Capacity of A Marriage Party in Sri Lanka Identify

A written agreement between two or more states while establishing their obligations and rights on
a particular subject is known as an International Convention. With the ratification, the states
committed to a contract to incorporate the provisions of the treaty into their national legislation or
to modify their existing law to be inconformity with the convention. As such, most states consider
the international laws are superior to their domestic laws. Sri Lanka has ratified to the United
Nations Convention on the Rights of the Child (CRC) 44/25 of 20 November 1989 and Convention
on the Elimination of All Forms of Discrimination against Women of 18 December 1979 (CEDW).
Article 1 of CRC defines every human being below the age of eighteen years as a child. Further,
Article 2 states that States Parties shall respect and ensure the rights set forth in the present
convention to each child within their jurisdiction without any discrimination of any kind and shall
take all appropriate measures to ensure the child is protected against all forms of discrimination or
punishment on the basis of the status, activities, etc. Article 16 of CEDW declares that states parties
shall take all appropriate measures to eliminate discrimination against women in all matters
relating to marriage and family relations and in particular shall ensure, on a basis of equality of
men and women. Constitution 12 (4) read with 12 (1) of the Constitution of the Democratic
Socialist Republic of Sri Lanka states that nothing in this Article shall prevent special provision
being made, by law, subordinate legislation or executive action, for the advancement of women,
children or disabled persons. Above ratifications to the conventions together with the provisions
in the Constitution states the position of the Government of Sri Lanka on the protection of the
rights of women and child. Further, Marriage Registration Ordinance No. 19 of 1907 (MRO),
Kandyan Marriage and Divorce Act No. 44 of 1952 (KMDA) and Muslim Marriage and Divorce
Act No. 13 of 1951 (MMDA) regulates the aspects of the marriages in Sri Lanka.
In 1866 the marriage was defined as the voluntary union for life of one man and one women to the
exclusion of all others (Hyde v. Hyde and Woodmansee , 1866) and is not suitable for the
marriages in the 21st century which involves many complexities including the same-sex marriage.
Bellinger v. Bellinger stated a rather more modern form of marriage as a a contract for which the
parties elect but which is regulated by the state, both in its formation and in its termination by
divorce, because it affects status upon which depend a variety of entitlements, benefits and
obligations. Sri Lanka has recognized two types of marriages; statutory marriage and customary
marriage. The statutory and customary requirements that has to be met by the parties to the
marriage have been clearly defined in above three statutes.
One of the most important requisite defined in these statutes is the capacity to marry. United
Nations Convention on Consent to Marriage, Minimum Age for Marriage and Registration of
Marriage, for which the Sri Lanka is a party, states the minimum age for marriage should be fifteen
years of age. The General Law, Tesawalamai and Kandyan Law has defined minimum age for
marriage as 12 years for female and 14 years for male before 1995 and amendment to MRO and
KMDA states the minimum age for marriage as 18 years for the persons governed by General
Law, Tesawalamai and Kandyan Law since 1995. In Thiagarajah v. Kurukkal it was held that
marriage between parties below the minimum age for marriage is null and void. However,
according to the S. 4 of the KMDA a marriage between Kandyans who are below the lawful age
for marriage is valid if both parties cohabit as husband and wife for a period of one year after the
party or both parties has attained the lawful age of marriage or a child is born of the marriage
before the party or parties attain the lawful age of marriage. MMDA does not specify a minimum
age for marriage whereas S. 23 read with S. 47 (1) (j) declares that the consent of the Quazi is
required for the marriage of a girl who is below the age of 12 years.
An overview on how the governments have taken steps to protect the rights of the women and
child is important to understand how they have developed the legal framework to protect the rights
of women and child. In 1961, the government of Singapore has passed a legislative act called
Women’s Charter to protect and advance the rights of women and girls in Singapore and guarantee
the legal equality of women in legally sanction relationships except in the area of Muslim marriage
which is governed by the Administration of Muslims law act (Women's Charter, 1961). Section 9
of the act states a marriage between persons either of whom is below the age of 18 years shall be
void unless solemnization is authorized by the Minister under section 21.

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A written agreement between two or more states while establishing their obligations and rights on

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