Matrimonial Relief under Personal Laws in Sri Lanka Shanas Siddeek

1. Family Law

2. MATRIMONIAL RELIEF UNDER
PERSONAL LAWS
BY SHANAS SIDDEEK

3. The role of family law is to regulate the creation of
marriage relationships, parental rights and duties,
rights of legitimate children, dissolution of marriage
and property rights of marriage.
Marriage is the most important institution among
mankind as it provides a mechanism for the creation
of socially and legally accepted persons who enjoys
legal rights in a society.

4. LAWS GOVERNING MARRIAGE RELATIONSHIP
GENERAL LAWS
Roman Dutch Law (RDL)
English Law (EL)
PERSONAL LAWS
Kandyan Law
Muslim Law
Tesawalamai
Marriage Registration Ordinance No.19 of 1907 (MRO)
Applies to people governed by General law
Tesawalamai and Tamils
Low country Sinhaleese
Kandyans have the choice either to be governed by
MRO or Kandyan Law
 Kandyan Marriage and Divorce Act No.44 of 1952
(KMDA)
Applies marriages and dissolution of persons
governed by Kandyan Law
 Muslim Marriage and Divorce Act No.13 of 1951
(MMDA)
Regulates the marriages between persons who
profess Islam

5. Governed by Kandyan Marraige and Divorce Act No.44
of 1952 (KMDA)
Chapter iv of the KMDA states about Divorces from
Section 32 - Section 36
MATRIMONIAL RELIEF UNDER KANDYAN LAW

6. Section 32 of KMDA states that the dissolution of a Kandyan
marriage shall be granted on any of the following grounds
①Adultery by the wife after marriage
②Adultery by the husband, coupled with incest or gross
cruelty
③Complete and continued desertion by the wife for two
years
④Complete and continued desertion by the husband for two
years
⑤Inability to live happily together, of which actual separation
from bed and board for a period of one year shall be the
test
⑥Mutual consent
GROUNDS OF DIVORCE

7. Section 33 of KMDA
A male party to the dissolution of marriage can apply on the grounds of
☆ Adultery by wife after marriage
☆ Complete and continued desertion by the wife for two years
☆ Inability to live happily together, of which actual separation from bed
and board for a period of one year shall be the test
A female party to the dissolution of marriage can apply on the grounds of
☆ Adultery by husband, coupled with incest and gross cruelty
☆ Complete and continued desertion by husband for two years
☆ Inability to live happily together, of which actual separation from bed
and board for a period of one year shall be the test
DIVORCE

8. ☆ Application should be made to the District Registrar in which the
party applicant resides.If the party is outside the Kandyan province
then application should be made to the District Registrar of the
district in which the applicant reside or the marraige is registered.
☆ Application should be in writing.The name in full and address of
each party to marriage, nature of marriage (diga or binna), number
of surviving childern, the ground of divorce, and signature should
be mentioned.
☆ The District Registrar has power to dispose of the application by
making an order granting dissolution or refusing to grant
dissolution.
☆ Section 34 of KMDA declares that any party aggrieved by the
decision of the District Registrar may make an appeal to the
District Court through the District Registrar.
PROCEDURE FOR APPLICATION

9. ☆ Under Kandyan Law granting divorce is accepted for both
matrimonial fault and breakdown of marriage.
☆ Obtaining divorce procedure is easier than General Law.
☆ No need to take the case to formal court, simple procedure for
a out of court settlement
☆ No need of spending a large amount of money for Lawyers.
☆ No need to waste the time and energy for years.
ADVANTAGES OF KANDYAN LAW ON MATRIMONIAL RELIEF

10. Muslim Law court does not adopt a strict attitude
towards Matrimonial relief
MATRIMONIAL RELIEF UNDER MUSLIM LAW
Governed by Muslim Marraige and Divorce Act No.13 of 1952 (MMDA)
and concepts of Islamic Law
Part iii of the MMDA states about REGISTRATION OF
DIVORCESS from Section 27 - Section 33

11. Types of Divorces available under Islamic law
a) Divorce on the mutual consent of both
parties- Mubarat
b) Divorce by the husband- Talaq
c) Divorce by the wife
֍ Fasah
֍ Khula
MATRIMONIAL RELIEF UNDER MUSLIM LAW
Mubarat
• When both parties to the marriage feel that their marriage relationship has
broken down, both the husband and wife mutually agree to divorce each
other.
• The legal effect of Mubarat is irrevocable type of divorce.

12. Divorce by husband
 Divorce by husband is known as Talaq or Talak
 This type of Talaq takes place when husband makes a
pronouncement to effect that marriage is dissolved.
 Here husband need not give reasons for the divorce.
 There are two different forms of Talaq
֍ Revocable form
֍ Irrevocable form
MATRIMONIAL RELIEF UNDER MUSLIM LAW

13. Revocable form
• Does not the marriage immediately
• Parties could resume martial relationship before Talaq becomes irrevocable.
There are two forms of revocable Talaq
1.Talaq Ahsan-Laudable
2.Talaq Hasan-Very proper
1.Talaq Ahsan-Laudable
• This is the mostly approved form of Talaq by Mohammedean Law.
• This consist of only single pronouncement by the husband.
• Pronouncement should be made within the term of tuhr (purity; not in
menstruation)
• If no consummation has taken place can pronounce even if wife is in
menstruation.
MATRIMONIAL RELIEF UNDER MUSLIM LAW

14. 2.Talaq Hasan-Very proper
● This form of Talaq consist of three successive pronouncement of Talaq
made during consecutive menstrual period.
● No sexual intercourse during any of tuhrs.
● Divorce becomes complete irrevocable on the 3rd pronouncement,
at any time before the 3rd pronouncement is made divorce is revocable.
● Pronouncement should be made of intervals of 30 days between
each pronouncements.
MATRIMONIAL RELIEF UNDER MUSLIM LAW

15. MATRIMONIAL RELIEF UNDER MUSLIM LAW
Irrevocable form
● This is known as talaq-ul-bi-daat or talaq-i-bidal
● Highly disapproved form of Talaq in Quranic law
● Consist of three pronouncement made law during a single tuhr either in
one sentence.
Ex:-Divorce you thrice or in separate sentence.
I divorce you!
I divorce you!
I divorce you!
● Even a single pronouncement made during a tuhr showing the intention
to dissolve the marriage irrevocably.

16. MATRIMONIAL RELIEF UNDER MUSLIM LAW
According to Section 27 of MMDA where a husband desires to divorce his wife the procedure
laid down in second schedule of MMDA shall be followed.
-a husband to intend to Talaq on his wife should give notice of the intention to the Quazi of
to area she resides
-Quazi should attempt a reconciliation.
-Within 30 days no reconciliation is effected can proceed before to Quazi and two witness.
-Quazi should record to pronouncement, not the reason for divorce
-Quazi should again try to reconciliation divorce within 30 days of pronouncement.
-If no reconciliation effected, it should be noted to wife.
-Husband should appear before the Quazi on a fixed date by the Quazi should register the
divorce.

17. Divorce by wife
● Even wife can seek divorce on husband. There are two forms
-Fasah
-Khula
Fasah
● This form of divorce takes place at the instance of the wife who asks for divorce
without the consent of the husband on the basis of fault on the part of husband.
● Sec 28(1) of MMDA states about Fasah.
● Wife should prove on which ground she is seeking divorce such as
☆ physical illness
☆ cruelty such as assault, non maintenance
☆ malicious desertion
☆ adultery
MATRIMONIAL RELIEF UNDER MUSLIM LAW

18. Khula
● This form of divorce is available to a wife when
she is unhappy in her marriage or when she cannot
keep with him the bounds set by god.
● This form of Divorce is obtained with the consent
of the husband where in Fasah, husbands consent is
not obtained
MATRIMONIAL RELIEF UNDER MUSLIM LAW
Third Schedule of the MMDA declares the
RULES TO BE FOLLOWED IN THE CASE OF DIVORCE BY A WIFE

19. ANY QUESTIONS?

20. THANK YOU