By Ruwan Laknath Jayakody and Faizer Shaheid –

The Muslim Marriage and Divorce Act (MMDA), No. 13 of 1951, has rightfully come under fire lately for being patriarchal, and in relation to certain issues such as child marriage, even reprehensible. The patriarchy is so deeply rooted that no female is entitled to become a Quazi or a Registrar of Marriages. It gets even worse with further issues pertaining to underage marriage and the lack of written consent of/from the bride in a marriage.

Although the pressure for change has mounted only recently, the issue itself is nothing new. Many have claimed that Sri Lanka is caving into pressure applied by the United Nations. However, the issues have been taken up from nearly 50 years ago. It is well documented that one Dr. H.M.Z. Farouque led a committee for reforms in the 1970s, and a committee led by one Dr. Shahabdeen was set up in the 1990s to look into the shortfalls. More recently, the committee led by retired Supreme Court Judge, Justice President’s Counsel (PC) Saleem Marsoof, is on the verge of finalizing and presenting its report on reforms to the MMDA, supposedly on May 21 this year.

This article seeks to deal with Sections 1 to 26 of the MMDA and address some of the issues from a legal standpoint.

The Applicability of the Law

Section 2 of the Act (Section 16 too is linked to this) holds that the provisions of the MMDA apply solely to Muslims living in the country. This provision coupled with the fact that the Marriage Registration Ordinance in its preamble provides an exemption in the case of Muslim marriages, means that all Muslims wishing to enter into marriage are not afforded any choice with regard to the applicability of the law. The application of an Act of such a nature and of such intended purpose cannot be of an involuntary nature in terms of its application.

That said, it is a generally held opinion among certain lawyers who also happen to be Muslims (the authors spoke to Attorney-at-Law Noordeen Mohamed Shaheid) that Muslims marrying fellow Muslims (a marriage between two Muslims) can only do so under the MMDA and must compulsorily be registered under the MMDA. They hold that Muslims marrying non-Muslims however have one alternate albeit unattractive option afforded to them. This is that they can marry under the Marriage Registration Ordinance subject to one condition, the condition being that one has to declare oneself in the eyes of the mosque and the Muslim clergy as an apostate. They claim that marrying under any other law is not permitted unless such a person openly declares himself/herself to be apostate. According to them, in the event a fellow citizen objects to an attempt by a Muslim to marry a non-Muslim under the said Ordinance, the Muslim in question has no other option other than to marry under the MMDA. However, a certain other section of the legal community who also happen to be Muslims (the authors spoke to M.U.M. Ali Sabry PC) opine that a Muslim has a choice with regard to the applicability of the law in that s/he can choose to marry a Muslim or a non-Muslim under the MMDA or the Ordinance and therefore that the marrying under the Muslim personal law is only optional. Can two Muslims marry under the Ordinance?

How it applies voluntarily the authors cannot comprehend, as the language used in both enactments is fairly clear in that the marriages of and contracted among Muslims are regulated by the MMDA. Perhaps it is possible that the courtrooms have interpreted the law differently.

In the absence of laws governing religious conversions or anti-conversion, except in the instances of bigamy and polygamy (see the provisions in the Penal Code in this regard {Section 362B of which deals with bigamy} and the Supreme Court’s decision in Natalie Abeysundere v Christopher Abeysundere and Another which overruled the Privy Council’s ruling in Attorney General v Reid), a question arises over what is the exact nature of the conversion that takes place when a non-Muslim enters into a marriage with a Muslim or vice-versa. By virtue of Section 2 of the Act, does the non-Muslim entering into a marriage (where the registration is considered valid in law) with a Muslim automatically become a Muslim in the eyes of the law while retaining one’s non-Islamic faith on a purely personal level or is it to be understood that for all intents and purposes one is seen as having converted to Islam in both the law (legally speaking) and/or in one’s private capacity. In the case of a marriage contracted under the said Act, can a non-Muslim married to a Muslim, remain in the letter of the law, a non-Muslim? Article 10 of the Constitution recognizes the freedom of thought, conscience and religion while the right to equality provision in Article 12 guarantees freedom from discrimination on the basis of religion. Furthermore, Article 14(1)(e) allows for the manifestation of one’s religion or belief. These Articles found in the supreme law of the land, despite the exemption provided for personal laws under Article 16(1), can be considered as being violated due to the provision in Section 2.

The Strange Case of the Male Muslim Quazi

From Section 3 onwards, till Section 27, all references in the Act with regard to the Registrar-General who is also the Chairman of The Muslim Marriage and Divorce Advisory Board, the Deputy Registrar General, the Assistant Registrar General, the District Registrars, the Additional District Registrars, the members of The Muslim Marriage and Divorce Advisory Board, the Registrars of Muslim Marriages, the special registrars, the walis (custodian of the bride), the Quazis (a judge with regard to marriage and divorce related matters), the temporary Quazis, the special Quazis and the Board of Quazis, are in relation to them being ‘male’ Muslims. This is patriarchy at its worst. Once again the constitutionally enshrined right to equality and non-discrimination, the latter in this case on the grounds of one’s sex, applies. Also, Article 14(1)(g) provides for the freedom to engage in any lawful occupation or profession. Not just men but females too who are deemed to possess merit in relation to their capability with regard to carrying out of the functions of these offices must be permitted by law to do so.

Under Islamic principles, the general conception is that women are not entitled to be judges or leaders. The citation is obtained from the scriptures, and in particular a hadith as narrated by Imam Bukhari (4425) that reads, ‘It was narrated by Abu Bakrah that when the Messenger of Allah had heard that the people of Persia had appointed the daughter of Chosroes II as their ruler, he had said that, “No people will ever prosper who appoint a woman in charge of their affairs”.’

This is supported in Verse 228 of Surah Al-Baqarah in the Quran, ‘but men have a degree (of responsibility) over them’. Scholars have indicated other verses that support this stand. However, there have been other scholars who have debated the authenticity of the said hadith and claim that the verse has been misinterpreted. They claim that Abu Bakrah made the hadith at a time when he had participated in the Battle of the Camel where Aisha was the commander of the army. Had the hadith been legitimate, he would not have participated under her leadership, they claim. The scholars also argue that that Verse 228 of Surah Al-Baqarah does not claim the superiority of men over women, but rather speaks of the responsibility to protect women.

Further to this, there are citations of the wives of the prophet being in eminent positions, such as that of Khadijah who was a successful business person for whom even the prophet had worked for. Furthermore, the prophet had consulted his wife, Umm Salama prior to signing the Treaty of Hudaybiyyah, and she was also present during the signing. Other citations include a hadith in Sunan Abu Dawood where the prophet allowed a female to lead a prayer where the mu’addhin was a male.

“Umm Waraqah wanted to accompany the prophet to the Battle of Badr, but the prophet told her to stay in her home.” Further in this hadith it is said that the prophet used to visit her in her home. He appointed a person to give adhan for her and he told her to lead the prayer for the people of her house. Abdur Rahman ibn/bin Khallad (the reporter of this hadith) said that, “I saw her mu’addhin who was a very old man.”

It is of more relevance that Verse 71 of the Surah At-Tawbah refers to equality of men and women in being guardians of one another: “The believers, both men and women, they are guardians, confidants, and helpers of one another…”.

If one were to review the history of Islam, even during the time of the prophet, women were known to have played prominent roles in leadership. Hind bint Utbah is the daughter of Utbah Bin Rabi’ah and wife of Abu Sufyan ibn Habh and mother of Mu’aviyah. She along with her father, husband and son were all prominent leaders. Her role, together with that of Asma’ Bint Abu Bakr, was instrumental in the victory of the Muslims in the Battle of Yarmouk where the Muslims were greatly outnumbered by the Romans.

Aisha, one of the wives of the prophet also played a prominent role throughout the life of the prophet and even after. Yet, there were no qualms or complaints against her leadership in the Battle of the Camel. Therefore, it is rather abhorrent to claim that women are forbidden to take up positions of leadership in Islam, Muslim societies and any other society for that matter.

The Fit Quazi

Beyond Section 8 of the Act, in relation to various appointments of persons made under the Act, there are several mentions made of the use of criteria such as “fit and proper” and in the case of the appointments of Quazis, the prerequisite being that the person be “of good character and position and of suitable attainments”, which form the basis for such appointments. These notions while being both, ambiguous and vague, are also wholly insufficient and unsuited for the purpose. Above all, a thorough knowledge of the applicable and relevant laws of the land in this regard is a must.

Overfamiliarity with one’s denizens that may result from lengthy stays within one area, creates a propensity for abuses of power to occur. Therefore, it is urged that the Judicial Service Commission considers the transfers of Quazis. Whether they should be annual or otherwise (another timeframe) can be left at the discretion of the Commission. This is applied in relation to other positions in the country such as grama niladharis and divisional secretaries among others including members of the minor judiciary (magistrates and judges among them).

The Registration of Marriage

Following Part I of the Act which dealt with preliminary matters (which began with Section 3 and ended with Section 15), comes Part II which deals with the registration of marriages.

Regarding the matter of causing the registration of a marriage, as dealt with under Section 17(2) of the Act, the wali, usually a representative of the bride, signs on her behalf. However, the law does not expressly call for the bride’s consent through a signature. Her supposed consent is communicated by the wali, who is usually her father or her paternal grandfather. The only instance where the signature of the bride is required is if the wali is someone other than her father or her paternal grandfather, in which case, a declaration must be adduced.

The authors suggest that a female too should be allowed to be a wali. However, in the event that the dispensing of the services of the wali is not considered by the law and policymakers, it can be suggested that if the bride requires a wali, so too shall the bridegroom be required to have one. If it must be that the bride requires a wali, it would ideally be suited if the bridegroom too is represented by a wali. If it sounds unfair, then it is unfair for the bride too.

The wali, whether s/he be a member of the bride’s immediate family (a blood relative) or a distant relation, whether required by the Muslim law governing the particular sect to which the bride belongs to or not, cannot be understood to legally constitute a substitute for the bride under any circumstance. Under no circumstances should another be permitted to substitute for the bride in a marriage. The marriage is between two persons, legal, forming a part of a binding contract, where both parties must have expressly expressed their desire to spend their lives together as a family. The bride not only has to provide in person both, verbal (mere verbal consent communicated via someone other than the bride will not suffice) and written consent to the marriage with the bridegroom but also has to mandatorily place one’s signature on the relevant documents before witnesses (again only if the bride consents).

One may once again interpret Verse 71 of Surah At-Tawbah in this light: ‘The believers, both men and women, they are guardians, confidants, and helpers of one another…’. Men and women are ‘wali, or in plural, ‘auliya’ of one another.

The Hanafi school of thought recognizes that a marriage can take place without a wali. The idea is that the marriage of a free and sane adult woman is possible without the approval of a guardian provided that the one she is marrying is a legal and suited match to her.

It is also reported in Sahih Al-Bukhari (7:67) where the prophet said that, “A matron should not be given in marriage except after consulting her; and a virgin should not be given in marriage except after her permission.” The people asked, “O allah’s apostle! How can we know her permission?.” He said, “Her silence (indicates her permission).”

However, going by this hadith, a woman can communicate her lack of consent by expressly stating her lack of desire for the marriage. The problem is, under the MMDA, the entire process of registration takes place without the bride. Hence, there is no way of identifying whether the bride approves or disapproves of the marriage.

Section 17 (2) of the Act is also linked to Section 47(2), the latter which deals with cases where a Quazi may inquire into and deal with any complaint made against a wali by a woman or on behalf of a woman, when it is perceived that the said wali has unreasonably withheld his consent to the said woman’s marriage. Once again it must be reiterated that the position of the authors is that adult females of sound {medico-legally} mind too can be walis. The question to be raised here however is what would happen to the woman if the wali were to unreasonably give his/her consent. This is precisely why it is insisted upon that the bride be (made) an equal partner in terms of participation in the processes involved with entering into the bond and contract of marriage and the bride’s legal role be thus recognized in the relevant provisions of the laws.

As far as Section 18(3) is concerned, the prescribed fee which is to be paid in the form of stamps, could be supplied by the bridegroom or the bride or by both parties.

In Islamic precepts however, the iddah period is recognized in law. Verse 228 of Surah Al-Baqarah states: ‘And divorced women shall wait (as regards their marriage) for three menstrual periods’. For those who don’t have menstrual periods due to being either too young or too old, Verse 4 of Surah At-Talaq reads: “And those of your women as have passed the age of monthly courses, for them the ‘Iddah (prescribed period), if you have doubt (about their periods), is three months; and for those who have no courses (i.e. they are still immature) their Iddah is three months likewise…’”

However, this imposes a question mark on the status of the iddah of a man upon divorce. The general consensus in Islam is there is not. This is the religious ruling despite being contrary to human rights.

The iddat period mentioned in Section 22, which is applicable only to women (applicable following the spouse’s death or following divorce; the time period varies), from a human rights perspective constitutes a case of cultural relativism (aside to the many instances of such in the Act) and aside to this can be considered as a violation of the freedom of thought, conscience and religion (in the case of religion, interpretation of religious texts, as to their sacred and profane nature, is a subjective matter), and the right to equality and non-discrimination (on the basis of religion and sex), Article 14(1)(c) which enshrines the freedom of association, the previously mentioned Article 14(1)(e), Article 14(1)(f) to enjoy and promote by oneself and/or with others, one’s culture, and also the freedom of movement as guaranteed in Article 14(1)(h).

The Marriageable Girl Child

Section 23 of the Act does not set a minimum age of marriage for a girl. It imposes a restriction at the age of 12 years, where the girl child can be married off by the wali without the consent of a Quazi. This is a violation of a multitude of rights including sexual and reproductive rights, marriage and family, education, health, social security, an adequate standard of living, choice, liberty and freedom from child labour, to name just a few.

It is even worse that the age restriction is nothing more than a restriction, as the MMDA continues stating that if the girl is below the age of 12 years, she may be married off with the consent of a Quazi. The description of Section 23 reads “Marriage of girl who has not attained the age of twelve not to be registered without Quazi’s permission.”, while the provision in Section 23 stipulates that this is applicable “Notwithstanding anything in section 17.” All that is required then for the marriage of a girl below 12 years of age is for the Quazi for the area in which the girl in question resides, to conduct such inquiry as he may deem necessary, prior to authorizing the said marriage. Therefore, although unlikely to happen, it is quite possible under this law for a father or any other person with the entitlement of a wali to dispense of their toddler daughters who can barely crawl to another.

Of course, in Sri Lanka this is unlikely to happen. The lack of exact, precise and current statistics proves to be an unworthy indication of whether or not the practice exists in the country, but the law should not even contain the slightest hint of the possibility of such a situation arising. The practice of marrying off younger girls was a common practice in the past even in Sri Lanka, and continues as a practice in India and even in some of the Middle Eastern countries, where the father holds absolute control of and over his daughters. More often, the daughters are given in marriage to rich old men who tend to help a family from their financial predicaments. For a girl, this could be an equivalent to bonded labour where a child is sold into slavery as chattel.

Furthermore, Section 363 of the Penal Code recognizes as a criminal offence (statutory rape) sexual intercourse with an unmarried female below the age of 16 years, regardless of whether the said female consented or not. However, it also serves an exception to the rule if the female was above the age of 12 years and married under Muslim law. Incidentally, this provision also serves as a reminder that marital rape too must be criminalized. It is highly recommended that the minimum age of marriage for both, males and females, must be set at 18 years, without exceptions in the general and in the personal laws.

With regard to the minimum age of marriage, many scholars have proffered that Islam does not prescribe a minimum age of marriage and therefore the law should not either. They often cite the case of Aisha who was claimed to be merely nine years of age when the prophet consummated her marriage. This is derived from a hadith of Sahih Bukhari referenced in 3896: ‘Narrated Hisham’s father: Khadijah died three years before the prophet departed to Medina. He stayed there for two years or so and then he married Aisha when she was a girl of six years of age, and he consummated that marriage when she was nine years old.’

This among others has been cited as evidence of the prophet’s marriage to Aisha being lower than ordinary. However, there have been various misconceptions about her age, and it is possible that the hadith is inaccurate. It has been a topic of extensive debate over the years, considering that she had married the prophet nine years prior to his demise and quoted over 2200 hadiths, the latter being taken as indicative of her level of intellect, along with many other reasons that have been cited as examples to prove wrong the age of her marriage. The issue remains contentious.

However, the fact that Islam does not prescribe an age of marriage does not necessary mean it prohibits prescribing a minimum age of marriage. In various verses in the Quran, it is mentioned that the male and female must reach their age of full strength, and in other verses it speaks of the age of marriage as being the age of sound judgement.

Verse 22 of Surah Al-Haj states that, “We bring you out as a child, and then [We develop you] that you may reach your [time of] maturity”. Maturity in this case has been interpreted to mean the age of puberty by some scholars, while others have claimed that this refers to an age where a girl is wise enough to make decisions.

The Surah An-Nisa which speaks on the topic of women, in Verse 25, speaks of the marrying of a “young woman” and not a girl. The reference to a “woman” in this verse is indicatory of the fact that the female should have attained an age where she is capable of making firm and wise decisions for herself.

However, Verse 4 of Surah At-Talaq, may once more be of significance and has been referenced to justify child marriage in Islam. The Verse is on the iddah period for a woman upon divorce, but it also makes reference to women who have not menstruated. The verse is as follows: “And those who no longer expect menstruation among your women – if you doubt, then their period is three months, and [also for] those who have not menstruated. And for those who are pregnant, their term is until they give birth. And whoever fears allah – he will make for him of his matter ease”. This Verse can also be interpreted to mean that it covers women who have failed to menstruate in their lives, or barren women.

Bigamy and Polygamy

It is set down in Section 24(1) that if a married male Muslim living with or maintaining one or more wives intends to contract another marriage, at least 30 days prior to contracting the said marriage, the first person to whom he should give notice with regard to his intention is to the Quazi of the area in which he resides and to the Quazi or Quazis of the area in which his wife resides or each of his wives reside and to the Quazi for the area in which the wife-to-be resides. Rightfully, if one condones bigamy and polygamy, it is to the existing wife or wives that initial notice must be given before anyone else. Females are not afforded the same privilege afforded males and therefore in that sense this constitutes a violation of equality and non-discrimination.

Polygamy is justified as according to the Quran in Verse 2 of Surah An-Niaa: “And if you fear that you may not be just to the orphans, then you may marry whom you please of the women: two, and three, and four. But if you fear you will not be fair, then only one, or what your right hand possesses. This is best that you do not face financial hardship.”

Neither the Quran nor the Sunnah appears to provide evidence regarding the requirement of consent of the first wife in the marriage of a subsequent wife. Therefore, it is derived through ijma that there is no requirement of the consent of the first wife in Islam.

Conclusion

The authors will address matters pertaining to Section 27 of the Act and onwards in the next article on the subject. It is important to realize that when one marries another human being, it is a human being that one marries and not a religion or a culture (baggage), although religion and culture may be integral aspects, components or parts of the marriage equation. The latter however does not amount to the sum of the parts. On a concluding note, based on the above analysis of the Sections of the Act and the provisions, the said law in its present garb is highly repressive of the inalienable sovereignty afforded to all including females and the right to self-determination of all including females in relation to and with regard to the integrity of one’s terra firma and terra incognita, of one’s body and mind, both of which compose the realm of the ‘personal and the private’.