News
In landmark ruling, CA strikes down husband’s consent rule for foreign spouse visa extensions
In the case of a foreign spouse—a victim of domestic abuse—being denied a visa extension by the Department of Immigration and Emigration because she could not produce a consent letter from her estranged husband, the Court of Appeal this week ruled that imposing such a requirement on a victim of violence constitutes a legal impossibility and contradicts established migration guidelines
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Justice K. Priyantha Fernando, with Justice Rohantha Abeysuriya, PC, agreeing, ordered the Controller General of Immigration to issue the visa and waived a fine previously imposed on petitioner, Indian national Maheshwari Kalyana Sundaram, for overstaying.
The ruling emphasised the State’s obligation to protect vulnerable women and ensured that administrative procedures do not inadvertently support the objectives of an abuser.
Domestic abuse
The petitioner, a citizen of India, married the second respondent, Satheesh Nadarajah, a Sri Lankan citizen, in August 2002. She has been living in Sri Lanka since September that year on a spousal visa, which was applied for on her behalf by her husband, Mr Nadarajah. They have a child together.
Ms Sundaram’s petition states that, since arriving in Sri Lanka, she has been a victim of severe domestic abuse at the hands of her husband and his mother. As she was not working, she was financially dependent on her husband to sustain herself and their child.
In or around 2006, Mr Nadarajah entered into a second marriage, which was registered in 2013. The petitioner, Ms Sundaram, later lodged a complaint with the Fraud Bureau, which resulted in the filing of a case in the Magistrate’s Court. She continued to live with Mr Nadarajah’s mother in the ground floor of the building while he and his second wife lived on the top floor.
The petition says that Mr Nadarajah continued to physically abuse Ms Sundaram, which led to the filing of the domestic violence case against Mr Nadarajah and his mother. She obtained an interim protection order in June 2022. She was also compelled to file a maintenance action in the Magistrate Court, as she was financially dependent on Mr Nadarajah.
Visa problems
Following the institution of these cases, Mr Nadarajah refused to give the consent letter necessary to obtain the spousal visa for the year 2022-2023. Ms Sundaram consulted the Controller General of Immigration and Emigration, who is the 1st respondent, seeking a spousal visa despite the lack of a consent letter. However, the Controller General refused it on the basis that the consent letter was a vital document to obtain a spousal visa. He also advised her to obtain a dependant’s visa on the basis that her son was residing in the country.
Ms Sundaram did so, and upon its expiry in 2023, she was of the view that her son would not consent to extend her dependency visa, as he also became violent towards her, compelling her to file a police complaint against him.
The petitioner, Ms Sundaram, contended that having been granted a spousal visa from 2002 to 2022 and residing in the country for over 20 years, she had a legitimate expectation that the Controller General of Immigration and Emigration would use his discretion to enable her to reside in Sri Lanka.
While her application was pending before the Court of Appeal, Ms Sundaram’s mother, who resided in India, fell severely ill in July 2024. Ms Sundaram had to urgently leave the country, but the Department of Immigration and Emigration informed her that she had to pay a fine of Rs 155,000 or she would not be allowed to return to the country once she exited.
Although she pleaded with the Department that she had not committed any illegal act to be fined and that she was residing in Sri Lanka on a court order issued in November 2023, the Controller General refused to withdraw the fine.
The court decides
The Court of Appeal on January 19, 2026, ruled that Ms Sundaram, the petitioner, held a legitimate expectation of visa renewal based on her 20-year residency and valid marriage. It held that the State cannot deny this renewal without a valid reason for why the applicant was suddenly “unsuitable” and that fleeing domestic violence did not make a person unsuitable.
The court also addressed the administrative fines imposed for “overstaying” while the victim’s visa status was in dispute. It ruled that a person cannot be penalised for remaining in the country under a valid court order or while seeking legal redress. Consequently, the Court ordered the waiver of such fines and issued a Writ of Mandamus directing the authorities to issue the spousal visa as long as the marriage remained valid.
The Court identified that the existence of a valid marriage is the “only requirement” for a spousal visa under the relevant administrative guidelines. Other requirements, such as a consent letter from the spouse, are considered mere documentation requirements rather than mandatory statutory conditions.
A marriage remains valid for visa purposes even if the spouses are living apart due to domestic violence or if one spouse is facing legal proceedings for bigamy. Thus, as long as a court has not formally ended or invalidated the union, the foreign spouse remains entitled to the visa.
The Court highlighted that if administrative authorities were to deny a visa because a victim fled an abusive home (or could not obtain a consent letter from the abuser), they would be indirectly supporting the abuser’s objective of having the victim removed from the country.
The Court emphasised that the State is obligated under various laws—such as the Prevention of Domestic Violence Act and the Women Empowerment Act—to protect victims rather than penalise them for seeking safety.
Financial support
Meanwhile, under the Sri Lanka Migration Control Manual, one of the requirements for a spousal visa is evidence that the Sri Lankan spouse has sufficient financial means to maintain their dependants. Typically, this is fulfilled by a “letter from the husband consenting to maintain her”. However, the court ruled that an interim maintenance order from a magistrate court—which Ms Sundaram had obtained—served as even stronger proof because it showed that the husband was legally compelled to provide support, rather than merely volunteer it via a letter.
The Court of Appeal issued an order in the nature of a writ of mandamus directing the 1st respondent (Controller General) to issue spousal visas for the petitioner so long as she remained as the spouse of the 2nd respondent.
Attorney-at-Law Swasthika Arulingam appeared for the petitioner, instructed by Ineka Hendawitharana. State Counsel P. Jayasuriya appeared for the Controller General, the Minister of Public Security and the Attorney General.
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