Colombo Telegraph

MMDA: Personal Laws At The Expense Of Fundamental Rights?

By Sabra Zahid

Sabra Zahid

Given the division within the Muslim community with regard to reforming the Muslim Marriage and Divorce Act of 1951 (MMDA), I thought I’d put down something as well to add to the discussion and also specifically after having listened to a few ladies share their experiences in the jury of a particular Quazi court (in the capacity of counselors of sorts). They had served under two Quazis, the first was quite accommodative, the second however was not so and they had to impose themselves, on what he hoped would have been an all-male jury.

The MMDA governs aspects of family law for Muslims in relation to marriage, divorce, maintenance, custody, and inheritance. The Muslim community is divided. On one end are those who call for reforming this law because of its negative impact on women and children. On the other end is the so called religious community (predominantly male) who want the law to remain as it is until the community calls for change arguing that the State shouldn’t give in to international pressure. However, the call for reforming the law dates as far as 1954, gaining momentum in the 1980s and with sporadic attempts there on. A section of Muslim women and men have been struggling for change and in light of this, I don’t see what this fuss about waiting for the community, as though these women and men who have been agitating for change don’t fall within it! Be that as may these demands are reasonable and long overdue. Opposing them defies all logic especially by those professing a faith which is supposedly universal and one in which justice is considered supreme and core to its belief system.

For instance the MMDA poses dangers by not stipulating a minimum age of marriage. Under the prevailing law, girls younger than 12 can be given in marriage with the authorization of the Quazi. Although in Sri Lanka it is not common for girls younger than 12 to be given in marriage, child marriages do in fact take place of girl’s between ages 14-16 and below 18 and so on. In light of this Sri Lanka should move ahead with times and raise the age of marriage as 18, as it has under the General Marriage Ordinance. There have been instances where the Mosque intervenes in instances where overzealous families attempt to give their girls in marriage. For instance, a relative was recently asked to wait until his daughter was at least 16 before given in marriage. This is highly commendable and is a sign that there are progressive elements within the system. However, there was no such intervention when a couple of years ago the same relative wanted to marry another daughter of his off at 14. Not only should the age of marriage be raised to 18, secular education should be made mandatory at least up to 16, because in most instances girls are sent to Madrasas (faith based institutions) which seek to inculcate in them a dogmatic approach to scripture and rituals. The social implications of such marriages are grave. The over reliance on their husbands for finances means even when abandoned or in situations of abuse there are no alternative means of fending for themselves. Apart from this, the burden of having to bear children and run a household, the capacity, and the ability to make decisions etc when one is herself a child has consequences not just for one’s self but for the whole family unit.

In terms of consenting to marriage the law treats Muslim women as legal minors even though they are “ready” for marriage. Although the proponents of the MMDA quote section 25 as a safeguard, a proper reading of the section would show that it is not in fact about the girl consenting but rather the significance of the Wali (guardian). Section 25 provides that a marriage is not valid unless (a) a person entitled to act as Wali is present in time and place (b) and communicates her consent and “his own approval thereof.” In any case there is no safeguard in place to ensure whether the guardian is actually communicating consent or whether the girl has been coerced, thus the law as it stands leaves space for potential abuse. In a particular case, a girl from Thihariya who had obtained good results for her O/L’s and who wanted to pursue her education, was deceived by her mother into taking her belongings including her school uniform as she was to be admitted to a better school to do her A/L’s. The mother who had other motives, dropped the unsuspecting girl to a house in Madawala where she was given in marriage, only for the husband to abandon her a couple of years later robbing her off from even the right to see her two children. She is now in her early thirties hopeful of continuing her education.

If the Quazi courts are to stay, then it is high time that the system is revamped with structural safeguards put in place to secure justice for those who come before it, especially women and children. The pros about the system are that it is informal, the cost, delay and formalities associated with the civil court can be avoided, and the parties don’t have to pay exorbitant fees for lawyers as the issue of legal representation doesn’t arise. However, in the absence of the role played by lawyers, the judge or rather the Quazi in this case ends up playing an inquisitorial role. Under an inquisitorial system, the court or the judge plays a prominent role in investigating the facts of the case as opposed to an adversarial role where the lawyers of both parties argue and present their cases and the judge takes an impartial stand. While the inquisitorial system has its obvious benefits, under a sub-par Quazi court system with inherent structural flaws the system has a skewed impact on gender relations within the Muslim community.

In most instances Quazi’s have geographical jurisdiction. There is no established streamlined systemized structure, and in the absence of it, each creates his own system. The quazi court operates on weekends and after hours. There have been instances of Quazi’s getting affected women to call them at odd hours to discuss matters. In the absence of designated premises, proceedings are held sometimes in court premises, in mosques or even at the quazis house. Although there are provisions for a jury, some Quazis don’t appoint one. Sometimes or rather most often than not, an all-male jury is appointed and it is in such a setting that intimate and personal details surrounding marriage and divorce are disclosed by both sides. Under the Muslim law, a divorce cannot be awarded during a woman’s menstrual state and the requirement of checking on this too falls on the male Quazi.

What is even more perturbing is that there is no qualification to be a Quazi, the only requirement being, “Muslim male of good character and position and of suitable attainments.” The Judicial Service Commission appoints Quazis who are not required to undergo any sort of judicial training. Although lawyers to an extent may be versed with the law, it is not so in the case of Moulavis or others who operate as Quazis.

The female jurors I spoke to shared that they noticed a trend where the Quazi kept giving decisions favourable to men and sometimes outrageous ones at that. One day the Quazi would take one stand, and on the next he would be meekly agreeing to the whims of a particular party. There was a case where on awarding the divorce, the Quazi did not bother to tell the girl that she was entitled to seek maintenance. Although these two ladies informed the girl of this provision, the girl was afraid to speak to the Quazi and these ladies had to tell the Quazi that the girl had something to say, which in essence compelled the girl to ask for her dues. In another custody incident where the husband put the wife and child out (as a result of which they had to spend a night on the streets) and subsequently the husband wanted to exercise visiting rights, the Quazi allowed it regardless of the fact that the child was simply not psychologically ready, fully aware that it was the father who kicked them out in the first place. Subsequently some of the jurors including the ladies I spoke to, began receiving calls alleging that the Quazi was taking bribes. Although this particular Quazi was removed around September they are not sure whether any other disciplinary measures were in fact taken. There must be a system of holding Quazis accountable and a transparent system of appointing Quazis based on objective criteria including qualifications with legal expertise. It has been nearly three months since this dismissal. However a new Quazi is yet to be appointed in this area. Provisions must be made to include female Quazis, jurors, and registrars. Some of the other discriminatory conduct include going easy on payment orders (maintenance/alimony). For instance, the Quazi is quick to listen to a husband who simply says he cannot afford to pay because he has no job, or that he has to now support a new family rather than proactively come to a decision on objective and reasonable criteria. In one case, the judge ordered a husband to pay Rs. 15000 a month for the wife and his 11 month old baby. The husband had refused saying he could only pay Rs. 2500 as he now has a new family to look after. This was agreed upon. Ideally the system should not allow subsequent marriages to take place in instances where the husband is unable to provide for the first.

Personal laws are enacted to provide special protection to minority groups, but in this case, these laws are serving to restrict and infringe on the fundamental rights of a section of its community, and vulnerable ones at that. Given this background it is without doubt that the MMDA no longer serves its purpose and must be reformed. It is high time that the conservative religious community recognizes the problems posed by this law and contribute and make way for change. The State regardless of any opposition must stop looking at this as a community issue, but as a rights issue of its women and children and as such prioritize and intervene to see this process through.

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