Legal aid Commission

Thesawalamai - Part II:

Matrimonial Rights and Inheritance Ordinance

The rules regarding inheritance found in Thesawalamai were found to be harsh and defective and not expressed with sufficient precision. Therefore, in 1892, a meeting in the Jaffna Peninsula representing its intelligence and respectability was convened by Jaffna District Judge P. W. Connolly at that time to consider law reform.

The Jaffna Matrimonial Rights and Inheritance Ordinance (MRAIO) was drafted and enacted as a result of this discussion. The main objective of this enactment was to simplify the law and to remove ambiguities and difficulties arising due to the existing translated text of the original Dutch Compilation of the law.

This law is applicable to Tamils to whom Thesawalamai applies, women who are initially not governed by Thesawalamai but marries a man governed by it (if a woman governed by Thesawalamai marries a man not governed by it, this enactment would not apply to her) and to any property situated in any part of the country which is owned by persons governed by Thesawalamai (this came about after the Amendment to the existing law in 1947)

This enactment is divided in to three parts. Part one deals with applicability of Thesawalamai to married women.

Part two deals with the matrimonial rights of both husband and wife. It states that the separate properties acquired (except thediathettam) before or during marriage by either spouse would remain their separate properties. The wife can alienate her immovable properties (Land) with the written consent of the husband and the movable properties (Eg: jewelry) without the consent of the husband. But she could bequeath her movable and immovable property without the consent of the husband. However if the consent of the husband is with held without a reason the District Court can grant consent to the wife to alienate her property. This Ordinance also made gifts from husband to wife and vice versa valid. The District Judge was also given the power to settle property disputes arising between husband and wife.

Part three deals with inheritance. MRAIO classifies property in two ways. Firstly into Mudusam (hereditary property from parent or ancestor), Urumai (hereditary property on the death of a relation other than parent or ancestor in the ascending line) and Thediatettam ( property acquired by either spouse during the marriage for valuable consideration (Ex. for money) ) and Secondly in to Property acquired from the father's side, Property acquired from the mother's side and Thediatettam.

On the death of the owner, property can be succeeded by either decedents or collaterals.

When one spouse passes away his/her property will firstly devolve on their legitimate children. If the child has not attained majority age, the surviving spouse can continue to possess and enjoy the estate till the child is no more a minor, provided that the surviving spouse maintains the child. However illegitimate children can only inherit the property of the mother and not the father.

If the deceased has no children or decedents (Eg. Grand Children) the deceased's property is divided in to property derived from the father's side, property derived from mother's side and the remaining property (thediatettam and property which does not fall under the first two categories) and subject to certain restrictions, this property will devolve firstly to the parents, then to the siblings then to grandparents, uncles and aunties, great grandparents, brothers and sisters of grandparents and so on.

The rule of succession is however subjected to the right of the surviving spouse to pay off debts of the deceased out of the whole property of the deceased and half of the the diathettam.

Pre-emption in Thesawalamai

Pre-emption in Thesawalamai means that when a co-owner, co-sharer or adjacent land owner who has the mortgage of the land which is about to be sold, he has a right to demand the owner to sell the land to him at a price which any purchaser would be willing to pay for that land.

Swasthika Arulingam AAL, Legal Aid Center for Victims of Crimes Director

[ Questions and Answers]

Refund of WOP payment after death of spouse

Question: I am a 60 year old pensioner. During my tenure of service I contributed to the W&OP pension scheme . Two months ago my wife died. I don't have children who are less than 26 year of age. I want to know whether I can get the contributions made to the W&OP pension scheme. If so, please let me know the correct procedure ?

Answer: According to the Pension Minutes and Circulars you are not entitled to get the W&OP payment. If you are unmarried at the time of getting the pension then you can obtain the W&OP payment with interest. Or else if your spouse has died before you go on pension and if your children are above 26 years of age, then you can get your W&OP refund back. As per your query, you are not entitled to get the your W&OP payment because your wife had died after you got retired .

Consumer rights and responsibilities

Question: Please let me know the rights and responsibilities relating to consumers when purchasing goods and services?

Dayananada, Matara

Answer: The right to satisfaction of basic needs

To have access to basic essential goods and services: adequate food, clothing, shelter, health care, education, public utilities, water and sanitation.

The right to safety

*To be protected, production against products, processes and services which are hazardous to health or life

*The right to be informed

*To get information to make informed choice, and to be protected against dishonest of mislead advertising and labeling

*The right to choose

*To be able to select from a range of products and services, offered at competitive prices with an assurance of satisfactory quality.

*The right to be heard

*To have consumer interests represented in formulating and execution of government policy, and in the development of products and services

*The right to redress

*To receive a fair settlement of just claims including compensation for misrepresentation, sub standard goods or unsatisfactory services

*The right to consumer education

*To acquire knowledge and skills needed to make informed, confident choices about goods and services, while being aware of basic consumer rights and responsibilities and how to act on them

*The right to a healthy environment

*To live and work in an environment which is non-threatening to the well-being of present and future generations

Pricing mechanism under CAA Act No.9 of 2003

Question : Please let me know what kind of powers are vested in the Consumer Affairs Authority for regulating the Pricing Mechanism under the Consumer Affairs Authority Act No.9 of 2003? Fathima, Kataragama

Answer : The Consumer Affairs Authority has power to regulate the pricing mechanism for goods under the Consumer Affairs Authority Act No.9 of 2003,

(A)Section 14 - Agreement to provide for maximum price of good.

The Authority may enter into written agreement with any manufacture or trader or any association of manufactures or traders To provide for

(a) Maximum price of any goods

(b) The standards and specifications of goods manufactured, sold or offered for sale.

(c) Any other conditions as to the manufacture, import, supply, storage, distribution, transportation, marketing, labeling or sale of any goods.

(B) Section 18(3) - Prior written approval for price revision application of specified goods.

Where the Minister is of the opinion that any goods or any service is essential to the life to the community or part thereof, the Minister in consultation with the Authority may be Order published in the Gazette prescribe such goods or such service as specified goods or specified service the case may be. A manufacture or trader who sees to obtain the approval of the Authority under subsection (2), shall make an application in that behalf to the Authority, and the Authority shall, after holding inquiry as it may consider appropriate -

(a) Approve such increase where it is satisfied that the increase reasonable or

(b) Approve any other increase as the Authority may consider reasonable

And inform the manufacture or trader of its decision within 30 days of the receipt of such application.

(C) Section 19 and 20 - By order published in the Gazette, fix the maximum price.

Where it appears to the Director General that any goods are being sold or any services are being provided by a manufacture or trader at an excessive price the Director General may in consultation with the Authority, refer such matter to the council for investigation and report.

On the receipt of the recommendation of council under Section 20(4), the Authority shall by order publish in the gazette, fix the maximum price. Manufacturer or Trader shall not increase the price of any specified good or services without the prior approval of the Authority. To obtain the approval of the Authority the applicant must send the application to the Authority.

Probationary period

Question: Kindly clarify the following position through your legal aid column:-

A person has been employed subject to a probation period of six months according to his letter of appointment. Can his probation period be extended without confirming him in his appointment and if so under what circumstances?

Saman, Talwila

Answer: A probation period is the time that the employer has to determine the potentials of an employee. It is possible to extend the probation period if the Employer needs time to consider whether an employee is suitable for a particular job. This extension of period can only be done prior to confirming in a particular position.