By Mohamed R. M. Farook –
The Muslim Marriage and Divorce Act (No.13 of 1951) – MMDA – had been operational as from that year or more precisely from 1954 and remains, up to this day, as the source of an additional legal compliance by the Muslims to be congruent with the General Law of Marriage of Sri Lanka (then Ceylon) by virtue of the fact that Muslim marriages are legally valid in Islam by the performance of Nikah. Nikah as an Ibadat (an act of worship) is the definitive act by which the Muslims, from the commands of the Qur’an, contract and legitimize (legalize) their marriage. This Nikah is valid for all purposes in an Islamic or Muslim majority environment (say, a Muslim country) such as for issues of livelihood, parenthood, inheritance, subsequent marriage of a Muslim male (polygyny allowed in Islam), divorce and any other related matters. Where the Muslims are a minority in a country and that country has its own general statute (statutes) for marriage for its citizens (or different communities), there could arise (did arise) inconsistencies in upholding the validity of the Nikah with the general statutes of Marriage of the said country. This type of conflicts arose not only for minority Muslims but also for other religious minorities whose marriages and other matters had their own legitimate ways according to their religions and thus all such minorities were (are) allowed to follow their religious commands through relevant statutory enactments based on their religions. And Muslims have at present MMDA (No.13 of 1951). Before MMDA (1951), the Muslims were governed by The Muslim Marriage and Divorce Registration Ordinance 1929 which had already replaced the Registration of Muslim Marriages Ordinance 1896.
I have written two write-ups one in April and the other in May 2017 regarding MMDA, its relevance to the issues of Muslim marriages, and to keep as it is without the need for amendments – and sent these write-ups through emails to selected Muslim educationists, academics, professionals, theologians (Muslim Clerics), educated Muslim businessmen, Muslim leaders and the like. None has opposed the contents of these two write-ups. The important issues analysed and the advocacy developed against the MMDA amendments citing evidences or situations based on the practical issues faced by marginalized / poor Muslims especially living in tenement type housing in Colombo and other Muslim areas in Sri Lanka will be put forward here too.
The Muslims of Ceylon / Sri Lanka had been registering their marriages through the relevant Ordinances / Acts through the last hundred or so years up to this day in addition to or in conjunction with their Nikah obligations and the Muslims are complacent and have no issues whatsoever with such registrations. So why create an issue with the present day MMDA? All marriages are bound to have matrimonial problems – some trivial, some financial matters, some on breaking of promises, some on issues irrelevant to the marriage, some on incompatibility issues, some on presumed matrimonial cheating and thus being unfaithful, some on abuse, some on suppression by in-laws and so on – many are matters of misunderstanding. Unless there happens to be internal interventions from elders, relatives, connected people or in today’s situation or context through professional counselling to settle the disputed matters – the disputes will find their way to the Quasi Courts. Here too the matrimonial issues are brought in by either of the married couples in dispute for resolution or solutions based on the Qur’an and Hadith which are the bases of the CORE of MMDA.
There are various groups of people who call for amendments to MMDA – Muslims (activists, liberals, secular academics / professionals, journalists and the likes); Non-Muslims (activists, advocates of gender equality, Human rights / Child Rights advocates, journalists, Feminists, LGBT personalities and so on), and others who go with the general trend or tide and speak or write about MMDA as they perceive it without knowing the religious aspects of Islam and the sensitivities of the MMDA issue. These groups stress mainly on five issues regarding the proposed change envisaged to the prevailing MMDA (1951) viz. minimum age of marriage for Muslim girls; polygamy (polygyny) among Muslim men; Muslim women to be eligible to be Quaazi; divorce proceedings (as at present) unfavorable to Muslim women; consent of the bride by her signing the marriage register.
The Qur’an in Surah (Chapter) 04 (An-Nisa: Verse 06) has used the term ‘until they reach the age of marriage’without assigning a numerical value. Thus the Qur’an allows the different nationalities / cultures within the Muslim society to decide on the minimum age of marriage depending on what a particular nationality or culture accepts as the minimum age of marriage for their girls depending on diverse practical factors or issues. A very commendable favour. To question this and to fix a standard age as the minimum will bring in unpredictable and unimaginable problems leading to un-Islamic consequences. The physical growth, appearance and reaching maturity (puberty / bulugh) varies from society to society, culture to culture, period to period and so on.
To fix the age of marriage for Muslim girls on a calendar age [at 18 or 16 yrs.] will be damaging to the Muslim Ummah as a whole. For example, let us go into the practical aspects of livelihood and lifestyles of Muslims who are economically poor and live in tenement type houses in congested areas (in parts of Colombo, its suburbs and rural centres and villages) where privacy per se may not be as required and Mahram [non-marriageable men with whom only the women could interact openly] is not strictly adhered to where unsuspecting casual interactions between young males and young females could lead to detrimental consequences and finally leading to shame. Muslim parents in such groups live in a state of anxiety in looking after their children especially the daughters who are budding into womanhood in the ages, say, twelve (12), thirteen (13), fourteen (14) and fifteen (15). The only solution for such parents is to give their daughters in marriage either by choice or through proposals. Whether the marriage of a 14-year girl marrying an 18 or 20-year boy will lead to a long-term (life-term) happy marriage; or have on-and-off hiccups; or lead to total failure and breakdown is not within the purview of this write-up. But one thing is certain – Alhamdu Lillah – Such marriages are halal (legal) in Islam provided the marriages have taken place according to the Qur’an and Hadith.
Muslims and their way of life are governed by the Qur’an and the Hadith. This has to be accepted by all others including the United Nations Organization (UNO), the European Union (EU), the ‘worldly’ super-powers and the like. Otherwise where is their exhibitionism on human rights and freedom of speech including freedom to practice one’s religion? Therefore, please allow the Muslims to live according to the Qur’an and Hadith.
Fixing the marriageable age for Muslim women at a minimum of 16 or 18 years is inconsistent with Islamic edicts and has to be rejected. Forming friendship before marriage in the form of boy-friend / girl-friend relationship and moving together is acceptable and condoned within the permissive society whereas such behaviour is Haram (illegal) in Islam. In a permissive society fixing the minimum age of marriage at 16 or 18 years will not be an issue at all since the ‘lovers’ can move together freely, can have intimate relationship if and when they wish, have access to safe sex, and in case of ‘accident’ to the ‘morning after’ pill and in the extreme situation resort to abortion. Such behaviours are prohibited in Islam and also I presume the same in other religions. Let the MMDA remain as it is and do not raise the minimum age of marriage of Muslim girls to 16 or 18 years. By the way, the present day reality is that a large percentage of the Muslim girls are presently getting married in their late teens and the twenties. Further there are Muslim girls in their thirties (and beyond too) yet not married due to being financially poor; not in a position to comply to the requirements (un-Islamic) of the groom’s side such as owning a house, and many more.
Next comes polygyny of Muslim men. The Qur’an (An-Nisa, Verse 03) allows Muslim males to have two or three or four wives concurrently, with an addendum that if a Muslim fears that he will not be able to deal justly with the wives, then he should stick to one wife. The Qur’an does not command every Muslim male to have up to four wives but allows the Muslim men capable of having and maintaining up to four wives to do so if they so want to. That’s all. At the same breadth the Qur’an tells those Muslim men weak in the sense that they may not be able to treat all the wives in a just manner to be with one wife only. The chapter An-Nisa Verse 03 has to be read with Verse 129 of same: “You will never be able to do perfect justice between wives even if it is your ardent desire, so do not incline too much (to one of them by giving her more of your time and provision) so as to leave (the other) hanging (i.e. neither divorced nor married). And if you do justice, and do all that is right and fear Allah, then Allah is Ever Oft-Forgiving, Most Merciful”. Thus the question of banning polygyny (up to four wives) for Muslim men is against the injunctions of the Qur’an and cannot be accepted.
A Muslim male need not get the permission from his present wife / wives or any other authority to contract an additional marriage (within the limit of four wives). Thus the Section in MMDA where the Muslim male contemplating an additional marriage has to seek the permission of the Quaazi Court is inadmissible in Islam and that Section has to be removed or made inoperative – even this Section cannot fall under Al-Masalih Al-Mursalawhich means consideration of public interest or common good. Where the Qur’an has stipulated specific punishments for sinful acts, such punishments may be executed by people in legitimate authority. In instances where the Qur’an discourages, prevents or prohibits activities or obligates doing certain activities, but has not stipulated any specific punishments for the commission or omission of the said activities, then no one has the right to formulate laws to punish such commission or omission – it is left to Allah to impose any punishment He renders appropriate either in the offender’s life in this world or in the Hereafter or both. For example, if a Muslim does not do the five times daily obligatory prayers, no Muslim state can legislate it as an offence and impose a punishment. Similarly, no State has the authority to ban polygyny and stipulate statutes through which punishments such as fines, imprisonment for a Muslim male contracting additional marriage according to Islam could be made.
Those who advocate, both Muslims and others, the banning of polygyny for Muslims in the MMDA amendment scenario are surely on the wrong path. They cite examples of Muslim women suffering as a result of their husbands having other wives – these are individual issues happening at random and done by irresponsible Muslim men and such people will taste Allah’s punishments. In every society / community there are always individuals and small groups who make mischief – and that does not make the mainstream community to ban what the religion has ordained on its adherents. What the Qur’an allows must be upheld. It is like banning the use of knives or motor bikes because these items are used in committing murder. There are others who cite Muslim countries like Malaysia, Indonesia and Pakistan having banned polygyny. Muslims are not bound to follow what the so called Muslim countries do. Muslims have to follow the Qur’an and the Hadith.
Next Muslim women as Qaazis. Devout Muslim women engrossed in Islamic knowledge, Qur’anic edicts and the Islamic ways of life certainly will neither crave for nor accept the position of Qaazi even if offered. The reason is she knows it is against Islamic practice inferred from Qur’an and Hadith. Human rights activists, gender equality advocates, feminists, non-conformists and others of a similar orientation must know and understand the specificities of each religious group and honour such specifics and keep their hands off from established religious practices in order they do not create unnecessary commotions within the society in general and any religious group in particular – in this case Islam and the Muslims.
Our Muslim women are, with Allah’s Blessings, the foundations in our homes, as wives, mothers, performers of Islamic practices, complacent administrators of economic status of the household and many more. Their contribution is immense. Muslims do not wish to pseudo-elevate their women as the West does in the guise of gender equality whereas in reality it is exploitation of women for the sake of male pleasure (sometimes also female pleasure in today’s LGBT promotion).
From the Qur’an (An-Nisa 04:34): “men are the protectors and maintainers of women, because Allah has made one of them to excel the other, and because they spend to support them from their means”– not a question of male superiority but the reality of creation as for the Wisdom of Allah. Islam is patriarchal and confers leadership of Muslim community on Muslim males – this is a settled matter in Islam. So the question of Muslim women as Qaazis does not arise.
The issue of “divorce proceedings in the Quazi court unfavourable to Muslim women” – and if this is the contention of the aggrieved women (or even men) after the verdicts of their cases, then much study (research) has to be done on the system to rectify any downside effects that have prompted the ‘litigants’ their disagreements to the verdicts. This study should focus on the method used in selecting the Quaazis; the qualifications required to be a Quaazi; mandatory training required for the Quaazis before they assume their duties; monitoring method used in the functioning of the Quaazi court and the behaviour and discipline of the Quaazis themselves in each and every case they have ‘settled’; the perception of the Quaazi court system in the eyes of the litigants and other relevant questions, if any – nature of a judicial review process. Without a study one cannot come to any conclusion. The research question could be: “Does the Quaazi Court system function effectively in its proceedings in delivering its verdicts in divorce cases?”
We know the Quaazi court system as it is today. Though the system is a formal and legal judicial arm, it functions in an informal and people friendly manner – in a major way that is good. If the Open Court proceeding in the Quazi court is not conducive for women to speak of their private matters pertaining to the divorce action, then proceedings must be held in camera. There are approximately sixty-five (65) Quaazis throughout Sri Lanka and let them give their views in strengthening the Quaazi court system in Sri Lanka.
Though divorce is permitted in Islam in irreconcilable situations, divorce is loathed by Allah and all efforts must be used to make harmony in the couple contemplating divorce. This is what should be the first attempt for the Quaazi – and this is what they, Quaazis, try to do based on their experience, knowledge, intuition, and so on. In such a process it is possible to misunderstand and misinterpret the actions of the Quaazi. Allah Knows Best.
Bride to sign the Marriage Register – this could be done and there is no issue regarding this. Arrangements have to be made to get the signature of the bride in the Marriage Register. Where the Nikahand Registration takes place simultaneously in a Masjid – how could it be done? The two parties have to decide on this – it may not be easy for some cases such as the bride’s family live at a far location (say, Kandy) and the groom is from say Colombo and the Nikahand Registration takes place in a Masjid in Colombo. Already at present some of the Muslim marriages take place with many additional activities with parties (lunch / dinner) depending on the financial status / strength of the parties; socio-cultural outlook or perceptions of the parties; influence of the new trend setters – many of which cannot be accepted as Islamic practices. Let not the process of having the signature of the bride lead the Muslim community to yet an additional functional activity whereby extravagance takes place and Islamic values get minimized.
The Qur’an and the Hadiths are the only sources of guidance for the Muslims and no Muslim would ever change their life / lifestyle to the dictates of any other sources. Recognizing this basic principles of the Muslims (and also through representations made by the Muslims of earlier times), the State (ruling governments), under the Freedom to Practise one’s religionenshrined in the Constitution, enacted separate legislations for the Muslims in the areas of inheritance, marriage & divorce, and Mosques & Trusts viz. Muslim Intestate Succession Ordinance (1931); Muslim Marriages Ordinance 1896 followed by The Muslim Marriage and Divorce Registration Ordinance 1929 and the present Muslim Marriage and Divorce Act (1951) MMDA; and Muslim Mosques and Charitable Trust (WAKF) (1956).
No legislation is perfect at its initial stage and as time passes by may need amendments with the caveat that the ‘CORE’ of the legislation is kept intact. This is more so important with regard to legislations pertaining to religious affairs – in this case to Muslim affairs. As stated above, the Qur’an and the Hadiths (Sunnah) are not to be breached – this is the foundation. MMDA (1951) has to be looked at from this angle. Does the CORE of the MMDA comply with the Qur’an and Hadiths? And if it complies then there is no need for amendments. The procedural processes in the MMDA may have shortcomings in which case those processes could be amended with utmost attention and care. This is as simple as that. But what has happened is a consortium of people, with different orientations – Islamic, un-Islamic, Secular, and Deviance have jumped onto the MMDA bandwagon which has brought dire confusion to an otherwise very simple issue as stated above.
The present situation as regards MMDA is that the Justice Saleem Marsoof committee has finally submitted its Report to the Hon. Minister of Justice in January 2018. The Report is divided: one section (party) advocates amending MMDA and the other against amendments. The Report in its Foreword requests the Hon. Minister of Justice to take all necessary actions to have the recommendations of the Committee implemented as proposed in the Report – this request is ambiguous as the Report is divided between for and against the said amendments. Therefore, the Ministry has rightly called for representations from the Muslims through its website. In-depth study of the JSM Report by an independent body of learned, talented, competent and pious Muslims is necessary now to accept or reject the JSM Report and to find a way forward.
The look into the Muslim Personal / Family Law especially the MMDA is not a new occurrence. There were two previous committees viz. Dr. H.M.Z. Farouque Committee (Muslim Law Reform Committee, 1972); Dr. A.M.M. Shahabdeen Committee (Muslim Law Reform Committee, 1990). These committees suggested amendments to the administrative aspects of MMDA and not to the CORE of the MMDA. The Dr. Shahabdeen Committee said that the MMDA has stood the test of time and therefore needs very few amendments. Contrary to what the JSM Report says (3.2.01) about the reasons for the appointment of JSM Committee, the main reason had been throughout the insistence to repeal the Muslim Personal Law (MPL) by International human rights bodies, such as, the Committee against All Forms of Discrimination against Women and the Committee on Economic, Social and Cultural Rights – especially they have called upon Sri Lanka to amend its MPL to eliminate early child marriages. Sri Lanka is a State Party to the International Convention on the Rights of the Child which defines a child in Article 1 as a personunder the age of eighteen years, and the Committee on the Rights of the Child has called upon State Parties to prohibit and eliminate child marriages. International Conventions are one thing and religious rulings, especially of revealed religions, are another. The main issue is the definition of ‘child’ as per the International Conventions The definition of a child as one below eighteen years is not acceptable in Islam as Islam recognizes any person reaching puberty as a budding adult.
MMDA (1951) constitutes the main body of legislation relating to the application of Muslim family law, make registration of the marriage mandatory after the Nikah and it has functioned effectively from its beginning to date in the authentication of Muslim marriages in Sri Lanka. What else do the Muslims expect from MMDA? Marriage comes first and in certain cases divorce props up – there is no divorce without marriage. So if the MMDA is alright with the marriage of Muslims and if there happens to be ‘difficulties’ in the resolution of divorce cases in the Quaazi Courts, then let us resort to applicable corrective measures to put the functional, the operative and the administrative aspects of the Quaazi Courts to be efficient and effective in the future.
*M.R.M. Farook / Chartered Engineer.
To read the MMDA discussion on Colombo Telegraph click here
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