MMDA reforms to stop child marriage still stifled by ACJU: “I would have stayed in school and studied” - Fathima | Sunday Observer

MMDA reforms to stop child marriage still stifled by ACJU: “I would have stayed in school and studied” - Fathima

MP Bimal Ratnayake with Muslim women activists
MP Bimal Ratnayake with Muslim women activists

The voice on the other end of the phone fell briefly silent. Few seconds passed till Fathima* spoke again. “If I had the chance, I would have stayed in school and studied. It would have changed my life,” she said.

Fathima who is from the North Western Province only got the opportunity to study till the seventh grade. Owing to extreme poverty, and in an effort to stop her father from selling her to the sex trade, Fathima’s mother thought it best to marry her off.

The ceremony was a humble one, just the relatives, mostly from Fathima’s side. The 19-year-old groom’s family boycotted the event as her family couldn’t pay the Rs. 200,000 they demanded as dowry. Fathima was 13.

Though her marriage violates child rights, it is deemed legal in Sri Lanka under the Muslim Marriage and Divorce Act (MMDA).

According to the latest statistics by the Registrar General’s Department, for 2012, 1,044 girls have been married in Sri Lanka who are below the age of 18. The number comprises 1,024 girls of the Sri Lankan Moor community and 20 from the Malay community.

The grim picture however is that these numbers only denote the registered marriages in the country, while the MMDA enables marriages to take place without due registration.

All that it requires is the presence of a Qazi (a Muslim judge) and a child is married, most often, to a much older man and in some cases one who is already married.

Dialogue surrounding the MMDA was brought to the forefront by human rights activists, and mostly female Muslim activists years ago who demanded for crucial reforms to the Act such as fixing the minimum age of a person to be married to 18 years. Under the MMDA, female children over the age of 12 can be given in marriage, and children below 12 can be married off with special permission from a Qazi court.

If one marries a child below 12 years without the Qazi, that marriage is not registered, yet, validity of a marriage under the MMDA does not depend on registration.

A child marriage law

The dialogue about the worrying MMDA was ignited even more following the Easter Sunday attacks after Muslim women had to bear the brunt of the actions caused by men identified as Muslims.

It took a favourable turn when JVP MP Bimal Rathnayake addressed its issues during Wednesday’s (31) parliamentary session.

“MMDA is a child marriage law,” he said, adding that whatever the etiology of the Act is, no learned Muslim intellectuals and leaders, other than a handful, are speaking against it.”

He also said that there is a notion that, after attaining puberty, a girl is ready to give birth.

He explained that just because a girl has a womb it does not mean she is ready to be a mother, but must also have the mental strength to do so.

Let alone bear a child, Fathima, now 17 years old, did not even know what she had to do with her husband. Then she got pregnant.

“He beat me and the baby got aborted. He wanted it to happen. He said we were not ready to have a child,” Fathima disclosed, and thus her harrowing marriage life unfolded.

Her husband, who approached her family after seeing her at an Islamic studies class where he also taught, often beat her.

A few years ago, he started an affair with another woman whom he says is fair and demanded of Fathima a divorce saying he does not want a dark-skinned wife.

Divorce under the MMDA is much more flexible for men. They simply go to a Qazi court and get the divorce. The case is discriminatory towards women who are bound to take two relatives, commonly two men, to request for divorce at the same court. Then, if a man divorces a woman, he has to pay a Matha- compensation for her and children. Fathima’s husband is trying to get away without paying the Matha by forcing her to give the divorce instead.

The plight of Muslim women married under the MMDA gets even worse when it comes to divorce. As the Act also allows Muslim men to marry four women at one time, they would go to a Qazi court to divorce a wife and marry another.

The limit is endless. There are instances where a man had married up to 13 women. Many women and children are abandoned by men who abuse this flexibility in the law.

In some cases, as a result of the absence of the registration method, some men say that they never married a woman, and simply go ahead with the new marriage.

Though Article 12 of the Constitution on Fundamental Rights states that “all persons are equal before the law and are entitled to the equal protection of the law”, Article 16 of the same document states “all existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of [the fundamental rights chapter].” This lets MMDA reign over Article 12.

A committee, chaired by former Supreme Court judge Justice Saleem Marsoof, was appointed by the Ministry of Justice in 2009 to recommend reforms to the clearly problematic Act. Last year, the committee submitted a report with two sets of recommendations.

Two recommendations were proposed on certain issues, while on most there were unanimous decisions.

Safana Gul Begum, attorney-at-law, who was a member of the committee told the Sunday Observer the MMDA was first enacted by Parliament through Act No 13 of 1951.

But the Muslim law was first brought to Sri Lanka from Indonesia in the 17th century. It was modified as Mohamadean court in 1806, then as the Muslim Marriage and Divorce Registration Ordinance in 1929.

“The present MMDA went through a series of amendments till 1975. This shows that MMDA is not a divine law but a man-made law that can be amended if needed,” Begum said.

Human rights campaigner Shreen Abdul Saroor is one key figure who is pushing for the MMDA reforms.

She said three of the main reforms they are looking at are for mandatory registration of marriage, the fixing of the minimum age of marriage to 18 years, and also appointment of female Qazis and making it mandatory for Qazis to be qualified lawyers.

Currently the qualification of a Qazi is to be a Muslim man with good character. However, Qazi appointments in some areas are politically influenced.

Interference

Also, the reforms to the MMDA are stalled due to heavy influence by the All Ceylon Jamiyyathul Ulama (ACJU), the self-proclaimed champions of Islam.

Considering the proposed recommendations of the Justice Marsoof Committee report, Muslim MPs and Ministers were to submit a proposal to the Cabinet recommending reforms to the MMDA.

Soon after, in a letter addressed to MP Mujibur Rahuman, and other Muslim MPs and Ministers, on July 18, the ACJU states that there are “religious concerns” on the proposals submitted for cabinet approval, and requested an urgent meeting in this regard and to postpone the submitting of the report to the Cabinet. The ACJU goes on to say that failure to do so would result in them being considered as “responsible for a historic treachery and betrayal of the Muslim community”.

“ACJU was consulted by the Justice Marsoof Committee before submitting the report. But now when it is at the verge of being passed by the Cabinet they are interfering and blocking it,” Begum said.

Rights activist Saroor says that if one carefully looks at the argument surrounding the MMDA or the niqab (that was banned following the Easter Sunday attacks) one could trace them to political gimmicks, where Muslim politicians are attempting to secure their votes.

As the MMDA façade keeps unraveling, young girls such as Fathima are left to pay off heavy debts taken by their husbands, and take life changing decisions such as agreeing on a divorce.

Fathima said the MMDA has to be changed so that other girls like her would not fall prey to a flawed system.

“Children don’t know how to look after a house. They don’t even know what to do with a husband. Child marriage is wrong,” Fathima said.

(* name changed on the request of the source who by law is still a child)

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