Sri Lanka has a separate police department to address matters concerning women and children — the Women and Children Bureau — and this is where cases can be initially reported.
The police have an obligation to protect victims of domestic violence. They may attempt mediation, but unsolved or serious domestic violence cases are referred to the court.While silent on the specific issue of domestic violence/violence against women, the Sri Lanka Criminal Defence Practice Manual notes various criminal act defenses, including the following:[21]
- Self-defense and defense of a third party: Nothing is an offense merely by reason of it being done with the knowledge that it is likely to cause harm if it can be done without any criminal intention to cause harm and in good faith for the purpose of preventing or avoiding other harm to a person or property (Section 74 of the Penal Code). The right of private defense in no case extends to inflicting more harm than it is necessary to inflict for the purpose of defense (Section 92(4) of the Penal Code).
- Involuntary intoxication: Nothing is an offense that is done by a person who, at the time of doing it, by reason of intoxication is incapable of knowing the nature of the act or that they are doing what is either wrong or contrary to the law, provided that the thing that intoxicated them was administered without their knowledge or against their will (Section 78 of the Penal Code).
- An accused person may seek to argue a defense of consent (Section 80 of the Penal Code).
The PDVA does not create a criminal offense of domestic violence but, rather, it provides for a scheme by which victims of prescribed types of domestic violence can get protection orders against the forms of domestic violence described in the act.
Schedule 1 of the PDVA sets out the offenses that can constitute domestic abuse, including all of the offenses contained in Chapter XVI of the Penal Code (offenses affecting the human body), extortion and criminal intimidation or attempting to commit any of these offenses.[23]According to Article 18 of the PDVA, an order is enforced as follows:
A respondent against whom an Interim Order or a Protection Order, as the case may be, has been issued and has failed to comply with such Order, such respondent shall be guilty of an offence and shall be liable on conviction after summary trial before a Magistrate to a fine not exceeding 10,000 Rupees or to imprisonment of either description for a term not exceeding one year or to both a fine and imprisonment.
In cases of domestic violence, the police may prosecute the abuser under the relevant provisions of the Penal Code to obtain a conviction with a fine or imprisonment. Alternatively, the abused person could bring a civil action to obtain compensation. The only remedy a person is provided by the PDVA is a protection order against future violence and there is no grant of relief or compensation for abuse already suffered.[24]
Even after an application is made under the PDVA, many applicants withdraw their application or agree to settle the matter before the protection order is issued. Some lawyers think that the settlement rate is as high as 90%. The reasons identified for this high dropout rate include economic vulnerability and financial dependency, fear of retaliation, social isolation, community pressure, concern about losing custody of children, a deep emotional bond with their partner and wanting to preserve and improve their relationship.[25]
Many women survivors of domestic violence prefer to file a case under the Maintenance Act. The Maintenance Act allows a spouse who is unable to maintain themselves to apply for maintenance from the other spouse, provided that they have sufficient means to do so and they have neglected or unreasonably refused to do so. The Maintenance Act also provides that where a parent with sufficient means neglects or refuses to maintain their child, then the child is entitled to make a claim for maintenance. Once an application is received and the evidence is considered, including the evidence given by the respondent, the court can order the respondent to make a monthly allowance as maintenance at a rate fixed by the magistrate as they see fit. The amount is determined with regard to the income of the person and the means and circumstances of the spouse. Before an order is made, the respondent is required to show cause, if any, why an order should not be made and furnish to the court details of their income.[26]