As Sri Lanka focuses on reforming the controversial Muslim Marriage and Divorce Act (MMDA) of 1951, a damning 61 page report has disclosed the many ugly sides of the MMDA in Sri Lanka, which has discriminated and rendered Muslim women less than equal as citizens in the country. This report also comes amidst hype around EU’s alleged demand to amend the act as a condition for GSP+. While there is no such condition attached to the GSP+ Sri Lanka has to show progress on international conventions, some of which have called for review of discriminatory family laws and raising the age of marriage for Muslims.

The report titled ‘Unequal Citizens: Muslim Women’s Struggle for Justice and Equality in Sri Lanka’ by Muslim women working in the area of human rights, has exposed many instances where children as young as 14 were married off and had to suffer sexual and physical abuse in the hands of their husbands, while in many instances even getting a divorce can be challenging for women.

The report detailing several case studies reveals how young girls were either forced into marriage, or had to undergo abuse, both physically and sexually post marriage for various reason including dowry matters. In one incident, a 15 year old girl was forced into marriage by a mosque committee citing ‘bad reputation’ even though she was not at fault and a man who had been harassing her demanding she marries him, tried to molest her after entering her home while she was changing her clothes.

Detailing the incident the report said, “A 15-year-old girl from the Eastern province was continually harassed by a man in her village who was asking her to marry him. She kept refusing him as she was still attending school and was not interested in marriage. One day when she was alone at home, the man had entered her house and when she was changing her clothes he had tried to molest her. She had screamed and neighbors had come from outside to help her, and had found the man in her bedroom. Shortly afterwards they had taken both the girl and the man to the mosque committee, and the mosque committee had insisted that the girl marry this man on the basis that she now had a “bad reputation” and therefore that no one else would want to marry her. The girl had refused but was forced into marriage, and because it was ordered by the mosque committee her family had not objected. After marriage the man was with the girl for only one month, after which he abandoned her. The girl who had dropped out of school has been living alone and fending for herself with little family support for the past 2.5 years.”

In another incident, a husband beat his 16 year old bride with a helmet, causing her serious injuries, because she refused to ask her mother and brother to sell the remaining property and give him a bigger dowry.

Detailing the case, the report said, “A 16-year-old girl from the Eastern province was given in marriage to a man from the same district after he had approached her mother and brother with a marriage proposal. The man asked for a big kaikuli (dowry) so the family sold half of their plot of land and bought him a motorbike, and gave the remainder in cash as kaikuli. After the nikah she had gone to live with him. After the third day of marriage, the man had pressured the girl into asking her family to sell the remainder of their land and property and give the money to him. To this she had objected saying that her family would have no place else to live if they did so. The man then began to be severely physically abusive towards her, and on the 10th day after marriage she was attacked with a helmet causing her serious injuries so that she had to be taken to the hospital. In the hospital she said that her injuries were because she had fallen, as she was too embarrassed and scared to mention the domestic violence to anyone. The husband had then dropped her at her mother’s house and abandoned her thereafter. Now at 18 years of age, she has obtained a fasah divorce but was unable to get back any of the kaikuli except the motorbike.”

The report highlighted that dowry is not only an un-Islamic practice, but also grievously harms Muslim women and their families and must be removed from the MMDA. However, given the current context, in order to eliminate the practice, stringent and mandatory record of all kaikuli dealings (moveable and immovable assets) must be stipulated during the marriage registration. “There also has to be clear procedures to recover kaikuli during any point of time in the marriage, separation period or divorce,” the report urged.

The report also reveals the harrowing experience Muslim women have to undergo in the hands of the Quazi court system administers the MMDA. In another incident, it was revealed that within the first two months of marriage a woman of a minority Shi’a sect who was married to a man also from the same community, experienced emotional abuse and controlling behavior from her husband, which culminated in physical abuse as well. Unable to continue being in such a marriage, she had to separate from her husband. Despite attempts at reconciliation, the woman decided that she would not return to the marriage given her experiences of being abused but was unable to get a fasah divorce under the MMDA as the law of the sect requires the consent of the husband for divorce, regardless of circumstance. She received strong support from her family, community and religious leaders in this regard and they put immense pressure on the husband to permit the divorce. However despite this the husband did not grant her a divorce for three years simply because he was able to withhold it as a right granted to him by (unwritten) provisions in the law pertaining to the sect.

In another incident, a girl in the Eastern province was married at the age of 14 after her schooling was stopped. After a few months of marriage she applied for fasah divorce due to severe sexual torture by her husband. The Quazi instead of dealing with the case in a sensitive and appropriate manner chose to interrogate her for over two hours asking her specific details about the sexual violence, which in turn caused the girl further psychological trauma so that she attempted suicide and faced severe depression.

The report demanded that the Sri Lanka State needs to ensure that the minimum age of marriage is 18 years for all citizens regardless of religion or ethnicity. Also since, Islamic legal jurisprudence does not stipulate a particular age and some scholars even considers setting any age limit not permissible, it is therefore imperative that government takes responsibility for setting the minimum age of marriage as it does for all other citizens.

“Regardless of the number of cases, whether isolated or many, child marriage is unacceptable and for the Muslim community this needs to be addressed by removing the legal cover that MMDA accords,” the report said.

The report also criticized those who are not in favor of setting a minimum age of marriage for Muslims, who often give the example of some states in the United States of America that has a low minimum age of marriage as an attempt to call out the ‘hypocrisy of the West’ on child rights. “However, the fact that Muslim majority countries such as Algeria, Jordan, Morocco, Tunisia, Turkey and Lebanon have set a minimum age of marriage in keeping with international human rights standards are never considered in the same vein,” the report revealed.

The report also said that Muslim politicians, religious leaders, as well as some individuals and organizations in support of MMDA reforms believe that the minimum age of marriage for Muslims should be decided from within the Muslim community and mandated by the MMDA. However, the minimum age of marriage is a contested topic even within the Muslim community and is highly subjective, dependent upon the theological viewpoint of the various parties supporting or opposing the establishment of a minimum age.

“Therefore, in the current context, it is unlikely that all the stakeholders in the Muslim community in Sri Lanka would agree and reach consensus on raising the minimum age of marriage to 18 years and deciding that the State should set the minimum age of marriage for all citizens. It is important for the Sri Lankan state to recognize and protect the rights of all citizens to enjoy his/her culture, traditions and freedom of religion. However in provisions such as establishing a minimum age of marriage – it is the responsibility of the State to ensure that child rights are not compromised in the name of culture and religion,” the report said.

Sri Lanka is a party to the Convention on Rights of the Child (CRC)24 and Convention for Elimination of All forms of Discrimination Against Women (CEDAW) among other international human rights instruments, and is thus required to adhere to global benchmarks on child rights and women’s rights. The CRC recognizes anyone under the age of 18 as children and explicitly states in Article 2 that no child can be treated unfairly on any basis including religion, ethnicity or gender. Article 19 of the CRC also states that children need to be protected from all forms of violence, including “from being hurt and mistreated, physically or mentally”. As per CEDAW, early and forced marriage is considered a “harmful practice” that the state needs to take serious action to reduce and eliminate.

“Clearly the status quo with respect to MMDA is untenable. There are serious shortcomings in the law and in its implementation. This has had an adverse impact on the rights and wellbeing of women and girls in the community. Constitutional provisions like Article 16(1) have prevented those affected from being able to seek redress against discriminatory aspects of the law and has rendered Muslim women less than equal as citizens. The struggle of Muslim women for reform against heavy odds has been led by few committed activists, admirable and long suffering but also riven with limitations,” the report said.

The report highlighted that in Sri Lanka, the government has the primary duty to address issues faced by Muslims under the MMDA and the Quazi court system, which was established, administered and is funded by the state.

“The Sri Lankan government has foremost responsibility to ensure that State laws protect the rights of citizens and is not in turn causing discrimination and injustice on the basis of gender and religion. In this regard the Sri Lankan government cannot grant any religious or ethnic group the onus to decide on whether or not the individual and fundamental rights of citizens can be forgone in the name of the cultural and religious rights of the group to which they are affiliated. Especially so in a democratic state that has secular laws, which by default, should apply for each and every citizen. On certain issues such as minimum age of marriage, the Sri Lankan government is mandated to establish an age that is suitable for all citizens and protect child rights and promote education, health and wellbeing. Putting perceived cultural and religious rights before child rights and legally allowing for Muslim minors to be given in marriage at an earlier age and legally exempting their protection under the Constitution and Penal Code is a serious violation of this State responsibility,” the report underscored.

The report also highlighted that Muslim women in Sri Lanka are facing grave issues under the MMDA not because of their religious affiliation, but as a result of patriarchy and power that has used a religious and legal basis to disqualify women from equal protection under the law and reinforce subordination of women. “Therefore, the argument that amendments to the MMDA will negate Muslim identity is one that reinforces this patriarchal notion and threatens the status quo, which privileges Muslim men above women,” the report added.

The report has been developed by Hyshyama Hamin and Hasanah Cegu Isadeen. Hamin is gender consultant and independent researcher, while Isadeen is a lawyer and activist. (By Munza Mushtaq )