Muslim marriage and divorce act: full overhaul needed | Daily News


Muslim marriage and divorce act: full overhaul needed

The Muslim Marriage and Divorce Act (MMDA) has been making big news in the past few months in Sri Lanka. The activists and lobby groups maintain that some of its clauses literally violate basic human rights.

The Muslim Women's Action Network recently held a press conference to voice their demands for reforming the MMDA and their concerns over the attempts to thwart the process and to urge the government to expedite the revisions.

Former Minister Ferial Ashraff, one of the activists of the group, said the Muslim women were having problems regarding the MMDA and therefore, amendments should be made to the act without delay. They pointed out that the MMDA was drafted by men and passed by a legislature of men and came into effect 68 years ago. The group put forward 8 demands.

Not new

This call for reforms is not new. Over the past 30 years, three government-appointed committees have been set up to amend the MMDA. However, none of these committees were able to reach a consensus on what clauses should be amended, thus stalling progress on reforms.

“The issues with all these committees, since 1956, has been that nobody could reach an agreement on the correct interpretation of the Quran,” Justice Saleem Marsoof, a Supreme Court judge told the media. He added that both liberal and conservative members of the committee had cited parts of the Quran to justify their views on whether reforms were necessary, or not, and what the reforms - if there were any - should be.

Committee Report

In 2009, the then Justice Minister Milinda Moragoda appointed a Cabinet committee headed by Justice Saleem Marsoof to recommend amendments to the MMDA. In January 2018, the report was handed over to the present Justice Minister.

According to news media, the Committee has recommended that the MMDA should be amended to upgrade the Quazi Court system with the status of the Quazi enhanced to that of a Magistrate and the Board of Quazis to be renamed “the Quazi Appellate Court” with a full time Chairperson.

Other notable suggestions are said to include the fixing a minimum age of marriage as 18, provision for pre-marital counselling, enabling both the bride and bridegroom to sign the Register of Marriage and spell out terms of the marriage contract.

The full report has not yet been released.

Muslim parliamentarian Mohamed Faiszer Musthapha, recently confirmed that amendments to the MMDA were unanimously agreed upon recently after discussions with all the Muslim parliamentarians. He listed the amendments as, “the age of marriage for both, the bride and the groom should be 18; the bride should sign the Register of Marriage, as a sign of her consent; upgrade the qualification of a Kadi (Quazi) to Attorney-at-Law; and permit female Kadis (women who will adjudicate family law of Muslims).”

While the more progressive factions proposed liberal reforms, nine members of the committee including members from the All Ceylon Jamiyyathul Ulama (ACJU) the supreme authority over Islamic religious affairs in the country differed, reasoning that, “Allah’s law cannot be changed.”

Meanwhile, the Muslim women’s organisations and activists who have been working with women at ground level called for more clarity on the reforms. They wanted to know what exactly was agreed upon, whether marriage at age 18 for females was with or without exceptions and what is going to happen about other discriminatory areas of the MMDA like divorce laws.

For example, it is not clear whether Muslim practice of “triple talaq” is allowed or not.

Discriminatory areas

What are these “discriminatory areas” of the MMDA? This Act refers to the personal laws concerning the Muslim community in Sri Lanka. The “discrimination” arises due to its conflict with Article 16 (1) of the Sri Lankan Constitution.

Article 16 (1) states that “All existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of this Chapter.” Thereby diluting the supremacy of the Constitution by allowing the Muslim Personal Law to supersede it.

In short, the MMDA overrides the Constitution where Muslims are concerned. For example, a Muslim cannot marry out of the MMDA. General Marriage and Registration Ordinance (GMRO) states: "Everyone other than where both parties are Muslims, can register their marriage under Marriage (general) Registration Ordinance.”

This is why the Muslim activists are fighting for MMDA reforms.

Muslim women around the country have joined in many forums to voice that they are discriminated against by present Quazi court system, which is significantly different from the civil court system. It does not allow the affected persons to have legal representation.

Husbands and wives are not treated equally. Women are unable to express their side of the story without fear of being verbally abused and threatened in the court itself.

Partial solution

Let us see what reforms were requested by Ferial Ashraff and her team? (1) Minimum age of marriage for all Muslims to be 18 years without any exceptions. (2) Women be eligible to be appointed as Quazis, as Members of the Board of Quazis, Marriage Registrars, and Assessors (jurors). (3) The MMDA to apply uniformly to all Muslims without causing disadvantage to persons based on sect or madhab (4) Signature of bride and groom to be mandatory in all marriage documentation to signify consent. (5) Registration be required for legal validity of marriage. (6) Adult Muslim women to be entitled to equal autonomy and need not require the ‘permission’ by law of any male relative or Quazi to enter into a marriage. (7) Talaaq (divorce) and Faskh (annulment) rights between women and men must be equal. Procedures for divorce to be same for husband and wife, including appeal process (8) Revision of the Quazi court system to ensure a competent system with improved access to justice for women and men.

Will the suggested reforms meet with the aspirations of the Muslim women’s organisations and activists? This is million dollar question.

For example, as Justice Marsoof says the committee was able to agree on changing the minimum age for marriage for a Muslim woman to 18. But exceptions were made for teens between the ages of 16 and 18, if the approval of the Quazi court were obtained.

These activists believe changing only few laws relating to marriage without addressing the other injustices to women contained within the MMDA is not the real solution to the issues they continuously face. As one activist said, “What is needed is political will for the Government to take on board the concerns of Muslim women, and push forward MMDA reforms which comply with Article 12 of the Constitution: that everyone should be treated equally under one law.”

Indian experience

Meanwhile, last month our neighbour – India, took some action on existing Muslim Marriage laws. The Indian parliament has approved a bill to end the Muslim practice of instant “triple talaq” (or Muslim instant divorce) two years after the Supreme Court said it violated the constitutional rights of Muslim women.

The upper house of Parliament, Rajya Sabha, passed the Muslim Women (Protection of Rights on Marriage) Bill with a 99-84 approval, making the practice punishable with up to three years in jail. Indian Prime Minister Narendra Modi said the bill “corrects a historical wrong done to Muslim women.” It will become law after India's President approves it, which is a formality.

“An archaic and medieval practice has finally been confined to the dustbin of history”, Modi commented. “This is a victory of gender justice and will further equality in society. India rejoices today!”

Perhaps we can take a cue from Indian experience. 

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