Vauxhall Street, Colombo 2.

Tel Nos: Chairman - 2399146. Director - 2399149. General - 2393577, 2445897, 2393495, 2393970, 2399147.

Fax No. - 2399148

The Legal Aid Commission has already set up a Consumer Protection Desk. If you need any assistance relating to consumer rights, you can kindly call over at our Desk situated at our Head Office at No.129, Hulftsdorp Street, High Court Complex, Colombo 12.

Rape

Question: How is a man said to have committed rape? Could you please define this clearly through your valuable Daily News Legal Aid Page?

I also take this opportunity to thank the Legal Aid Commission for the valuable service rendered to the public through this page. Well done. Keep it up.

Premalal - Moratuwa

Answer: Under Section 363 of the Penal Code Act, No.22 of 1995, man is said to commit ‘rape’ who has sexual intercourse with a woman under circumstances falling under any of the following descriptions - (a) without her consent even where such woman is his wife and she is judicially separated from the man; (b) with her consent, while she was lawful or unlawful detention or when her consent has been obtained, by use of force or intimidation, or by threat of detention or by putting herein fear of death or hurt,

(c) with her consent when her consent has been obtained at a time when she was of unsound mind or was in a state of intoxication induced by alcohol or drugs, administered to her by the man or by some other person;

(d) with her consent when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is, or believed herself to be, lawfully married;

(e) with or without her consent when she is under sixteen years of age, unless the woman is his wife who is over twelve years of age and is not judicially separated from the man.