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Home > Sri Lanka > Family Laws
Family Laws Sri Lanka
FAMILY LAWS SRI LANKA
 
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.
 
MARRIAGE LAW SRI LANKA
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 ethic and religious communities. Kandyan Sinhalese may choose to be governed by the general law or Kandyan law. The ordinance does not govern marriages contracted between Muslims.
 
MARRIAGE AGE 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 satis- fied 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.
 
PROHIBITED MARRIAGES
The ordinance renders marriage between two individuals within prohibited degrees of kinship void. Marriage or cohabitation between such parties is punishable with imprisonment.
Provisions in the penal code regarding incest further enhance the penalty for such marriages.
The ordinance prohibits polygamy.
 
MARRIAGE REGISTRATION
Registration of marriages is not mandatory under the ordinance. An entry made in the marriage register is simply the "best evidence" of the marriage. Thus, customary marriages, including those solemnized according to Hindu, Buddhist and Christian rites and rituals, have been accepted as valid despite the fact that they are unregistered. The law recognizes a rebuttable presumption of marriage by habit and repute. Thus, upon proof that a man and woman have cohabited as husband and wife, the law presumes that they are living together in a valid marriage, unless the contrary is proved. Courts have emphasized that cohabitation does not conclusively prove the fact of marriage, thus emphasizing the rebuttable nature of the presumption.
 
BINNA, DIGA MARRIAGES
Whether the marriage is binna or diga depends on the intention of the parties. A marriage is presumed to be diga if there is no evidence as to its character. The act specifies that a valid Kandyan marriage renders legitimate any children born to the parties prior to such a marriage. This means that any premarital offspring are automatically legitimized if the parents subsequently enter into a valid Kandyan marriage. Children so legitimized are entitled to the same rights as those born subsequent to a marriage.
 
RELEVANT LAWS AND POLICIES
  1. Marriage Registration Ordinance, 1907; and Marriage Registration (Amendment) Act, 1995
  2. Kandyan Marriage and Divorce Act, 1952; and Kandyan Marriage and Divorce (Amendment) Act, 1995
  3. Muslim Marriage and Divorce Act, 1951
  4. Civil Procedure Code, 1889
  5. Maintenance Act, 1999
  6. Adoption of Children Ordinance, 1941; amended in 1992
MUSLIM MARRIAGE AND DIVORCE ACT
The Muslim Marriage and Divorce Act governs marriage between Muslim parties. The act specifies some requirements for a valid marriage; those requirements left unspecified are governed by the law of the sect to which the parties belong. The act does not specify a minimum age for valid marriage.
However, where a marriage involves a girl below age 12, the act requires consent of the Quazi (similar to a judicial officer, though legal training is not required) to register the marriage.
 
Also,under Islamic law,a minor girl has the right to repudiate the marriage upon attaining puberty. Although courts have recognized this right, the issue of whether it is an unconditional right or available only when the marriage can be proved to be against the child's interest remains open to debate. Furthermore, under the penal code, sexual intercourse with one's wife who is under age 12 constitutes rape, though this provision has not been consistently applied by the courts.
 
In Muslim law,prohibited relationships in marriage include affinity,consanguinity and fosterage (i.e.,if a woman has suckled another's child, that child cannot contract a marriage with the woman or her natural children).
 
The Muslim Marriage and Divorce Act requires the consent of a wali (guardian) to the marriage for women of the Shafi sect, though the Quazi may dispense with the consent requirement if it is unreasonably withheld.
 
The act also requires that the wali communicate the bride's consent to the marriage to the Quazi, though it does not provide for a mechanism to actually manifest such Consent.
 
A woman of the Hanafi sect is permitted to enter into a marriage contract on her own, as she is freed from guardianship upon attaining puberty. Polygamy is permitted under the Muslim Marriage and Divorce Act. The act imposes an obligation on the husband to give notice to the Quazi of his intention to contract a subsequent marriage.
 
Courts have stressed that co-wives must receive equal treatment in relation to material goods, though the Quazi have no duty to determine the actual ability of the husband to provide for his wives equally and justly.
 
In an attempt to curb the practice of non-Muslim males converting to Islam merely to circumvent stringent divorce laws under the general law, a 1998 landmark Supreme Court decision held that a second marriage upon such conversion would be void, unless the first marriage was legally dissolved.
 
Non-registration of a marriage does not affect validity under the Muslim Marriage and Divorce Act.
 
However, the act does impose a duty to register a marriage on specified persons, the failure of which constitutes an offense.484
 
LAWS GOVERNING TAMILS
The Marriage Registration Ordinance governs marriage among Tamils.
 
DIVORCE LAWS
 
The Marriage Registration Ordinance and the Civil Procedure Code constitute the general law on divorce.485 The provisions of the ordinance firmly establish divorce as faultbased and case law has reaffirmed this concept.
Grounds for divorce under the ordinance are the following:
  1. adultery;
  2. malicious desertion; and
  3. incurable impotence at the time of marriage.
Cruelty is not a ground for divorce, although it may be a factor in determining malicious desertion. Physical illtreatment per se is also not a ground for divorce under the general law, but it is a cause for legal separation. In cases of adultery,courts have required proof beyond reasonable doubt as the standard of proof;they also have required the specification of the date and place of the act. An aggrieved spouse may recover damages from the person with whom adultery is committed. Malicious desertion has been judicially defined as "the deliberate and unconscientious,definite and final repudiation of the obligations of the marriage state … and it clearly implies something in the nature of a wicked mind." The intent to terminate the marital relationship and the actual termination of cohabitation are both necessary elements. The law also recognizes constructive desertion,whereby the innocent spouse is forced to leave because of the behavior of the other spouse.
In addition to the grounds for divorce under the Marriage Registration Ordinance, the Civil Procedure Code permits either spouse to petition for dissolution of marriage two years from the date of a decree of judicial separation or, notwithstanding such decree,where there has been a separation a mensa et thoro (from bed and board) for seven years.492 However, courts have not been consistent in applying this provision,and the current law holds that separation alone is an insufficient ground for divorce.493 The general law on divorce as it stands is thus firmly fault based. However, the law is currently under scrutiny and a draft Matrimonial Causes Act, which explicitly introduces irretrievable breakdown of marriage as a new ground of divorce, is under consideration.
 
LAWS GOVERNING KANDYAN SINHALESE
Persons subject to Kandyan law may be married under the Marriage Registration Ordinance or the 1952 Kandyan Marriage and Divorce Act.
Pursuant to a 1995 amendment to the Kandyan Marriage and Divorce Act, the minimum age of marriage was raised to 18 for both sexes. Marriages in violation of this age requirement are void unless the parties cohabit as husband and wife for one year after attaining the legal age, or if a child is born within marriage before either party has attained the legal age. The act prohibits marriage between certain closely related individuals. It renders a second marriage invalid if the first is not legally dissolved. As opposed to the general law's lack of a registration requirement, registration is a crucial aspect of the act. The consequences flowing from a Kandyan marriage depend on whether the marriage is contracted in diga or binna. In a diga marriage, which derives from a patriarchal system, the bridegroom brings his bride to his own house or that of his parents,and she becomes a member of his family for the duration of the marriage.466 In a binna marriage, which is perhaps older in origin and derives from a matriarchal system, the husband is brought to the house of his wife or her family.
 
The Kandyan Marriage and Divorce Act governs divorce among only those Kandyans married under the act. The act recognizes some differing grounds of divorce for men and women. Divorce may be sought on the following grounds:
  1. adultery by the wife;
  2. adultery by the husband, coupled with incest or gross cruelty;
  3. continued and complete desertion for two years;
  4. inability to live together, of which actual separation from bed and board for one year is the test; and
  5. mutual consent.
Under the act, an application for divorce is made to the district registrar,who may use discretion in granting or refusing to grant the divorce. The Marriage Registration Ordinance governs divorce between Kandyans who choose to be married under the general law.
 
LAWS GOVERNING MUSLIMS
Muslim personal law recognizes different grounds of divorce for the husband and the wife; spouses do not have equal rights to divorce. It also recognizes grounds for divorce on fault- and non-fault-based grounds. The rights and duties of the parties are determined according to the sect to which the person belongs.
Divorce by the husband is known as talak. This is the "repudiation of the marital tie by the unilateral act of the husband," by making a pronouncement that the marriage is dissolved.
The husband may pronounce talak without following any prescribed judicial procedures.
Furthermore, the pronouncement need not be made in the presence of or communicated to the wife.
The board of Quazis and the Supreme Court share the view that pronouncement of talak need not be communicated to the wife.
The Muslim Marriage and Divorce Act specifies the procedure in the event of divorce by the husband. These rules are comparable to the most progressive legislation on talak in the Muslim world.
A significant feature of the procedure is the duty of the Quazi, who receives notice of the intention to pronounce talak, to attempt to reconcile the parties with the assistance of relatives and elders of the community.
Divorce by the wife is known as fasah divorce in Muslim law, and although the term is not used in Sri Lanka,the Muslim Marriage and Divorce Act recognizes the right of the wife to divorce on the grounds identified with fasah divorce.
The availability and scope of fasah divorce depends on the sect to which the parties belong.
Maliki law, which applies to the Maliki sect, is the most liberal in this regard.
 
The grounds available to the wife for fasah divorce include:
  1. failure or inability of the husband to provide support;
  2. malicious desertion;
  3. cruelty and ill-treatment;
  4. "continued dissension and quarrels";
  5. husband's leprosy;
  6. husband's insanity; and
  7. impotence.
Divorce on the ground of ill-treatment includes mental ill-treatment as well as slanderous and false accusations of adultery.
Courts have also noted that in assessing cruelty, factors such as social conditions and actual life circumstances will be considered.
The most common grounds upon which fasah divorce is sought are failure to maintain and desertion.
In fasah divorce, the Quazi must serve notice of the hearing for divorce on the husband.
The wife's evidence must be corroborated by at least two witnesses,the failure of which may be fatal to the case.
Divorce is granted only after the maximum efforts at reconciliation have failed.
Other forms of divorce under Muslim personal law include khula and mubarat. The former is initiated by the wife and generally involves a monetary payment by the wife to the husband for her release from the marriage; the return of the woman's mahr is usually considered sufficient.
The mubarat form of divorce is based on mutual consent and does not require such payment to the husband.
A woman who has been falsely accused of adultery by her husband has the right to a form of divorce called lian. However, if at a hearing the husband rescinds his statement, lian is no longer available.
 
LAWS GOVERNING TAMILS
The Marriage Registration Ordinance and the Civil Procedure Code apply to Tamils in matters of divorce.
 
JUDICIAL SEPARATION
 
The Civil Procedure Code constitutes the general law on judicial separation. The code provides that either party may petition for separation "on any ground on which by the law applicable to Sri Lanka such separation may be granted." Thus, Roman-Dutch law grounds for separation are applicable, the essential feature of which is proof that further cohabitation has become dangerous or intolerable due to unlawful conduct by the defendant.
 
Laws governing Kandyan Sinhalese The Kandyan Marriage and Divorce Act does not include judicial separation as matrimonial remedy. However, Kandyan Sinhalese married under the general law may seek judicial separation under the Civil Procedure Code.Laws governing Muslims The concept of judicial separation does not exist under Muslim law.
 
Laws governing Tamils The Civil Procedure Code applies to Tamils in matters of judicial separation.
 
MAINTENANCE AND SUPPORT LAWS
 
The 1999 Maintenance Act is the general law on maintenance during marriage.
Instituting proceedings under the act does not preclude a person from also initiating a civil action for maintenance, in which case common law principles of maintenance would apply.
 
The act requires any spouse with sufficient means to maintain the other spouse, if such individual is unable to maintain him or herself.
 
The law in place prior to the act imposed a duty of maintenance only on a husband.
 
An order for maintenance will not be awarded if the applicant spouse is living in adultery or both spouses are living separately by mutual consent.
.
This constitutes a departure from the common law, which provides that the obligation of support continues during a period of consensual separation.
 
In cases where a wife is precluded from receiving an award for maintenance under the Maintenance Act, she may still bring a civil action to enforce her husband's common law obligation of support for her personal necessaries.
 
The Maintenance Act also imposes a duty on a parent to provide for the maintenance of all minor children, needy adult offspring (ages 18-25) and disabled offspring.
 
The Civil Procedure Code recognizes the right of either spouse to enforce the other's obligation of support while an action for divorce is pending.
 
The primary objective of the action is to enable the spouse in need to live without hardship during the litigation, and proceed with the action.
 
The applicant-spouse need only prove financial need and the other spouse's ability to provide the required support.
 
On the dissolution of marriage, courts have broad discretionary powers regarding maintenance awards under the Civil Procedure Code. A court may issue any order it thinks fit with regard to conveyances of property or monetary payments of maintenance for the benefit of either spouse.
Laws governing Kandyan Sinhalese The Maintenance Act applies to Kandyans in matters of maintenance obligations during marriage. The Kandyan Marriage and Divorce Act includes provisions on maintenance in cases of divorce. The act provides that a district registrar, in granting the dissolution of a marriage,may order the husband to pay a certain amount of money or provide other support for the maintenance of his wife, children or both. The act does not stipulate what factors the registrar should take into account in making the award, although such factors generally include the husband's ability to pay,the wife's needs, the degree of fault attributed to each party,the duration of the marriage, and the couple's standard of living.
Laws governing Muslims The Muslim Marriage and Divorce Act provides that any claim for maintenance by or on behalf of a wife, legitimate child or illegitimate child (where both parents are Muslims) falls within the exclusive jurisdiction of the Quazi. The act does not specify the principles pertaining to maintenance; instead, it provides that the law of the sect to which the parties belong should apply.
A Muslim woman's right to maintenance during marriage is derived from the concept of nafaqa,which encompasses the provision of basic needs such as food, clothing and accommodation to the wife. In contrast to the Maintenance Act, the husband has the primary obligation of providing support and a wife's own financial means are irrelevant in determining her claim for maintenance. Maintenance after divorce is not recognized under Muslim personal law. However, the Muslim Marriage and Divorce Act provides three situations in which a divorced wife may claim maintenance:
  1. until registration of the divorce;
  2. during iddat (the period of time that a divorced wife must remain unmarried); and
  3. if such woman is pregnant at the time of registration of the divorce, until she delivers the child.540 Laws governing Tamils No data is available on maintenance and support laws governing Tamils.
CUSTODY AND ADOPTION LAWS
The general law regarding custody in Sri Lanka has received little legislative attention. Those laws that do exist do not address the substantive rights of parents and deal primarily with the procedural aspects of custody cases. The principles of custody are thus governed by the residuary Roman-Dutch law. The predominant feature of the common law is the preferential custodial right given to the father,which may be denied only in instances of danger to the "life, health and morals" of the children.
A mother who seeks custody therefore has the onus of displacing the father's right. It should be noted that the general law principles of fault-based divorce have carried over into the area of custody, tipping the scale in favor of the innocent spouse. However, case law has reiterated that the paramount concern in determining custody is the child's welfare.
There is lack of guidance, statutory or otherwise, with regard to what criteria should be considered in determining the best interests of the child. Courts have in the past emphasized the "Asiatic" value system, giving primacy to maintaining family links over enhancing the mental health of the child. Recently, however, courts have also considered the child's sense of security as a factor.
 
Children Ordinance, which provides that adoption will only be permitted for the "welfare of the child." The ordinance also takes into consideration the adoptee's wishes according to the child's age and level of understanding. The ordinance was amended in 1992 to put an end to the commercialization of adoption by intermediaries who facilitate the adoption of young Sri Lankan children by foreign parents from highincome countries. The amendments prohibit giving or receiving payments as consideration for an adoption,and provide that a child may be considered for adoption by a foreign family only if no local family is available to adopt the child.
 
Laws governing Muslims
Under Muslim personal law, the mother has preferential custodial rights to minor children. The duration of this right differs among sects and is also affected by the gender and age of the child in question. Under Shafi law, a female child remains with the mother until she marries, whereas under Hanafi law, custody is with the mother only until the girl reaches puberty. Custody of male children in both Shafi and Hanafi sects is with the mother until the child reaches age seven. Under Shafi law, the boy may choose which parent to live with after age seven until puberty. Under Hanafi law, custody automatically passes to the father after the age of seven. Upon the mother's death or a determination of her unsuitability, custody devolves to the maternal relatives. Despite a mother's preferential custodial rights, a father's guardianship rights include the rights to visit the child,supervise upbringing, act as a marriage guardian, and control and manage the child's property. A mother may lose her preferential rights in special circumstances, which include the following events:
  1. her marriage to a complete stranger to her child, unless the man she marries is related to the child within certain close degrees of kinship;
  2. her misconduct, cruelty toward the child or both, which have been interpreted to include physical and moral harm;
  3. her apostasy or conversion of faith; or
  4. her change of residence, which prevents the father from supervising the children.
Despite the jurisdiction of Quazi courts in the Muslim legal system, ordinary courts have exercised jurisdiction in custody matters. In this way, they have modified some principles of Muslim law on the basis of the "welfare of the child" standard derived from the general law. The Supreme Court has held that although it would consider preferential rights in customary laws, such rights are not conclusive in custody determinations. In departing from Muslim law,courts have recognized exceptions, based on the welfare of the child, to the principle that the mother loses custody upon remarriage to a nonrelative of the child.
These exceptions are:
  1. where it is in the interests of the child that he or she remain with the mother;
  2. where remarriage was motivated by the security and comfort of the minor; and
  3. where the father does not claim the child after the woman's second marriage.
ECONOMIC AND SOCIAL RIGHTS
Property laws
Roman-Dutch law forms the bedrock of the general law on property in Sri Lanka. The 1923 Married Women's Property Ordinance constitutes the general law on matrimonial property rights. Under the ordinance, a married woman is capable of holding, acquiring and disposing of any movable or immovable property or of contracting as if she were a femme sole, without the consent or intervention of her husband. This applies to all property belonging to her at the time of marriage and property acquired or devolved to her after marriage. She also has the same remedies and redress by way of criminal proceedings for the protection and security of her separate property. The 1876 Matrimonial Rights and Inheritance Ordinance constitutes the general law on inheritance rights. The ordinance provides for equal rights to inheritance for male and female spouses:upon the death of either spouse,the surviving spouse inherits half of the deceased spouse's property. The extent of the general law's application has been limited by legislation, judicial decisions and the system of customary laws that are operative in the island. The matrimonial property and inheritance rights of Kandyan Sinhalese and Tamils are governed by their own systems. Muslims are governed by Muslim personal law.
 
Laws governing Kandyan Sinhalese
The 1938 Kandyan Law Ordinance as amended, commonly known as the Kandyan Law Declaration and Amendment Ordinance, applies to Kandyan Sinhalese in property matters. Women do not have equal intestate rights with men under Kandyan law.
Under the ordinance, legitimate sons and daughters inherit their parents' property in equal shares, although a daughter who marries in diga after the death of her father must transfer any immovable property she inherited from him to her brothers or binna-married sisters, upon their request for such property. (See "Marriage laws"for information on diga and binna forms of marriage.)
 
Laws governing Muslims
Under Muslim law,women are capable of independently acquiring, holding and dealing with property. The 1931 Muslim Intestate Succession Ordinance applies to Muslims in inheritance matters. The ordinance provides that the applicable law is that of the sect to which the party belongs. With respect to almost all sects, female heirs inherit a lesser share than male heirs of the same degree of relationship to the decedent. A widow inherits half the portion that a widower would inherit. The mother of a decedent is entitled to half of the share of the father of the decedent. Although daughters are not excluded from inheritance, their rights are diminished when sons are also present to inherit the property. Laws governing Tamils
 
The 1911 Matrimonial Rights and Inheritance (Jaffna) Ordinance applies to Tamils in property matters. Under the ordinance, movable or immovable property a woman acquires during or before marriage remains her separate property after marriage. A woman has the power to deal with her movable property during her lifetime without the consent of her husband. However, a married woman may deal with or dispose of any immovable property to which she is entitled at the time of marriage or acquires as her separate estate during marriage only with the written consent of her husband, except in the case of last wills. The ordinance provides several instances where such consent could be waived, including:
  1. where the wife has been deserted by her husband;
  2. consent is withheld unreasonably; or
  3. it is in the interests of the wife, her children or both to waive consent.
Property acquired by either spouse during marriage using the couple's shared funds or estate is called thediatheddam. The underlying concept of thediatheddam is that both spouses are equally entitled to the property from the moment of acquisition. An undivided half-share of thediatheddam vests automatically in the non-acquiring spouse. Although a husband cannot donate the wife's share of thediatheddam under any circumstances, he may sell or mortgage it for consideration. If either spouse dies intestate, the surviving spouse's share of thediatheddam remains his or her property. Under an amendment to the ordinance, half of the deceased's share devolves to the surviving spouse, resulting in ownership of three-fourths of thediatheddam by the surviving spouse. The other half of the deceased's share devolves to his or her heirs.
The ordinance provides that Tesawalamai law ceases to apply to a Tamil woman during the course of her marriage to a foreign man, but the law applies to both husband and wife in cases of marriage between a Tamil man and a foreign woman. Rights to agricultural land The 1935 Land Development Ordinance as amended provides for the distribution of land to landless farmers and enables such farmers to ultimately acquire absolute title to land initially granted to them under a permit.
 
The ordinance entitles the surviving spouse of a deceased permit holder to succeed to the alienated land and possess it under the terms and conditions of the permit.
 
The surviving spouse has this right even if she or he has not been nominated by the original permit-holder to be the successor, provided that she or he does not remarry.
 
Upon the remarriage of a spouse who was not nominated as the successor, the land devolves to the person who was nominated by the deceased or, if no person has been nominated, according to the third schedule of the ordinance.
The third schedule of the ordinance, which lists the order of inheritance, gives precedence to the male heir over the corresponding female heir.
Draft amendments to discriminatory provisions in the Land Development Ordinance are currently being considered.
 
Labor and employment
Women's labor force participation rate is 35.9%,nearly half the rate for men.
 
However, women's employment rates are increasing. The manufacturing and service sectors are the largest source of female employment. About 70% of workers in factories
 
RELEVANT LAWS AND POLICIES
  1. Married Women's Property Ordinance, 1923
  2. Matrimonial Rights and Inheritance Ordinance, 1876
  3. Kandyan Law Declaration and Amendment Ordinance, 1938
  4. Muslim Intestate Succession Ordinance, 1931
  5. Matrimonial Rights and Inheritance (Jaffna) Ordinance, 1911
  6. Land Development Ordinance, 1935
Overall are women, mostly in semiskilled and unskilled positions; moreover, some 90% of garment factory workers are women. More than a quarter of female workers are employed in the informal sector as casual laborers,agricultural workers and workers in home-based industries. Women also constitute 60% of Sri Lankans who obtain employment abroad, where the demand for Sri Lankan labor is largely for unskilled workers, particularly domestic workers. The constitution guarantees the right of every citizen to engage individually or in association in "any lawful occupation, profession, trade,business or enterprise." Other related constitutionally protected rights include those to freedom of association and freedom to form and join a trade union.
 
There are various laws that provide for paid maternity leave and other maternity benefits to female employees. The Establishments Code stipulates conditions of maternity leave for employees in the public sector. Pursuant to government regulations passed in 1992 and amended in 1997, publicsector female employees are entitled to a 12-week maternity leave irrespective of marital status, cause of pregnancy or duration of employment. Maternity benefits include two daily half-hour nursing breaks for a six-month period.Maternity leave is available for permanent, seasonal and part-time female workers in the public sector. Two separate laws govern maternity benefits for female workers in the private sector. The 1957 Shop and Office Employees (Regulation of Employment and Remuneration) Act applies to workers in shops and offices and permits a 12-week maternity leave for the first two pregnancies and a six-week leave for subsequent pregnancies. The 1939 Maternity Benefits Ordinance provides for similar leave, but applies to female workers in any "trade,"excluding employees covered under the Shop and Office Employees (Regulation of Employment and Remuneration) Act and "those whose employment is of a casual nature." The ordinance also provides for nursing breaks and the establishment of crèches for female workers with children under age five.604 Both laws prohibit employers from terminating their female employees on the basis of pregnancy, confinement or any related illness. Employers may also not give notice of termination to a woman while she is on maternity leave. The Maternity Benefits Ordinance allows for employers in the estate sector to arrange for the provision of "alternative maternity benefits" to their female workers. Women who refuse to accept the alternative benefits are not entitled to receive the standard benefits provided under the ordinance. Studies have revealed varying degrees of compliance with provisions on maternity benefits, with some showing signifi-cant noncompliance. However,the government maintains that labor inspections have failed to reveal noncompliance and that it has not received complaints from any person. Certain labor legislation excludes or restricts women from some types of employment. Under the 1937 Mines (Prohibition of Female Labour Underground) Ordinance,women are excluded from working in underground mines, with some exceptions.
 
The 1942 Factories Ordinance was recently amended to increase the number of overtime hours women and young persons may work; however, such employment may be prohibited or restricted "if it appears that such overtime employment will prejudicially affect the health of such women or young person."
 
Until amendments were made in 1984 to the 1956 Employment of Women,Young Persons and Children Act and the Shop and Office Employees (Regulation of Employment and Remuneration) Act, women were prohibited from working at night, subject to certain exceptions.
Under the amended acts, the prohibition was lifted. The Women's Charter calls for women's equality in employmentrelated matters, both in the formal and informal sectors. The charter enjoins the state to take "appropriate measures" to ensure women's equal rights to:
  1. economic activities for financial benefits;
  2. opportunities in employment in the public, private and informal sectors at all levels of employment without gender-based discrimination in recruitment, placement, promotions, conditions of service, and job security;
  3. remuneration, including benefits;
  4. treatment with respect to the value of their work and in evaluating the quality of their work;
  5. social security, particularly in cases of retirement,
RELEVANT LAWS AND POLICIES
  1. Establishments Code
  2. Shop and Office Employees (Regulation of Employment and Remuneration) Act, 1957
  3. Maternity Benefits Ordinance,1939
  4. Mines (Prohibition of Female
  5. Labour Underground) Ordinance,1937
  6. Factories Ordinance, 1942; and
Factories (Amendment) Act, 2002
  1. * Employment of Women,Young Persons and Children Act, 1956; and Employment of Women,Young Persons and Children, the Factories and the Shop and Office Employees (Regulation of Employment and Remuneration)(Amendment) Act, 1984
  2. * Women's Charter, 1993


 
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