Child custody & guardianship in Sri Lanka is one of the most emotionally charged and legally complex aspects of family law. In Sri Lanka, the law around these issues has undergone a gradual transformation – moving away from rigid patriarchal traditions toward a more child-centered approach.
But how does Sri Lanka’s system compare to other jurisdictions like England or countries that follow international conventions such as the UN Convention on the Rights of the Child (CRC)? In this article, we unpack Sri Lankan custody and guardianship law and compare it with key global standards.
What Do Custody & Guardianship Mean?
In simple terms:
- Custody refers to the physical care of the child (where and with whom the child lives).
- Guardianship refers to legal authority over decisions such as schooling, religion, and medical care.
In Sri Lanka, both concepts are rooted in Roman Dutch Law (RDL) but are now interpreted through modern constitutional values, international obligations, and evolving case law.
Custody & Guardianship in Sri Lanka
Historically, fathers had a preferential right under RDL. However, modern Sri Lankan courts increasingly prioritize the best interests of the child, especially in post-divorce or separation cases.
Key Legal Standards
- Section 621 of the Civil Procedure Code (CPC): Upon divorce or separation, courts are given wide discretion to make custody decisions.
- Best Interests Standard: Dominant in cases like Fernando v Fernando [23 NLR 31] and Weragoda v Weragoda [66 NLR 083] (1961), this principle now overrides older patriarchal presumptions.
Noteworthy Child Custody Case Laws in Sri Lanka
- Kamalawathie v. De Silva [64 NLR 252] – The court prioritized the child’s emotional well-being with the mother over the father’s legal entitlement.
- Jeyarajan v Jeyarajan [1999 01 SLR 113] – Recognized the role of a child’s emotional bond and stability over the father’s delayed claim to custody.
- Madulawathie v Wilpus [70 NLR 090] – Reaffirmed that while the father holds preferential rights, they can be set aside in the child’s interest.
Child’s Voice Matters
Cases like:
- Re Evylin Warnakulasuriya [56 NLR 525]
- Gooneratnayaka v. Clayton [31 NLR 132]
show that courts may consider the child’s preference, especially when they are of an age to understand the situation.
Custody Under Sri Lanka’s Personal Laws
Sri Lanka recognizes multiple personal laws based on ethnicity and religion.
Tesawalamai (for Tamil communities)
- Fathers generally have primary rights.
- If the father remarries, the mother’s family (usually maternal grandmother) may gain custody.
Kanapatipillai v. Sevakolunthu [14 NLR 484]
Muslim Law
- Follows the concept of Hizanat:
- Mothers have custody of boys until age 7 and girls until puberty.
- Custody may transfer based on the child’s maturity and preferences.
Kandyan Law
- Historically, the type of marriage (Diga vs. Binna) determined custody.
- Modern law applies the best interests test across the board.
How Sri Lanka Compares Internationally
Let’s examine how Sri Lankan custody and guardianship laws compare with other leading legal systems, particularly English Law and international conventions like the CRC.
Comparison with English Law
England operates under the Children Act 1989, which focuses on parental responsibility rather than “ownership” of the child.
Key Concepts
- Parental responsibility is shared, regardless of marital status.
- Gillick Competence: A mature child can consent to medical treatment or express preferences in custody disputes.
Gillick v West Norfolk (1986) – Set the standard for respecting a child’s maturity and autonomy.
Hewer v Bryant (1970) – Parental rights diminish as a child matures.
Sri Lanka vs. England
| Aspect | Sri Lanka | England |
| Child’s views | Considered in limited cases | Legally recognized and given significant weight |
| Joint custody | Rare | Encouraged post-divorce |
| Father’s rights | Still seen as preferential in some cases | No preference—focus on parenting ability |
| Personal laws | Strong influence (Muslim, Tesawalamai) | Uniform civil law |
International Law and CRC Alignment
Sri Lanka is a signatory to the Convention on the Rights of the Child, which shapes much of its modern jurisprudence.
Key CRC Principles:
- Article 3: Best interests of the child should be the primary consideration.
- Article 5: Respect the evolving capacities of the child.
- Article 12: The child has the right to express views freely.
Sri Lankan courts have started integrating these principles, especially in more recent cases like Jeyarajan and Fernando.
Final Thoughts
Laws related to custody & guardianship in Sri Lanka are evolving – from rigid, male-dominated rules to a more modern, child-centered approach. The legal system now places the child’s emotional and physical well-being above all else.
Compared to international standards, Sri Lanka still has progress to make, especially in recognizing children’s rights and ensuring equal parental responsibility. However, recent judgments show a clear shift in the right direction.
FAQs: Child Custody & Guardianship in Sri Lanka
1. Does the mother automatically get custody?
Not automatically. Courts decide based on the child’s best interest, but young children often remain with mothers, especially if they’re the primary caregiver.
2. Can the child choose who to live with?
Yes, if the child is mature enough. Courts may consider their wishes, especially from age 10 and up.
3. Can both parents have custody?
Joint custody is rare in Sri Lanka, but courts may allow both parents to remain involved in major decisions.
4. Can custody be taken from a parent?
Yes, if the parent is unfit or if remaining with them harms the child’s life, health, or morals.
5. How do personal laws affect custody?
They can influence decisions, especially in Tamil and Muslim communities. But courts still prioritize the best interests of the child overall.