Filing a Case
Some Domestic Violence Acts (as in India) are not gender neutral, and permit only women and girls to
seek and obtain relief and remedies for domestic violence. Sri Lanka’s law is gender neutral and men may
also bring these actions. There is a risk that the dimension of gender based discrimination in domestic
violence can be forgotten. It has been found for instance that men file cases in response to a case filed by
women; courts and police therefore must be cautious in assessing the bona fides of a male applicant who
alleges DV by a woman [See annex].
The person who files the case is described as “the aggrieved person.” An adult woman or man who is an
“aggrieved person” can come to court directly and seek relief. (S. 2 (2)(a)). A woman can therefore file these
proceedings herself. In the case of a girl child, the proceedings can be brought by the parents, guardian,
persons with whom she resides or a person authorized to do so in writing by the National Child Protection
Authority. (S. 2 (2)(b)). The Police can also file a case on behalf of an adult woman or a girl child. (S. 2 (2)(c)).
Since the latter type of application is a third category referred to in S. 2 (2) of the Act, women can and should
bring these cases as individual complaints, as they can retain their own lawyers for this purpose.
The Procedure the Magistrate must Follow
The purpose of bringing this action is to obtain speedy relief. This is why instead of going through a
procedure of hearing witnesses the judge hears the parties and considers affidavits by any other person
who has knowledge of the incidents, (S. 2 (4)). The judge considers the application and then decides
whether to make an interim order of protection under S. 5 of the Act, until the conclusion of the inquiry.
The purpose of this is to ensure the safety of the aggrieved person. In any event the Act states that an
inquiry into these proceedings including after the interim order must take place swiftly within 14 days
(S. 4) and the other party is noticed to be present and state his objection to the making of a Protection
Order. The Act clarified that one spouse can give evidence against another spouse, despite the marriage
relationship (S. 16). We have noted that each person can give evidence in civil proceedings, but only in
cases of violence against each other can a spouse be a witness for the prosecution.
The Act makes it very clear that the Court can not merely prohibit acts of violence but make a wide
range of orders as part of the Interim Protection Order. The clear purpose is to protect and prevent acts of
violence in the period of two weeks before the inquiry is held. (S. 5 (1)(a) and (b) and S. 11). The Interim
Order can for example prohibit:
1. entering or occupying the residence, including shared residence or place of work or school
2. having contact with a child of the woman bringing the case
3. establishing contact
4. committing acts of violence against any person assisting her.
S. 11 recognises a wide scope for Orders and this is relevant to RHR in particular. The Court can
prohibit the person in engaging in any other conduct that will be detrimental to a woman’s
or girl child’s “safety health or wellbeing” or any other person (such as a child) who may need
to be protected from the abuse. (S. 11 (1)(k)).
Economic violence is also prevented through certain other orders which can be made, prohibiting the
prevention of access to shared resources, selling, transferring, alienating or mortgaging the matrimonial
house so as to make her destitute. S. 11 (1)(l). The latter phrase seems to be too restrictive, as the fact
32
COMPENDIUM ON LAW, GENDER BASED VIOLENCE AND REPRODUCTIVE RIGHTS