Legal Aid Commission

Dowry in Kandyan Law

Dowry is an important component of Kandyan marriages. Hayley states that, “The bridegroom usually insists upon a large dowry and the parents of the bride deem themselves disgraced if one suitable to their social status cannot be given.”

The dowry system under Kandyan Law is clearly understood in the background of the Kandyan’s two forms of marriages the diga and binna form of marriages. In diga marriage the wife is conducted to the husband’s home from the ancestral home.

In customary law the diga marriage is considered precarious or rather dangerous to the female as the daughter was liable to be sent back to her ancestral home by the husband and his family at any time. So, she was given a dowry to save her from poverty and impoverishment.

In binna marriage husband lives in the residence of the wife. In this type of marriage a husband acquires an inferior position and the wife is considered to be the chief householder.

A diga married daughter loses her intestate rights to paraveni property while a binna married daughter enjoys such rights. In Mampitiya v Wegodapola (24 NLR 129) the court decided that a diga married daughter who had not left her ancestral home or mulgedera did not lose her inheritant rtts to paraveni property. In Seneviratne v Halangoda (22 NLR 472) the court held that forfeiture of inheritance rights did not depend on the form of marriage but actual proof of the severance from the parental home and that it was possible to establish that the diga married daughter had retained binna rights or re-acquired binna rights even though in other respects the marriage remained a registered diga marriage. But this legal position was changed by the Kandyan Law Ordinance.

Ordinance spells out that the change of residence after a diga marriage cannot lead to a re-acquisition of rights of inheritance.

Hence, a diga married daughter forfeits her right to inherit paternal paraveni property. In Rana v Kiribindu (78-79 NLR 73) court held that reacquisition of binna rights was possible after dissolution of the marriage in order to give a relief to a married woman who forfeits her inheritance rights on contracting a diga marriage.

However in appeal Jayasinghe v Kiribindu the court held that a diga married daughter could not re-acquire her binna rights after dissolution of the marriage by residing in her mulgedera.

Generally gifts under Kandyan Law are revocable. For the gifts to be categorized as dowry, gifts should be given in consideration of marriage. In Ram Menika v Banda Lekam Pereira J. said “Dowry is usually the inducement agreed upon in the course of negotiations for a marriage, for contracting the marriage. And also he said, it can be “a spontaneous and free will gift by a parent to the contracting parties. It may even come as a surprise on the dowers”.

Therefore we can come to a conclusion that dowry need not always be an inducement for contracting a marriage. It also can be a spontaneous and free will gift of a parent. In Kandappa v Charles Appuhamy the decision appears to lay the basis that the donees of dowry gifts are not bound to prove that the deed operated as an inducement to contract the marriage.

To satisfy the requirement of irrevocability, there has to be evidence that it was given in pursuance of a promise of a marriage made before the marriage. - Ealilmolle Rajagulendra

Questions and Answers

Coastal Development

Question : I have decided to build a hotel in a coastal area. Is there any procedure to be followed, before I start the constructional works?

Karunadasa,
Chilaw

Answer : In terms of Section 14 of the Coast Conservation Act No. 57 of 1981, no person shall engage in any development activity other than a prescribed development activity within the Coastal Zone except under the authority of a permit issued in that behalf by the Director, Coast Conservation.

If you need to build a house, tourist hotel, commercial building or otherwise carry out any development activity within the coastal zone, you may need a Coast Conservation permit issued by the Director, Coast Conservation Department (CCD).

In order to avoid undue delay in the processing of the application, you are requested to consult the Coast Conservation Department staff before applying for a permit for any development activity which might affect physical features of the coastal environment. Early consultation with Coast Conservation Department will help to expedite the processing and approval of permit applications. When you fill out an application, please give them as much details as possible.

An incomplete application will create unnecessary delays and processing problems in issuing of permits.

Hence, all applications must be submitted with required survey plans, contour maps, drawings, relevant permit fee, sketch showing proper directions to the proposed site.

It is advisable to consult Coast Conservation Department before you purchase or lease any properties lying within the coastal zone to minimize the risk of investment

Approval of building plans by Local Authorities

Although issuing the final approval for construction of the buildings within the Coastal Zone is a responsibility of the respective local authority, it is compulsory to obtain a permit from the Coast Conservation Department prior to the commencement of construction of buildings, even if approved by the relevant local authority.

Removal of unauthorized constructions

Question :

1. How do you define ‘Coastal Zone’ under the law?

2. Is there any law to remove any constructional work done in a coastal zone without obtainning a permit from the department of coastal conservation?

Answer: The‘Coastal Zone’ is defined in the Coast Conservation Act as “the area lying within a limit of 300 metres landward of the Mean High water Line and a limit of two kilometres seaward of the mean Low Water Line and in the case of rivers, streams lagoons or any other body of water connected to the sea either permanently or periodically, the landward boundary shall extend to a limit of two kilometres measured perpendicular to the straight base line drawn between the natural entrance points identified by the mean low water line thereof and shall include waters of such rivers, streams, and lagoons or any other body of water so connected to the sea”.

All development activities within the coastal zone which construct without obtaining a permit from the Coast Conservation Department is considered as an unauthorized construction and in compliance with the provisions of the Coast Conservation Act, Coast Conservation Department will take necessary actions to remove the unauthorized construction.

While the development activity is in progress according to a permit issued by the Coast Conservation Department, officers will inspect as to whether such activity conforms to the conditions laid down in the permit. In case if the said conditions have been violated, immediate action will be taken to cancel the permit and legal action will be followed.

Payment of Disability Pension for orphans

Question: Please let me know about the W&OP pension scheme which pay a pension for the Disabled Orphans?

Samaradivakara,
Agurukaramulla

Answer: 1. Mental or physical disability must be either at birth or before exceeding the age limit prescribed for orphans.

2. When not disabled at birth, payment of pension is allowed from the date approved by Medical Board.

3. When the Director-General is satisfied that a child is disabled, the child must be referred to a medical board.

4. Power of making pension to orphans on such ground like property ownership, family income and other sources of income of orphan and leading a married life and the ability of eking out one's own livelihood by an orphan, is vested in the Director-General of Pensions.

5. This pension could cease upon the holder being imprisoned, an anti-social element and delinquent or resided abroad.

6. Suitable care-taker must be appointed for those disabled who cannot handle money matters. The care-taker should spend this whole pension only for the livelihood of orphan.

7. Director-General of Pensions has the power of ordering the payment of pension or a percentage thereof.

8. There should be no heirs, dependents or attornies-at-law in respect of this pension

9. Orphans not fully disabled at birth must be referred to a medical board once in every five years.

These regulations must be implemented by the Director-General of Pensions and appeals aginst any decision given by him could be made to the Secretary to the Ministry of Public Administration and Home Affairs and the Secretary's decision shall be final.

Application for permit

Question: What is the procedure to be followed to obtain a permit to build a Hotel?

Answer : Coastal development permit is a written document that grants legal authorization to engage in or conduct activities which are likely to alter the physical nature of the coastal zone.

The standard application form (photocopies not accepted) available in the Coast Conservation Department offices or Divisional Secretariats must use to apply for a permit. The application requests, for basic information such as;

Applicant’s name and postal address

The location of the project and nature of the project

A statement of coastal erosion in the coastal reach of the proposed location

Present land use

Details of other agency approval obtained

Other documents required for application

1. Three copies of survey plans of the proposed site which are prepared within five years prior to the date of tendering the application.

All copies should certify as true copies.

2. Three copies of building plans including floor area (Certified by an Architect).

3. Proof of payment for the specified permit fee: (The specified permit fee is varying according to the floor area of the proposed building and the relevant fee could be paid by cash or postal/money order or cheque drawn in favour of Director, Coast Conservation).

4. In case of construction of piers - jetties, coast protection structures and marinas a clearance letter must be obtained from the relevant District Fisheries Extension Office of the area.

The Dept. will allocate a special number for each application (Eg. PA/13/RS/97/23). In all future correspondence this permit application number must be referred to by the respective developers. On completion of administrative check in procedure a site inspection will be carried out by the officers of CCD. After careful screening by the Planning committee at the Department, a permit will be granted with conditions or denied. If your permit is denied, you may appeal to the Secretary of the Ministry of Fisheries and Aquatic Resources Development or if you are eligible under the guidelines given in the CZM Plan you may submit a Variance application to the Secretary/Chairman of the Coast Conservation Advisory Council

Prohibited activities

Question : What are the prohibited activities in a coastal zone under the Law?

Samantha,
Mount Lavinia

Answer: The following activities are prohibited by law, within the coastal zone.

Removal of corals other than for research purposes

Development within the designated protected areas much as National parks/sanctuaries.

Approval will not be granted for any development activity National Parks and sanctuaries located within the coastal zone including Vilpaththu, Yala, Kuman, Panama National Parks/Sanctuaries.

Removal of sand except in areas identified by Coast Conservation Department & any development activity within sand dune areas.

A structure free set-back (buffer zone ) should be maintained from the seaward side of the fore dunes up to the landward toe of the back dunes, where the total width of the fore dunes (primary dunes) and the back dunes (secondary dunes) is more than 100 metres at Kalpitiya, Talavila, Udappuwa, Hambantota Koholankala, Kirinda in the west and the south coast and 200 metres at Panama, Potuvil, Thirukkovil, Manalkadu, Kashurina beach and the Mannar peninsular in the east and the north coast.

Development within a radius of 200 m of archaeological, historical and religious sites designated by the Department of Archaeology

Any development activity that will significantly degrade the quality of any area designated as being exceptional value .

If you need any further particulars regarding above, please contact;

Coastal Resources Development Division and the following Regional Offices.

Coast Conservation Department

New Secretariat

Maligawatta, Colombo – 10, Sri Lanka
Fax : 2438005 Phone : 2449754
Website : www.ccd.gov.lk

Coast Conservation Regional Office

‘Sarasavi’, Bataduwa, Galle., Phone : 09-2234832
Moratumodera, Moratuwa, Phone – 011 – 2658930
Negombo, Phone - 031-2238400

Report of the loss passport

Question: I have lost my passport. What should I do? Can I apply for a new one?

Harshana,
Mahara

Answer: If your passport has been lost or stolen you should immediately report it to the nearest Police Station and forward a copy of the police report to the Controller General of Immigration & Emigration. If applying for a fresh passport, this police report must be submitted along with the application form. Fine for loss of a valid passport (M series passports which is valid for 10 years from the date of issue). A fine of Rs. 10,000.00 will be imposed.

Elders' problem

Question : I am 60 years. I live in a Elders' Home. My children are doing well in the Private Sector. Can I file a maintenance case against my children. They are totally neglecting me. Please help me.

Gamunu,
Lansigama

Answer: Under the Protection of Elders Act No.9 of 2000 you can get protection. Under the said Act you can file a case against the children to get maintenance from them through the Maintenance Board. The Maintenance Board will inform the children to pay maintenance to the parents. If they are not willing to pay maintenance, the Magistrate Court can enforce the order. The Legal Aid Commission has set up an Elders Desk which handles cases of this nature. If you need any advice, you can visit our Head Office situated at No.129, Hulftsdorp Street, High Court Complex, Colombo 12. Tel No 0112-433618

Passport

Question: My mother is 80 years old. She is unable to get her Birth Certificate as the Registrar of Births says her birth has not been registered. Can I get a passport for her without the birth certificate?

Lasantha,
Weerawila

Answer: You can obtain a Passport for your mother who is a Senior Citizen without her Birth Certificate. Your mother has to fill the Passport Application form with five coloured passport size photographs and submit the same to the Dept.of Immigration & Emigration at Punchi Borella with the following documents:-

1 National Identity Card (with photocopy) if he possesses one,

2 Probable Age Certificate issued by the Medical Officer,

3 The letter issued by the Registrar of Births stating that your father’s birth has not been registered.

4 If his children were born in Sri Lanka, copies of their Birth Certificates.

5 Marriage Certificate of your father,

6 If your father has sisters/brothers, copies of their Birth Certificates.

7 Affidavit stating that your father has no Birth Certificate.

If you submit the passport application form with the above mentioned documents to the Department of Immigration and Emigration, they will issue your mother with a passport since your mother is a Senior Citizen. Otherwise the Birth Certificate is a necessary document to obtain passport.

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[Types of permits]

Question: What are the permits that has to be obtained before doing any development work within the coastal zone?

Answer: Two types of permits are issued for development activities within the coastal zone. A permit issued by the Director Coast Conservation Department referred to as a Major Permit. A permit issued by the Divisional Secretary on behalf of Director is referred as Minor Permit.

Major permit

It is necessary to obtain a major permit issued by the Director of Coast Conservation for the following development activities in the coastal zone.

A Major permit is required for the following activities.

Tourism, commercial and industrial structures

Recreational/sports structures

Harbour structures and navigational channels

Roads, bridges and railway lines

Public and religious structures

Shoreline protection works

Sewage treatment facilities and ocean outfalls

Aquaculture facilities

Waste water discharge facilities

Disposal of solid wastes

Dredging, filling landscaping and grading

Removal of sand, sea shells or vegetation

Mining and reclamation

Removal of corals for research

Breaching of sand bars.

Reclamation

Installation of oil, air, water pipes and electricity lines).

Any other development activity that will alter the physical nature of the coastal zone.

Minor permit

For Minor permits such as construction of small houses, removal of small quantity of sand you must consult Divisional Secretary of your area before commencement of such activities.

A minor permit is issued by the Divisional Secretary for the following activities.

Dwelling houses and related structures of total floor area less than 1000 sq. feet (93 sq.m)

Small scale commercial structures total floor area less than 350 sq. feet (32.5 sq.m)

Removal of sand up to two cubes from locations specified by the Coast Conservation Department.

Removal of sand bars to prevent floods

All public works within the coastal zone are subject to Coast Conservation Department permit procedure. Hence Public Institutions must consult, Coast Conservation Department prior to commencing the development activities.