Abstract:
Generally, the customary laws treat women inequitably as far as their property rights
within the marriage are concerned. Although a married woman, under the common law
of the Island, the Kandyan and Muslim law, can handle her properties as a femme sole
but not under the Thesawalamai due to the application of the concept of marital power.
The discrimination is a reflection of the patriarchal system where the man is the head
of the family and can have the control over the others. Thus the impact of the marital
power causes injustice to the women who are governed by the Thesawalamai in the
post-conflict Sri Lanka. Although the voices raised for the repeal of the concept of
marital power under the Thesawalamai, the legislature intentionally kept the principle
on the footing that the concept of marital power was derived from the customary
practice of the community and the Constitution of 1978 expressly recognized such
customary law despite the inconsistency with the fundamental rights provisions.
Therefore, this research intends to study the origin and development of the marital
power and its incorporation into the Theswalamai to ascertain whether the marital
power was exercised as of a customary practice of the people governed by the
Thesawalamai. The result of this study proposes the means to balance the customary
values with the modern human rights standards. It is a qualitative mode of study based
on the ordinances, judicial decisions, and academic writings.
