The need to amend the Muslim Marriage and Divorce Act 1951 (MMDA) was met with resistance, when several parties questioned the necessity for the amendments and the reasons behind it.
Earlier this month, Minister of Law and Order and Southern Development, Sagala Ratnayake, said, the reforms to the MMDA had to be enacted as part of the conditions to regain GSP+ concessions from the European Union. Accordingly, the Ministry of Justice appointed a committee of 17 eminent Muslim representatives under the leadership of former Supreme Court Judge Saleem Marsoof to make recommendations to reform the Muslim Marriage and Divorce Act.
In the light of current developments, an independent researcher and gender consultant Hyshyama Hamin and lawyer Hasanah Cegu Isadeen released a report titled ‘Unequal Citizens: Muslim Women’s Struggle for Justice and Equality in Sri Lanka’ where they quoted a 2015 survey conducted by the Forum for Women and Development (FOKUS Women) in collaboration with the Muslim Women’s Development Trust (MWDT) in the Puttalam district.
It says, of the 1,000 Muslim female heads of household that took part in the study, 42% were married below the age of 18 due to ‘family tradition and customs’, and ‘economic reasons including protection and security’. In Kattankudy, in 2015, 22% of marriages comprised brides below 18 years, a considerable increase from 2014, where it was 14%.
Hamin and Isadeen said, early marriage makes Muslim girls vulnerable to financial difficulties in the event the husband is unable or unwilling to provide maintenance, in the case of his death or decision to marry another woman.
GSP+ or national movement
The Muslim Personal Law Reforms Action Group (MPLRAG) stated, in accordance with the international conventions, it has ratified that Sri Lanka is bound to carry out reforms in the “archaic Muslim Marriage and Divorce Act.” The International Covenant on Economic, Social and Cultural Rights (ICESCR) Committee informed Sri Lanka that its Personal Laws are discriminating against women and girls.
Sri Lanka is party to the Convention of All forms of Discrimination Against Women (CEDAW), ICESCR and International Covenant on Civil and Political Rights (ICCPR), all of which stress that the provisions that discriminate against women should be scrutinized.
Muslim religious organizations have expressed displeasure over the government’s decision to amend the MMDA, giving way to international pressure. Issuing a statement, All Ceylon Jamiyyathul Ulama (ACJU) said, they “strongly oppose bringing changes in the Muslim Personal Law either due to international pressures or stimulation of any evil forces acting against the Muslims,” and that it is the duty of every one of us to protect these laws which have been implemented since a long period, to date.
However, contrary to the statement issued by the ACJU, its President Mufti M.I.M. Rizwe is said to have been working favourably towards reforming the existing MMDA.
He is reported to have said, the ACJU was supportive and open for discussions with the government on this matter. But, any changes to the law should be done in accordance with Shariah Law and Islamic Jurisprudence.
When the Sunday Observer spoke to the Minister of Muslim Religious Affairs, Abdul Haleem, he said, both, Supreme Court Judge Saleem Marsoof and Rizwe Mufti were pivotal in shaping the new Act and that they would be present in Parliament after the budget debates were over, to brief all Members of Parliament, on the need and nature of the proposed reforms.
On the other hand, the MPLRAG stated, they believe the recent hype created, linking the European Union’s (GSP+) to changes in MMDA was a distraction. “It has given room for those resisting change to generalize the changes as an international imposition.”
Hamin added, activists have been working on these recommendations for decades and it was unfair by the activists if the religious organizations speak against the amendments simply because of the reasons the government has presented.
Referring to the minimal age for marriage which is 18, in the Constitution, Hamin said, it was the sole responsibility of the state to safeguard the rights of under-aged children and ensure that it is not violated, in the case of child marriages.
The National Movement
Personal Laws exist to provide the minority communities the extra protection they need, but instead, they violate the fundamental rights of people in those communities.
“It was also the first time that women were allowed to take part in committee meetings and decisions over this Act,” Roshana Aboosally Mohamed, one of the earliest members of the founding committees tasked with preparing amendments to revise the MMDA, said. She was part of the Shahabdeen Committee chaired by Dr. A.M.M. Shahabdeen way back in 1992, which met over a period of 18 months to deliberate and finalize the amendments.
“The MMDA needed reform on so many levels, we knew it then and still acknowledge it. It was this thinking that enabled all of us in the committee to reach rational decisions. For the first time, there was unanimity in the suggestions and not a single dissension,” she said.
Aboosally said, the committee held a series of consultations with several Muslim organizations and eminent individuals. “One moulavi who participated in previous committees as well, said, it was the first time that he too agreed to the amendments, including the incorporating of women as Quazi’s.” Accordingly, it was suggested then, that women be given an equal opportunity, but the suggestion was kept open until a fatwa or ruling was given as agreed by most of the members of the committee.
Aboosally, representing the Muslim Research and Action Forum referring to the current debate, said, the matter has been largely misunderstood. “We need to reform the MMDA on the behest and for the benefit of the community, not in the interest of the international community,” she said, adding that this distinction must be clear.
As stated in the report, Unequal Citizens, the present-day MMDA was enacted in 1951 and inculcates provisions in other Ordinances and codes, but includes additional provisions based on Islamic legal practices and local customs, such as, kaikuli (dowry). MMDA and Kandyan Marriage and Divorce Act specify terms on marriage and divorce for the two communities, even though the Kandyan Sinhalese have the option to marry under the Kandyan Law or the general law.
This option however, does not extend to Muslims as the MMDA says, “inhabitants of Sri Lanka who are Muslims” and who marry another Muslim (including converts to Islam) should be married under the MMDA. Muslims however, are allowed to marry partners of a different ethnicity or religion under the general law.
If the MMDA is not amended, Muslims should be allowed, at least, to marry under the general law, Shreen Abdul Saroor, founder of Women’s Action Network and Mannar Women’s Development Federation said.
Shariah Law
The origin of the MMDA stems from a code of law on marriage and divorce imported from Batavia (present day Indonesia) in 1770 during Dutch rule. Between 1806 and 1951, this code of law went through a process of codification, review and modification.
Aboosally explained that many concurred on the revisions, primarily, due to the fact that the Act was not based on Shariah Law. “The Act is not based purely on Shariah Law,” she said. “Matters such as Seedanam (dowry) and Kaikuli (maintenance) are totally alien to Shariah Law, but omnipresent in the existing law which shows the disconnection between the two.”
“Many say that you shouldn’t meddle with Shariah or Quranic Law, when this Act has no bearing on either.
The clause about men being able to marry four times has much more ramification in the Quran as opposed to the loosely worded text in the Act concerning the same.” She referred to the many conditions laid down by the Quran including the marriage of orphans and widows, that there is no abandonment of the first wife –which is not recorded in the Act.
“I think what we all need to do is, footnote emotion, and look at this rationally,” she said. “When I started my career, I met Neelan Tiruchelvam who spoke to me on the plight of Muslim women referring to it as ‘dire’ and citing that they were in personal danger. He asked us to take interest in it, and this was in the 1970s. There has been a lot of support for amendment of the Act since then.”
“The notion that Islamic Jurisprudence is unchangeable is a myth,” Hamin explained, and said, the age limit for marriage is not set out in Islamic Jurisprudence, hence, it is open to change according to the country’s general law.
Article 16
Article 16 (1) of the Fundamental Rights of the 1978 Constitution states, all written and unwritten law that existed prior to the Constitution is “valid and operative,” even though they are inconsistent with the other fundamental rights granted to all citizens.
This clause refers to over 600 unwritten laws practised prior to 1978, including the Code of Criminal Procedure 1976, MMDA 1954, Kandyan Marriage Ordinance 1954, Thesavalamai Pre-Emption 1948, Penal Code Ordinance 1883 and Vagrants’ Ordinance 1842.
Activists also made pleas to the subcommittee in September, demanding that Article 16 be repealed. Saroor said, women’s groups from all over Sri Lanka went before PRC and subcommittees on constitutional reforms and reiterated this.
“When the Constitution is being reformed, it should not leave anyone behind when securing their rights, and the matter should be looked at beyond the patriarchal narratives under which Personal Laws have been implemented so far,” Saroor said.
“Even though many privately acknowledge that this law begs change and the entire Quazi court system needs to be reformed, it shouldn’t be simply rejected because the demand came from women, especially Muslim women,” she said.
Explaining the need to amend the Quazi court system, Hamin said, Quasi courts were established by a statute and are state funded, therefore, hiring female Quazis should not be restricted.
Both Saroor and Hamin insisted on the necessity of establishing female Quazis so that the issues brought before the Quazi courts are religiously looked into and for the proper implementation of the proposed amendments to the Act.
