While emphasizing the need to enhance the social status of Muslim women in particular, the Kandy Forum has proposes changes in the areas of minimum age for marriage, consent of the bride, polygamy, mahar and dowry, divorce, maintenance and exclusion of women as administrative officers in the controversial Muslim Marriage and Divorce Act (MMDA).
In a statement signed by Prof. M A Nuhman, Prof. S H Hasbullah, Prof. M A M Sitheeque, M M. Niyas,, Prof. M S M Anes, J MMubarak, Dr. M Z M Nafeel, Dr. A S M Nawfhal, Dr. A L M Mahroof, J M Niwas and U M Fazil said, “It is the Muslim Marriage and Divorce Law that has been mostly contested and it has been admitted that there are anomalies in there to be rectified, particularly provisions that are discriminatory against women, contrary to the Quranic intension of gender equality, but based on age old social practices, disregarding the tremendous social changes the Muslim community has undergone during the last hundred years in Sri Lanka as in many other Muslim countries,” the statement said.
“We think that these changes are vital to enhance the social status of Muslim women in particular and the development of Muslim community in general,” they said in the statement.
The Forum proposed the adoption of a pluralistic approach in revising the MMDA, without restricting to a particular mathab (sect) and to incorporate all the appropriate and progressive aspects of Personal Laws of different mathab in order to give more importance to Quran and Sunna than individual mathab.
We publish below the statement in full:
Muslim Personal Law Reform in Sri Lanka
Proposals by the Kandy Forum
Muslim Personal law reform has become a more controversial issue recently due to the alleged involvement of European Union and the appointment of a Cabinet Sub Committee for review the subject. Muslim Personal Laws which have been in existence for a long time in Sri Lanka has come in for debate from different sections of the community and necessary reforms have been expected for some time. Many attempts made in the past to make reforms were futile, due to a section of the community is against any reform in MMDA as they believe that it is divine and unchangeable, and the Muslim political leadership is also evasive in this important matter.
Constitutional Amendments and Muslim Personal Law Revisions being contemplated at present, and we understand that the committee appointed in 2009 by the then Minister of Justice headed by the former Supreme Court Judge Mr. Saleem Marsoof is about to submit their report. Whilst the Quran and Sunna Perspectives have to necessarily stay intact, the practical provisions made to accommodate the contextual situation at the time need to be examined in detail for possible revisions.
It is the Muslim Marriage and Divorce Law that has been mostly contested and it has been admitted that there are anomalies in there to be rectified, particularly provisions that are discriminatory against women, contrary to the Quranic intension of gender equality, but based on age old social practices, disregarding the tremendous social changes the Muslim community has undergone during the last hundred years in Sri Lanka as in many other Muslim countries.
Given this situation the Kandy Forum has tried to study the MMDA in consultation with some Islamic scholars and look at making recommendations for reform so as to assist those involved in the reform process.
Whilst the Quran and Sunna perspectives have to necessarily stay intact, the practical provisions made to accommodate the contextual and situational adjustments at the time need to be examined in detail for possible revisions, considering the nature of our social mosaic that we live in. We wish to state that the proposed revisions here are within the frame work of sharia as interpreted by several ulamas and Islamic scholars in Sri Lanka and abroad. Sharia has continuously been a subject to various interpretations by different madhabs in the past and various Islamic scholars in the contemporary world as appropriate to their socio-historical context.
The Kandy Forum proposes changes in the following areas of the MMDA, namely (1) minimum age for marriage, (2) consent of the bride, (3) polygamy, (4) mahar and dowry, (5) divorce, (6) maintenance and (7) exclusion of women as administrative officers of MMDA. We think that these changes are vital to enhance the social status of Muslim women in particular and the development of Muslim community in general
1. Minimum age for Marriage
Child marriage is not religious but an age old social practice in different communities all over the world including pre-Islamic Arabia and in the Muslim world that prevails in many countries even in the modern age. According to a UNICEF survey more than 700 million women alive today were married as children. Child marriages are high in some Muslim countries like Afghanistan, Pakistan and Bangladesh. It is considered a social evil that deprives girls of their multi-faceted social developments.
The subject of Child Marriage has come to the focus due to the Request by European Union to ensure Child Marriage Regulations of the Human Rights Commission be adhered to. Islam, the Quran, does not prescribe minimum age for marriage but it prescribes maturity for marriage. Maturity implies not only physical as many think, but also psychological and social where a girl should have sufficient physical and psychological maturity to maintain a family, bear and care children. In the circumstances of the Quran and Sunna being not specific about the Minimum age of Marriage, which is interpreted as a mode to keep it open by Allaah in his wisdom, the contemporary need to specify age limit due to the present complications, the need to safeguard the very young girls being forced by circumstances, monetary or otherwise into marriage had to be balanced with the need to accommodate the small percentage of youngsters who had to get married early for exceptional reasons.
However, according to MMDA minimum age of marriage for a girl is 12 but under the general law it is 18 that is the widely accepted norm. The section 23 of the MMDA says that “a marriage contracted by a Muslim girl who has not attained the age of twelve years shall not be registered under this Act unless the Quazi for the area in which the girl resides has, after such inquiry as he may deem necessary, authorized the registration of the marriage.” According to this provision the marriage of a girl who is below 12 is also valid but not registered unless the Quazi certified it.
In view of the above the Kandy Forum came to a consensus to recommend that
(1) The unconditional age of marriage could be 18 years
(2) The conditional age of marriage to accommodate the request of the person and both parents to be 15-17 years. This concession need to be closely supervised by the Quazis subject to satisfying the Physical, Psychological and Medical Fitness of the Person for the said purpose.
2. Bride’s consent for the marriage
The consent of the bride for a marriage contract is fundamental in Islam. There are ample evidences for that; the prophet himself nullified the marriage without consent of the bride. However, the MMDA does not require the direct consent of the bride, she does not present at the Nikah and does not singe in the marriage register. Only the wali has the authority to act on behalf of the bride. Section 25 (1) (a) of the Act says that:
“for the avoidance of doubt it is hereby declared that no contract of marriage of a woman belonging to the Shaffie sect is valid under the law applicable to that sect , unless –
(a) A person entitled to act as her wali –
(b) the Quazi has under section 47, authorized the marriage and dispensed with the necessity for the presence and the approval of the wali.”
A number of cases of marriages without consent have been reported by field researchers and there is no provision in the MMDA to find out whether the bride has really consented or not.
In this context, the Kandy Forum wishes to state that a Muslim woman should enjoy equal right as a man enjoy, in determining her personal life and she shouldn’t be a silent party in a crucial contract such as her marriage. Therefore, the MMDA should have provision to get the direct consent or verify the consent of the bride and to get her signature in the contract.
In keeping with the Sunna Traditions it is recommended that Nikaahs must have provision for the free consent of both the persons to be received by signature in the presence of the witnesses.
Like child marriages polygamy also an age old practice in different communities all over the world including pre-Islamic Arabia and in the Islamic world. Although Islam, the Quran, did not prohibit the practice of polygamy, it imposes severe restriction on it. It restricts the number of wives a man can have at a time that is limited to four; was very progressive in a social environment where a man enjoyed no restrictions to have any number of wives at a time. And also Quran imposes a condition that he should be able to treat his wives equally and justly and the Quran categorically says that “ you are never be able to be fair and just as between women, if it is your ardent desire (4:129). It is obvious that Quran does not encourage polygamy but its intension is to curb it imposing severe restriction on it in order to abolish it from the society in the future. On this interpretation Tunisia abolished Polygamy and countries like Egypt and Malaysia have imposed severe restrictions on it.
The MMDA does not require the husband to get the consent of the wife/wives to marry another woman and his capability to treat his wives equally. According to the section 24 (1) – (4) of the Act “ a man who wishes to marry 2nd, 3rd or 4th time must give notice of his intention to do so to the Quazi of his area as well as the Quazi of the area where his wife/wives live, and the Quazi of the area where the intended wife resides. Such notice must be exhibited in all the Jumma mosques of the areas and any other prominent places. Without the Quazi’s certificate of the receipt of such notice the marriage shall not be registered.” But the Act does not impose any obligation on the Quazi to find out whether the husband is in fact able to treat all his wives equally and justly.
Polygamy is clearly described in the Holy Quran as being restricted but allowed for those who really need same and very much discouraged by describing the difficulties of the exercise. The Legal provisions of prior notice and other requirements is seen to be practiced very much on the breach and as such our Forum wishes that stringent regulations are formulated to practice the provisions in its totality.
4. Mahr and Dowry ( Siithanam / kaikuli)
In a Muslim marriage mahr is religious obligation and dowry is a social practice. However, in actual practice mahr has become ritualistic and symbolic while dowry has become obligatory in Muslim marriage in many parts of Sri Lanka.
According to the present Act the amount of mahr should be mentioned in the register and it may and may not be paid at the time of the marriage. Kaikuliis mentioned as optional and not obligatory to enter the details of item. (Form No. IV section 18 (2))
Kaikuliis defined by the Act as follows: “kaikuli means any some of money paid, or other movable property given, or any some of money, or other movable property promised to be paid or given, to a bridegroom for the use of the bride, before or at the time of the marriage by a relative of the bride or by any other person.” (Section 97). This section excludes immovable properties like house or land which are usually given as dowry to the bridegroom.
As kaikuli is un-Islamic some people suggest that it should be removed from the Act. Although kaikuli is un-Islamic, it is a widespread social practice that adversely affects women; its entry in the marriage register will help the women to recover it when the marriage terminates by divorce or death of the husband. However recovery of unpaid mahr and the given dowry from the husband is not easy under the Act. Therefore, it should be amended in order to safeguard the divorced women.
Although divorce is permitted in Islam, it is the least desirable thing in the married life. Prophet Mohammed (Sal) has said that “with Allah, the most detestable of all things permitted is divorce.” However, divorce is an increasing practice in the Muslim community in Sri Lanka due to various factors but mainly because it is comparatively a simple action for a husband.
Two types of divorce are recognized by the MMDA.
Divorce by the husband (thalaq)
According to MMDA (section 27 and the rules 1 – 9 of the second schedule, that stipulates the procedures of thalaq) thalaq is unconditional, that is, the husband need not to give any valid reason for thalaq and need not to proof it. He has only to give notice of his intension to the Quazi of his area. If the reconciliation efforts by the Quazi fail within 30 days the husband shall pronounce thalaq before the Quazi and two witnesses and the thalaq will be granted at the end of 3 months if the repeated efforts by the Quazi for reconciliation fail. For a husband thalaq is a simple process.
Divorce by the wife (Fasah/ Kulah)
MMDA provides provisions for two types of divorce (fasah/kulah) by the wife (see. Section 28 (1) and (2) and the rules 1 – 15 in the third schedule)
Fasah is a type of divorce granted to the wife on her request (without the consent of her husband) on the basis of fault on the part of the husband. The faults may be ill treatments, failure of maintenance, desertion, insanity or impotency etc.
Kulah is a type of divorce granted to the wife (with/without the consent of her husband) if she unhappy with her marriage, although no fault on the part of the husband; and she agree to give compensation to the husband or consideration to the husband in return for her freedom. Although this term kulah is not used in the Act, the section 28 (2) refers to this type of divorce.
But the procedures 1 – 15 stipulated in the third schedule should be strictly followed. The wife has to proof her complaints with evidence supported by not less than 2 witnesses. It is not possible for a wife to get kulah divorce without the consent of the husband.
The general criticism of MMDA on divorce is that it is discriminatory in nature. Men have more freedom to divorce their wives but women have more restrictions.
Family Laws of the Muslim countries like Tunisia, Algeria, Indonesia and Somalia have imposed some restrictions on divorce by men. It is said that the Personal Status Code of Tunisia adopted in 1956 is the most progressive legislation in terms of women’s rights in the Arab world.
Provision needs to be made in the New Amendments to bring all the above types of Divorces including the Right of the wife to request a Divorce without reason and on the Return of the mahr only. Once this is done it will tilt the scales very much more towards the Muslim women in this aspect as is desired by the religion.
According to Quran and Sunna the maintenance of a wife and children is an obligatory duty of the husband during the married life and after divorce. Maintenance includes providing food, cloth, shelter and medication etc.
A divorced wife can claim two types of maintenance namely iddath maintenance and Matah
According to MMDA 47(1) (d) a divorced wife can claim maintenance during the period of iddath or if she is pregnant at the time of the registration of the divorce, until she is delivered the child.
The amount is decided by the Quazi according to the means of the husband. It is noted that the maintenance for a short period of iddath is inadequate and it should be extended until the divorced wife remarried.
Matah is a lump sum payment of compensation or consolatory gift which is given to a divorced wife by the husband. However, it is not legally recognized by the MMDA and it is not obligatory for a husband to make a lump sum payment to his wife on divorce. Some Quazis decide it on their own discretion. Some women groups recommended that not only in thalaq divorce but also in fasah divorce the wife should be paid matah compensation.
In some Muslim countries, for example Indonesia, the property acquired during the marriage life is regarded as joint property of both husband and wife and on divorce it is divided according to the Law. There is no provision for this in the MMDA. In this Context the Kandy Forum recommend to revise the relevant section of the MMDA in order to provide sufficient amount of maintenance and compensation to the divorced wife.
7. Administrative Officers of MMDA
To administer Muslim marriage, divorce and maintenance there is a supreme body of The Muslim Marriage and Divorce Advisory Board under the chairmanship of the Registrar general with nominated Muslim members not less than four nor more than nine, Registrars and Special Registrars of Muslim Marriages, Quazis, Temporary Quazis and Special Quazis and the Board of Quazis with five Muslim members
According to MMDA all of these officers should be male Muslims and no Muslim woman can be appointed to these posts. It is obviously discriminatory against women and also against the fundamental principle of equality in Islam. While Muslim women play leading roles in various positions in political, social and judiciary sectors all over the world it is ridiculous to think that they can’t be appointed as Registrars of marriage and Quazis in Sri Lank, while in Muslim countries like Malaysia, Indonesia, Egypt and Palestine, Muslim women occupy the post of Quazis and Judges. According to several Islamic scholars it is not against Sharia. Quran and authentic hadith are not discriminatory against women.
The question of the possibility of Women serving in the different levels of the system of MMDA has been put forward by different sections of society and taking into consideration the success of such exercises in different Muslim countries, the involvement of Muslim Women into service is recommended.
MMDA does not stipulate any minimum educational qualifications to Quazis who carry out similar function of a judge in a civil court. There are a number of complaints against Quazis of their inabilities, partialities and corruptions. Therefore, the qualifications, qualities and the status of Quazis should be enhanced.
There is a final question that has to be addressed. The MMDA specifies that the Sri Lankan Muslims should be governed by the sect (mathab) traditionally they belong to. Mathabsare based on the interpretations of Quran and Sunna by individual Imaams and each mathab differs from the other in various important aspects of Islamic Personal Law. In this context, should the Muslims be governed by the sect (mathab) traditionally they belong to as specified by the MM DA.? Or can they follow Quran and Sunnaof the Prophet with their own rational interpretation appropriate to the modern context?
Kandy Forum wishes to propose to adopt a pluralistic approach in revising the MMDA, without restricting to a particular mathab and to incorporate all the appropriate and progressive aspects of Personal Laws of different mathab in order to give more importance to Quran and Sunna than individual mathab.
Prof. M A Nuhman, Prof. S H Hasbullah, Prof. M A M Sitheeque, Mr. M MNiyas,, Prof. M S M Anes,Mr. J MMubarak, Dr. M Z M Nafeel, Dr. A S M Nawfhal, Dr. A L M Mahroof, Mr. J M Niwas, Mr. U M Fazil.