22 October, 2017

Muslim Marriage & Divorce Act, Some Perspectives On Rights And Reforms – Part II

By Mass L. Usuf

Mass Usuf

Mass Usuf

To preach about a thing and not act upon it is being insincere, dishonest and uncivil. In so far as fundamental rights and human rights in Islam are concerned the psychological state of the Muslims worldwide stinks with intransigence, prejudice and lethargy. Thus, paving the way for others to tell Muslims to clean up.

To advocate the growth of these rights in Islam is like the idiomatic expression, taking coals to Newcastle. Look at the lucid statement below from the world renowned, our own, Justice Weeramantry in his seminal work on Islamic Law.

“In the West human rights were fought for and then extracted from those in authority through a bitter series of tussles by man against man. Rulers stubbornly withheld privileges … …. Revolutions took place ….and fresh concessions were made. ….. and in this way, a growing body of rights evolved through the ordeal of bloodshed and struggle.” (page 116, Islamic Jurisprudence)

“In Islam there was accommodation for these rights (Human rights) within the original religious system itself and in the main source of law (i.e. The Quran and Prophetic teachings), as expounded from the very commencement of Islamic jurisprudence. There was hence no need for an ideological framework, nor for a purely secular struggle to win them on a purely secular basis. (ibid. page 121, – Italics mine)

While most unbiased human rights scholars appreciate the Islamic value system, the issue is grossly misunderstood by the average person. What most advocates seek unconsciously is a Procrustean solution (a one fit or preconceived structure) without any regard to the richness in diversity, the in-depth wisdom and philosophy of these rights as propounded in Islam.

It is through these complexities that one must navigate to reform a partly Islamic-partly unIslamic, Muslim Marriage and Divorce Act (MMDA). Some concerns are:

1. The demand that the bride also must be allowed to sign, the bride can then directly consent to her marriage

Marriage without consent is void ab initio. It is absolutely against the Islamic law to give a girl in marriage without her consent whether – direct or indirect. A statement of the Prophet states:

“When a man gives his daughter in marriage and she dislikes it, the marriage shall be repudiated” (Bukhari, 67:43).

The requirement of consent is enshrined in Section 25 (1) (a) (ii) of the MMDA which clearly states that a marriage is not valid if the Guardian (Wali) does not communicate the bride’s consent. The Guardian acts as the Agent of the bride and conveys her consent to marry.

Super Safeguards for the woman

  • In addition to the above, Section 25 (2) states if the Guardian does not communicate the bride’s consent such a marriage is not valid and will not be registered.
  • A further safeguard is seen in Section 26 (1) and (2) with regard to the Guardian.
  • Under 47 (2), the bride can make a complaint against the Guardian if he unreasonably withholds his consent to her marriage. This complain can be made directly by the woman or even by someone on behalf of her (note the additional protection). If necessary, the Quazi can dispense of the Guardian requirement altogether and grant permission for the bride to get married.
  • Moreover, if a bride wants to get married and she has no Guardian the law empowers the Quazi to dispense with that requirement and authorise her marriage. Vide. MMDA, Section 47 (3).

As far as signing is concerned, the instances of signature are under Sections 18 (1) and 19 of the Act. Section 18 (1) is the declaration made as per Form II (by the bridegroom) and Form III (by the Wali-guardian) of the First Schedule to the Act. These two forms effectively inform of the marriage to be solemnised and declaring that the particulars (name, address, etc.) furnished are true and correct. Therefore, neither the bridegroom nor the Guardian sign it signifying consent. It is only to attest the correctness of the details provided. The bridegroom signs because he is the person who provided his details.

Section 19 of Muslim Marriage and Divorce Act require the bridegroom, the two witnesses, the Guardian and the registrar to sign on the statement of particulars entered in the register and not as consent.

Here too, a safeguard for the woman is provided in a proviso to Section 18 (1) where the bride must sign if the declaration is made by a Guardian who is other than her father or paternal grandfather. This again is not signifying consent but attesting the declaration of details.

If the bride has a grievance, Section 40 provides for a complain procedure against the Registrar of Marriages.

Despite all of the above, if written consent is still insisted upon, suitable amendment can be made. Objectively, nothing substantial can be achieved except for increase in paper work.

2. MMDA treats Muslim women as minors, who even as adults are unable to marry without the permission of the guardian

If Muslim women are treated as minors how is it that Islamic law allows them to own and transact with their wealth, businesses and properties, all by themselves?

Take a real-life example where a boy and a girl have fallen in love. Obviously, both like each other but yet they would want the blessings of each of their parents before marriage. When it comes to marriage, every daughter is part of the loving and closely knit family unit. Even a Sinhala or Tamil parent will play a major role in their daughter’s marriage. The parental guardianship responsibilities demand that they must ensure the partner is suitable, of good character and several other factors before giving permission for their daughter to get married. A loving and obedient daughter however much educated she may be, will mostly respect the decision of the parents. It is the same parental guardianship that is prevailing under the MMDA too. In fact, it goes further and under Section 47 (2) safeguards the woman’s interest if hindered by the parent unreasonably.

Prophet had said: “There is no marriage except with a guardian and two witnesses of good character.” (Classed as saheeh by al-Albaani in Saheeh al-Jaami’ no. 7557).

3. No legal representation

Section 74 of the MMDA bars an Attorney at Law from appearing on behalf of a party or a witness before the Quazi. The Quazis have been functioning for the past half a century without legal representation from both sides. Legal representation would mean invoking other procedural laws like the Civil Procedure Code, Evidence Ordinance etc. The Quazis are not trained like secular lawyers but knowledgeable in the areas of Islamic marriage and divorce. Legal representations may ultimately complicate what is presently a simple procedure. Additionally, it can even cause the dreaded law’s delay. It may be emphasised that there is no legal representation for both males and females. Conclusion, there is no violation of any gender equality rights.

This is an area that is best left alone. The proviso to this Section however, permits legal representation at any proceedings before the Board of Quazis.

4. Muslim women should have the right to be appointed as Assessors, Quazis, Marriage Registrars, and to Board of Quazi

These are matters requiring selective reforms based on the ethos of Muslim society and practicality. There is provision in the MMDA for the Quazi to empanel three Assessors. In order to regularise and ensure that women are also appointed as Assessors, amendments may be made to that effect. In my view, it will be helpful for the Applicant and the Respondent and it should be done.

As for the appointment of Women as Registrar of Muslim Marriages under Section 8 of the Act, there can be practical constrains on her. She may have to travel at night to officiate the nikah ceremony. Culturally and traditionally, the nikah ceremony takes place in the presence of an all-male environment. Moreover, most of the nikahs are done in the mosque. If she is in a state of menstruation she may be excused from entering the mosque. If she is pregnant, that will cause her discomfort. She also may have to go on maternity leave. Or, if she is in Iddah (waiting period) she will not be able to carry out her duties for a long period. She will find it difficult to execute her functions smoothly and it may be burdensome for her. This is not discrimination but consideration and concern for the woman.

The Judicial Service Commission under Section 12 may appoint a Quazi. The appointment of a female Quazi is a matter open for consultation. Practically, the task for her may be difficult especially, when it comes to divorce. The parties are generally, hostile to each other. One of the big challenges will be to handle cantankerous, aggressive and rustic men. Even male Quazis sometimes have been abused and threatened by the husband or males from the wife’s side. At the time of pregnancy will the female Quazi be able to endure these conditions. It also begs the question as to how it will affect her mental health and that of the child she is carrying. Long maternity leave following pregnancy and iddah matters can be the other disadvantages. This is not necessarily like a normal desk job or a regular court environment. Discretion is the better part of valour.

Section 15 provides for the appointment of Members to the Board of Quazis. Provisions should be made to accommodate women who are suitably knowledgeable in Islamic law and the secular law (Attorney at Law), to sit as members of the Board of Quazis. This is a more formal court environment and there are other members also who will be sitting.

Positive reforms are required, inter alia, to provisions relating to (a) administration (b) procedure (c) qualifications for Quazi (d) matters which are alien to the Islamic law and (e) provisions which must be included in the Act. By the way, reforms are needed not only to the MMDA but to several of the substantive and procedural laws in our legal system. For the Muslim women who allege discrimination, please derive comfort from the verse below:

“Never will I allow to be lost the work of any of you, whether male or female; you are of one another.” (Qur’an 3:195)

For the Muslim men reflect on Verse 135 of Chapter 4:

“O you who believe! Stand out firmly for justice, as witnesses to Allah, even though it be against yourselves, or your parents, or your kin, be he rich or poor, Allah is a Better Protector to both (than you) ….” (The Quran)

Finally, even if Article 16 (1) of the Constitution is repealed, there must be a suitable Article in the constitution protecting the Muslim Personal Law because as stated earlier, it is unique and directly connected to the faith.

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Latest comments

  • 14
    5

    What is this nonsense? Agent giving a consent to marry someone(most probably a
    elderly man marring a child bride). This is not the 1st century. People can and should
    speak for themselves particularly in civil matters such as marriage. Just because someone
    who claimed that he is the final messenger of the almighty god and he himself is an
    illiterate nevertheless managed to recited letter perfect book which has answers to
    everything, we are supposed to believe that and laws should be changed or enacted
    to appease such private delusions,,,

    • 9
      3

      Some of the Islmic beliefs like that on marriage are a drag on human civilzation, whatever the origin of these beliefs may be.

      The Islamic world seems to be determined to stay happy in the dark ages when Islam came into existence.

      If they go on like this they will be left behind in the back waters even if their populations increase.

      In today’s world power of knowledge and of course the power of advanced weapons conquer the world, not backward views.

    • 2
      0

      Mass Usuf

      RE: 10 Minutes: Saudi Women’s Rights

      Is that What you want for Sri Lankan Women’s Rights?

      Published on Aug 23, 2016
      A 2015 gender gap index by the World Economic Forum has ranked Saudi Arabia as among the worst countries to be a woman, placing it at 134 out of 145 nations.

      But the question is, how long can this patriarchal society have women under its thumb?

      https://www.youtube.com/watch?v=_C4-_MD9LOQ

  • 13
    4

    Why some muslims wants to think that they are above every other human being ?

    they say it is their allah who said that.

    Why don’t they think, other people also can our allah is greater than yours and we were given the full authority in our own affairs ?

    If another group says that what would the muslims say, go to war and kill that group ?

    They raise their hands to allah who is in the space. Why don’t some muslim Scientists prove it or get some evidence at least ?

  • 8
    2

    Mass Usuf

    RE:Muslim Marriage & Divorce Act, Some Perspectives On Rights And Reforms – Part II

    Revelation Vs. Reason, Observation and Data.

    1. The demand that the bride also must be allowed to sign, the bride can then directly consent to her marriage.

    It may have been all tight 1,400 years ago when paper was scare and only a few people can write. This is an important contract that be recorded and witnessed.
    After all property transfers are recorded and witnessed, in writing.
    Reform your process.

    2. MMDA treats Muslim women as minors, who even as adults are unable to marry without the permission of the guardian.

    Thet treat them as chattel, slaves to be transferred between men, the guardian the the bridegroom, who mt be between 12 and 100 years old. All yiu have to do is pay off the guardian. This is slavery.

    3. No legal representation

    This is ridiculous. This is removal of a fundamental human right.

    4. Muslim women should have the right to be appointed as Assessors, Quazis, Marriage Registrars, and to Board of Quazi.

    If they are qualified, they should be eligible to be appointed.

    “Finally, even if Article 16 (1) of the Constitution is repealed, there must be a suitable Article in the constitution protecting the Muslim Personal Law because as stated earlier, it is unique and directly connected to the faith.”

    Faith is a personal matter. You cannot restrict or remove the human tights of girls and women, trat them as chattel and slaves, that are given to men. Men and women can pray directly to God, Allah. It does not mean that you can give rights only to men, and not to women.

    Where is the root problem here. It is Tribal customs and imposing religion to promote tribal customs of middle ages.

    In Christianity there is Original Sin and Redemption from Original Sin through Jesus.

    In Islam, there is no Original Sin and Redemption.

    In Islam,in Tribal Arabian customs, there is Sin for girls and women to be born as girls and women, because they have two X Chromosomes and lack a Y Chromosome.

    The Girls and Women bring shame. Therefore the “owners” need to have the on a leash, a Guardian, A Mahharam, so that thei do not go wild, and jump in the closest available man, and bring shame to the family and tribe.

    The Redemption is the Honor.

    So, in Tribal societies they do the Honor killings.

    The same happens in Islam. If a Muslim leaves a faith or denounces the Faith, it brings shame to the tribe, family and community, and the exemption is the Honor Killing, the punishment for the Traitor.

    Can we apply this rule to the Turncoat, Traitor Gon Sirisena, as he has brought shame to Yahapalanaya, Good Governance?

    • 2
      0

      Mass Usuf

      RE:Muslim Marriage & Divorce Act, Some Perspectives On Rights And Reforms – Part II

      Revelation Vs. Reason, Observation and Data.

      The Wahhabi Saudi Version.

      Saudi Born Atheist Ex Muslim – Family Would Have Killed Her If She Didn’t flee

      https://www.youtube.com/watch?v=7ahYnLtxF5s

      Philosophy and mathematics is the Work of the Devil.

      Dr Neil DeGrasse Tyson About islam and how backward it makes humans

      Published on Jun 30, 2016
      PART of speech about naming rights , here one of the best scientists of our times says how Islam made humans retarded ….

      https://www.youtube.com/watch?v=BwseqzOGf3g

  • 4
    2

    Mass Usuf

    RE:Muslim Marriage & Divorce Act, Some Perspectives On Rights And Reforms – Part II

    //“In Islam there was accommodation for these rights (Human rights) within the original religious system itself and in the main source of law (i.e. The Quran and Prophetic teachings), as expounded from the very commencement of Islamic jurisprudence. There was hence no need for an ideological framework, nor for a purely secular struggle to win them on a purely secular basis. (ibid. page 121, – Italics mine)//

    //“Never will I allow to be lost the work of any of you, whether male or female; you are of one another.” (Qur’an 3:195)//

    Then how come many Muslims treat women as chattel to be transferred between men?

    Is is because the women and girls are likely to bring disgrace to the Family, Tribe, Community and Religion, and therefore must we kept separate and secluded?

    When a Muslim women is raped, she is accused of bringing dishonour to herself, her family, her tribe and her community? Why?

    The Sharia Law required 4 witnesses. Usually, the 4 witnesses are the rapists, and they will claim that the women enticed them. A raped Muslim women cannot get justice under Shari Law.

    How women are treated under Sharia law in Dubai Alicia Gali story Part 1 of 2

    https://www.youtube.com/watch?v=LUM3pTwp6xY

    Published on May 13, 2013

    To all of you people that think Islam is a healthy thing that respects women rights, I like you to tell that to this woman. Islam is NOT a race, NOT an ethnic group, NOT a country, and most definitely NOT peace loving, so criticism of it is NOT racism. This phenomenon is a brutal, savage, and merciless religion that promotes the killing and oppression of anyone that isn’t Islamist (as per the Qu’ran) and views women as inferior things that are no more than mere possessions of their males superiors and therefore if a woman is raped it’s definitely her fault. Sounds fucked up? That’s because it is fucked up, and like ALL religions its ultimate goal is to rule the whole damn world in a state of absolute religious oppression. Time to wake up people, religion is the ultimate enemy of mankind and no religion have made as much progress in destroying the free world as Islam had. This story comes from Dubai, the pretty sky scrapper boasting Dubai that have been sold to the west as a beacon of civilization, yet Dubai’s key underlying reality is Islam!

    • 5
      1

      Muslim treating women likes slaves ? if so it is totally unIslamic wether u accept it or not.

      The Quran admonishes those men who oppress or ill-treat women:

      “O you who believe! You are forbidden to inherit women against their will. Nor should you treat them with harshness, that you may take away part of the dowry you have given them – except when they have become guilty of open lewdness. On the contrary live with them on a footing of kindness and equity. If you take a dislike to them, it may be that you dislike something and Allah will bring about through it a great deal of good.” [Noble Quran 4:19]

      Considering the fact that before the advent of Islam the pagan Arabs used to bury their female children alive, make women dance naked in the vicinity of the Ka’bah during their annual fairs, and treat women as mere chattels and objects of sexual pleasure possessing no rights or position whatsoever, these teachings of the Noble Quran were revolutionary. Unlike other religions, which regarded women as being possessed of inherent sin and wickedness and men as being possessed of inherent virtue and nobility, Islam regards men and women as being of the same essence created from a single soul. The Quran declares:

      “O mankind! Reverence your Guardian-Lord, who created you from a single person, created, of like nature, his mate, and from this pair scattered (like seeds) countless men and women. Reverence Allah, through Whom you demand your mutual (rights), and reverence the wombs (that bore you); for Allah ever watches over you.” [Noble Quran 4:1]

      The Prophet of Islam (peace and blessings be upon him) said, “Women are the twin halves of men.” The Quran emphasizes the essential unity of men and women in a most beautiful simile:

      “They (your wives) are your garment and you are a garment for them.” [Noble Quran 2:187]

      Just as a garment hides our nakedness, so do husband and wife, by entering into the relationship of marriage, secure each other’s chastity. The garment gives comfort to the body; so does the husband find comfort in his wife’s company and she in his. “The garment is the grace, the beauty, the embellishment of the body, so too are wives to their husbands as their husbands are to them.” Islam does not consider woman “an instrument of the Devil”, but rather the Quran calls her Muhsana – a fortress against Satan because a good woman, by marrying a man, helps him keep to the path of rectitude in his life. It is for this reason that marriage was considered by the Prophet Muhammad (peace and blessings be upon him) as a most virtuous act. He said: “When a man marries, he has completed one half of his religion.” He enjoined matrimony on Muslims by saying: “Marriage is part of my way and whoever keeps away from my way is not from me (i.e. is not my follower).” The Quran has given the raison d’�tre of marriage in the following words:

      “And among His signs is this, that He has created for you mates from among yourselves, that you may dwell in tranquility with them; and He has put love and mercy between you. Verily in that are signs for those who reflect.” [Noble Quran 30:21]

      Before ponting fingers at others you better spend some time on how to fix your underage daughters and sister young as 12 begin banged by random guys

      • 4
        0

        ijaz

        But the question is, how long can this patriarchal society have women under its thumb in the birthplace of Prophet Mohamed and Islam?

        https://www.youtube.com/watch?v=_C4-_MD9LOQ

  • 4
    3

    if you want your law go to a Muslim country w e cant practice our religions in muddle east you can have everything your way and Abuse underage innocent girls , your religion is good for midi evil times , this is 21 century.

    • 10
      3

      arjuna

      We have our Sinhala/Buddhist noisy minority. We have our Latin/Christian noisy minority. We have our Arab/Islamist noisy minority. We have our Tamil/Saivaite noisy minority.

      Are you of the opinion the silent majority from each community should go back to whence their religion originated just because the noisy minority is too loud?

      • 7
        1

        Classic Native Vedda there.

        LOL!

        PS:
        Wonder where our in-house scholar on all affairs related to Political Islam stand on this matter.

  • 8
    0

    These all personal laws introduced by the British as this nation were very united so they.So they did many things to divide and rule.Vhara Devalagam,Udarata,thesawalame,Muslim etc laws were introduced to in this purpose.
    I think as Ceylonese we should have one personal law and let the religion to be extremely a personal choice.A religion is nothing to do with state affairs.Being a citizen of this country we all should have one law.One’s religion must be a personal thing.So merely you are BEING a Muslim or a Buddhist or a Hindu how come you can have special privilege to go against the acceptable norms an decency of a civilized human being.So we should abolish all the special laws and should come out from the hell that English created hundreds years back.

  • 5
    2

    This is the tip of the ice berg . GSP to be granted,
    Homosexuality to be legalized, this is what Europe
    Wants Sri Lanka to do.
    All religions in Sri Lanka oppose this, so create a diversion.
    Get a donkey like Gnanasara and talk against Muslims.
    Devide and rule.

    • 3
      1

      Jehan,

      Both Hinduism and Buddhism have no views on homosexuality; hence, it is wrong of you to say that all religions oppose it! Homosexuality is a fact of life and advance societies are adjusting and there is nothing wrong in Sri Lanka adjusting too.

      If you do not like homosexuality, do not practice it. But who are you to tell others as to how to conduct their sexuality?

    • 3
      0

      Jehan

      “Homosexuality to be legalized, this is what Europe
      Wants Sri Lanka to do.”

      It looks loke homosexualuty has its roots in evolution, and how cells are divided and expressed.

      Do you accept evolution? Data Supports it. You evolved from primate ancestors with 48 chromosomes, and your chromosome #2 was formed by the fusion of two primate chromosomes.

      Were Adam and Eve Primates with 48 Chromosomes?

      Ken Miller on Human Evolution

      Uploaded on Feb 14, 2007
      Dr. Ken Miller talks about the relationship between Homo sapiens and the other primates. He discusses a recent finding of the Human Genome Project which identifies the exact point of fusion of two primate chromosomes that resulted in human chromosome #2.

      https://www.youtube.com/watch?v=zi8FfMBYCkk

      • 0
        3

        amarasiri:

        It looks loke homosexualuty has its roots in evolution, and how cells are divided and expressed.

        NO one will ever solve the sexuality or behaviour of an individual based only on genetics.

        Western Science is based on materieal aspects of the universe. It won’t work. Even charles Darwin knew his theory was not will not answer many questions. big Bang theory has so many holes.

  • 9
    1

    Salam Usuf…we don’t wish to see funny things here

    1. No issues just amend to singe…bcs most marriages taken place in Mosques where bride is not allowed (practically also) and she never get a chance to see who is witnessing….(she may be able to see the documents once it registered and after everything over!!!?///

    2. Generally bride consent is no made important in practical cases so at least she will have little chance to show her dis approval (may be forced by family – this is common to all religion )

    3. She is going to have life and you or me will be part of it show at least she should know and verify who is I am getting before, and while marriage …

    4. appointing females Assessors, Quazis, Marriage Registrars, and to Board of Quazi etc. …your point is not acceptable as where females participate weddings in night so why Marriage Registrars etc can’t….? why she can’t visit mosque as authoritative person where muslim female lawyers can do for their official duties etc…? and during pregnancy and iddah another female or male who will do the duty just life offices function etc.

    5. Islam dose not prescribe minimum age of marriage and it allow person who is attained maturity to do so. and Islam dose not prevent adopting procedural law in anywhere.

    5. Regarding consent — are your 12 year old child capable to give her consent with its consequences? so in this situation a competent authority/court should verify and give concern for marriages (can amend in this way)

    6. in current practical situation girls were given for marriages due to poverty and family issues and generally this is happening in rural areas.

    7. All us as Muslims must think about a child education, her childhood, her teenage and really her future…in practical we can’t expect every man is good in sex…so a child can with this type of man ??? and also almost in 100% of such marriage child’s future taken away!!

    8. Since Islam which is not prevent making a common age for marriages why we can’t have such as procedural one. and not one ask you to change the islamic law but ask to adopt procedure.

    Finally, I must say all muslims that until this is happen to your own child you never reality the seriousness of the same.

    Salam

    • 7
      2

      very true

      “Unless it happens to your child , you never realize the seriousness of the same.”

      I know some important person insisted that polygamy should not be removed from the MMDA. But i wonder what he has got to say when his son in law, took a second wife.

      Even Prophet sal did not permit his son in law Ali to take a second wife as it will hurt his daughter.
      Yes it hurts if it is your daughter.

      I would like to know whether there are any parent who would like the daughter married at 12.

      • 4
        0

        Bravo; more Muslims should speak out and question such ancient practices.

      • 2
        0

        Salma Junaideen

        You’re a great person, appreciate your bravery.

        Please work hard to take your community to the right track

        No one should be left in darkness.

      • 1
        0

        salma junaideen

        RE: 10 Minutes: Saudi Women’s Rights

        Is that What you want for Sri Lankan Women’s Rights? Clearly Not.

        Published on Aug 23, 2016
        A 2015 gender gap index by the World Economic Forum has ranked Saudi Arabia as among the worst countries to be a woman, placing it at 134 out of 145 nations.

        But the question is, how long can this patriarchal society have women under its thumb? Arabia is the birthplace of Prophet Mohamed and that of Islam, now taken over by the Iblis, Satan following Wahhabies, Salafies and their clones, to promote their Tribal Customs and ideology.

        https://www.youtube.com/watch?v=_C4-_MD9LOQ

  • 2
    4

    Radicalisation is the after effects of clamping down on the Islamic way of life. Radicalisation will have no value if Muslims are allowed to practice their faith as prescribed by the Noble Quran and the authentic statements (sunnah) of the Prophet Mohammed. (peace be upon him) A liberal secular system of governance focuses on the material aspects rather than the moral, ethical and spiritual.

    Hopefully, the spirit of the Islamic Shariah will prevail insha’Allah

    • 5
      1

      Maghribi

      “Prophet Mohammed. (peace be upon him)”

      Hasn’t he attained peace after his death in 632 AD? Is he he still fighting from his grave?

  • 7
    1

    The article does not address the real issues that are at stake.

    True, the MMDA requires the consent of the bride, but it is the bride’s guardian who communicates such consent, and it is his word against hers.

    That is why there is a need for the bride to expressly state her consent and in the local context requiring the bride’s signature should meet this requirement. This is because in the local Muslim marriage ceremony there is no practice to formally obtain the consent of the bride as happens for example in India.

    Furthermore, it may be asked why a legal requirement for a marriage guardian? Does not this assume even grown up women are minors? Islam certainly gives women the right not only to consent to, but contract marriage at their own discretion, with verses in the Quran and the case of Subai Al Aslamiyyah mentioned in the Muwatta being ample evidence to support this view.

    The hadith cited by the writer gives a very narrow interpretation in attempting to confer the right of approval to an agnatic guardian such as father or brother whereas actually it refers to an agency, in other words an agent appointed by the bride to contract a marriage on her behalf for reasons of propriety which again is supported by the ahadith or prophetic traditions. See: http://asiffhussein.com/2015/04/02/freedom-of-marital-choice-in-islam/

  • 2
    0

    Brother Usuf

    All that is being demanded by certain enlightened members of the Muslim Community is the ’empowerment of the muslim wife’ by making some critical changes to the existing MMDL. Quoting the Quran and the Sunnah in an attempt to make such demands defeasible is unacceptable. Be empathetic. Examine the effect of these outdated laws on your sisters – from the point of view of your sisters not from the point of view of intransigent, dogmatic males. Please bear in mind that ’empowering the muslim wife’ will only serve to strengthen the institution of marriage among muslims by ensuring that a mutually-respectful relationship is established and grows between two equal partners.

    As Ekelbroom, another member of the group of lateral Islamic thinkers in Sri Lanka, correctly stated in a recent post in CT “The MMDL is based on Fiqh Laws. Any ‘amendments’ to the MMDL in it’s present form will therefore not require the breaching of Shariah Laws. It will only require the re-interpretation of Shariah Laws (amended fiqh laws) so that they are compatible with the changed socio-religious environment that encompasses the Sri Lankan Muslim Community in this day and age.” Any attempt therefore to equate the demand for changing the MMDL with changing the immutable Shariah Laws is deceitful and utterly contemptible.

    Brother Usuf

    Readers of CT would also be interested, I’m sure, if you could kindly clarify as to whether the points of view expressed in your article reflect your own individual opinion on this matter or whether it reflects the opinion of the (all-male) National Shoora Council of Sri Lanka of which I am told you are a senior member of it’s Executive Committee.

  • 1
    2

    Islam and being a Muslim is not subject to personal prejudices and fancies. Being a Muslim has a clear cut definition and any person who does not fit into that definition ceases to be one (a Muslim)and becomes an apostate. When he subscribes to the set Islamic beliefs then he overtly acknowledges that he will be governed by Islamic Shariah – which a Muslim acknowledges as being a product of divine intelligence, holistic, eternal and all comprehensive in scope unlike secular law – limited in scope, piecemeal and due to inherent defects need amendment after amendment but continues to be imperfect.

    As those who are not Muslims and do not subscribe to these beliefs, they will not find it acceptable to be governed by Islamic Shariah and it is understood

    Next since this is a nation where the vast majority are not Muslims, the nation is governed by secular laws. But in matters of personal law Muslims should be allowed to be governed by Islamic Shariah and the State should not try to interfere in the drafting, adopting and implementation of same except may be where it directly impinges on the functionality of the General Law and as far as I know the MMDA does not do so

    Next Muslims should know that the Islamic Shariah is far superior to secular law and if a dispassionate and objective debate is held it could be amply demonstrated to be so. We need not go on the back foot to defend Islamic Shariah. It is indeed far superior to all secular legislation keeping in mind the well being of human society. The blind following of western euphemisms such as ‘human rights’, ‘gender empowerment and equality’ has paved the way for outright subjugation, exploitation of women and children in western societies and all those nations emulating western values. Western society is in the depths of depravity and fallen into a quagmire from which it is unable to extricate itself due to its stupid and blind value systems

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      Yusuf,

      You are an idiot and only good enough to fly a kite.

      “Next Muslims should know that the Islamic Shariah is far superior to secular law…..”

      Superior on what? You stupid fool; under secular rule all people of all faiths can live equally. Whereas, under the Islamic Sharia governance, all others are persecuted and forcibly converted; you call this divine and supreme!

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    If the those elements wishing to bring amendments to MMDA are willing to come for an open, dispassionate and objective debate it can be amply demonstrated Islamic Shariah on which the personal law of the Muslims in Sri Lanka are based, is far superior to all secular law whether in Sri Lanka or any other nation. Muslims in the know need not go on the back foot but move on the front foot to demolish on the muck that is peddled on the social media

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      Yusuf. As Muslims we know that Sharia law is great but that does not give us the excuse to peddle misogynistic ideas as Sharia. The MMDA with its requirement for marriage guardianship and treating women as legal minors is not wholly based on sharia but some backward ideas originating from unsecure men.

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    I don’t feel that Islam is a religion.The Kuran Itself is just like a constitution of an organization.There is no philosophy enshrined in the Kuran.The followers don’t have freedom to think.No body can question whether it is wrong or ritght because “Allah is a Better Protector”
    To staggers my imagination is there are many erudite people scholars and intelligent people believe in this Constitution of Islam.
    However Kuran never ever give way for freedom of thinking.It only create fear in Allah.

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      Vipula

      “To staggers my imagination is there are many erudite people scholars and intelligent people believe in this Constitution of Islam.”

      “However Kuran never ever give way for freedom of thinking.It only create fear in Allah.”

      As interpreted by the Ulema and the Mullah, Revelation is above Reason, Observation and Supporting Data. Read about Avoroes and Al Ghazali in the 12th century, when Islamic Science and Philosophy flourished.

      So, the Earth is Flat, spread out like a carpet, the Sun goes around the Earth and sets by going into a pool of muddy waters, and man was created from dirt with Adam and Eve. These myths were common during the middle ages and even the Greeks got some wrong.

      However, the Sri Lankan Muslim girls and women must not be treated as Chattel, to be trade between men.

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    Muslims have become dumb in the name of Quran

    Read below:

    A women’s group is calling for Sharia courts to be banned in Indiato stop inequality and violations of human rights.

    The Muslim Women’s Quest for Equality (MWQE) has filed an affidavit arguing the courts, which govern marriage, divorce and family cases for India’s 150 million Muslims, should not be allowed to function as a parallel judiciary.

    Its case said organisations including the All India Muslim Personal Law Board (AIMPLB) “should be abolished to save the country and Indian Muslims from the clamp of fundamentalists/activists,” the Hindustan Times reported.

    The MWQE argued that freedoms under India’s secular constitution were being abused to leave the courts “entirely free from government control”.

    Opponents to sharia have said the Islamic system is contrary to justice

    The country’s Supreme Court rejected a previous petition seeking to ban Sharia courts two years ago, but stressed that they had no legal powers over Muslims and their decisions could not be enforced.

    Its ruling said Islamic judges, who interpret religious law, could only rule when individuals submitted voluntarily to them and their decisions, or fatwas, were not legally binding.

    Vishwa Lochan Madan launched the 2014 petition after a Sharia court ordered a woman to leave her husband and children to live with her father-in-law, who had raped her.

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    People who look upto the west and say its advance society- must have their head examined.
    50million people dead 2nd world war
    bombed japan with the automic bomb
    killed 50million asians/africans from 1950-2016 for what?
    accepted Homosexuality legally- which no generation before has ratified as legal, though in socities it was a private affair- Luth (soDAM & gOMRAH)
    HIGHEST DIVORCE RATES/ NEGLECTED CHILDREN/ABUSED PARENTS NO RESPECT .
    goto war for lies : WMD. IRAQ/LIBIYA/AFGHANISTAN/SOMALIA/VIETNAM/KOREA/ NEXT?????

    Appreciate the culture what we have before accepting all nonsense from west, to get GSP benifit will be for only few factory owners. Majority workers will be still getting the same minimum wage.
    We have: kandyan law/Hindu marraige law/Roman dutch law/ Muslim sharia law
    so be it.
    we would have donkeys like gnana telling us bahubutha to devide and rule.

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    Kandyan Law: Its legal for a women to have two husbands(Polyandry)
    its still practiced by some sri lanken familys.

    Sharia Law: Its legal for muslim man to have 1-4 wives at a time , if he can be equal to one another. (Polygomy)

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      Jehan

      Though controversial you’re right, Kandyan women enjoyed freedom to have more than one husband. (I should say it’s outdated and people don’t marry under Kandyan law now)

      If you can marry 1-4 wives why don’t you give that freedom to your (Muslim) women.

      Where’s equality? Is sharia reasonable?

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        The theory is simple:

        A woman with a husband can say who the father to her kids. A woman with many husbands can’t obviously do it.

        Equality is a fake propaganda of West / US. It is the nature that says Women and Men are not equal by many ways that dumb human can’t understand yet.

        Can men get pregnancy? Why do men have different genetics than women? Why are men physically stronger than women?

        Just because we can’t adjust the nature, we try to please women fake ‘equal rights’ is purely cheating them.

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          DNA tests are available to test the paternity

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    It’s not easy to show truth for Muslims, they’re inside a dark cloud; the Islam cloud; hiding the truth.

    Take pity on them.

    Muslim women have a role to play to open their eyes, unless their suffering will be there for ever or continue to live in fools paradise.

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    Women and men are different not equal.
    They have there own role to play in life.
    This equality joke in west has demeaned women to be
    Sex objects, and made men confused of there sex.
    So I get children in west cross dressing because
    There culture doesn’t know what sex they belong to.
    We don’t want this nonsense .
    Homosexuality is a crime, and I stand by it.

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    I find very funny how idol worshippers like Buddhist and Hindus tell
    Muslims live in a cloud, we live in a cloud because we a destined for heaven,
    Where your destiny is hell,
    How can a man made idol save u,when even a dog shits on it, it cannot do a thing.

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      Jehan
      Could not agree more!
      Real Buddhists do not worship idols, They follow teachings silently!
      majority in Sri Lanka are not Buddhists, They are idol worshipers who try to go to heaven like Muslims and Christians!

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    Usuf

    Ignorence is a bliss!
    Keep it up man! If educated (Errr! are you?) ones like you argue like this, What chance moderates have with Jihadists!

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    ignorance cannot be a bliss if it leads to hell.
    There is only one Allah and Prophet Mohamed is his messenger.

    Just for SG what is Nirvana? as i get it it is basically non existence.
    why do a person wish for non-existence in any form.
    what is the gain, where is the justice, who ever does harm , are reborn again, buddhist kharma concept- who does this even in this thinking.
    (i mean who handles the re-born process, ) . does it automatically manifest, without a being.
    What i know little of buddihism is that it was a system to live ethically/morally/rightously at that time period – can say devised by Prince Asoka(Buddah later). due to the oppressive nature of the hindu caste system, a large number of followers he got.
    He didnt deny the existence of a creator or he accepted it, as it was a relative system for living without oppressing others.its not a religion basically.
    later followers started building statues following the hindu system of 33 million gods and confused the message of the prince.
    Islam is basically a way of life: all dimensions. what you say Jihad, is a government or person taking millitary action to defend or attack. the western world wants to make jihadist a bad word, why? because they can create two kinds of muslims moderate and jihadist. see devide and rule. say u are a iraqi, and u have two children. they are sleeping. american planes bomb the house, your children are dead. question: will you say America is right, or take up arms.people have no wisdom only infomation from cnn/bbc, so parrot like they vomit the words.
    most Jihadist are upright people, who are defending there country/religion and family. moderates are people who are sell outs to western countries, not to be trusted even with a penny.

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      What is Nirvana?
      I wish I could give you an answer, I am asking the same questions!

      Read Physics Jehan, We are made of star dust! That gives few answers.

      Shia and Sunni is the curse of Muslim!
      I agree with you, real Muslims are very disciplined than some Sinhalse Buddhists, That does not make them intelligent.
      Jewish people also believe in creators. But how developed they are and Muslims in Arab?

      Take everything with a pinch of salt.

      The world has been a bad place even before USA!

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        srinath.gunaratnam

        “Shia and Sunni is the curse of Muslim!”

        So are Sinhala/Buddhists.

        “What is Nirvana?”

        There are three different views on Nirvana, the views in Sanatana Dharma, Buddhist Dhamma and Jain’s world view.

        It does not mean man/woman without clothes.

        It is too complicated for you. So why don’t you just forget it?

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    so u believe something you cant even understand, dumb and dumber.

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    Lots of Tits for Tat, Tats for Tit, yes interesting. But let us stick to the core issue. Does MMDA needs any amendments? My view is YES. There are certain clauses in the current MMDA which is not in keeping with the Principles of Islam. The MMDA is heavily loaded in favour of the Males. It is time we strike a balance in keeping with the principles of Islam.
    As for the Quazies we need a overhaul change.The system is heavily abused by lay Quazies.

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    1. The demand that the bride also must be allowed to sign, the bride can then directly consent to her marriage

    Usuf’s argument doesn’t hold water. Under the MMDA, Wali is needed irrespective of the qualification or age of the girl. She can be a lawyer, accountant, a graduate, an administrative officer but she will need a wali . The boy can be below 18, not qualified, not even educated needs a wali. Is this fair or reasonable. Nowadays you find more qualified girls than boys. Brides in the Hanafi sect need not have a wali. They are also Muslims. Why not allow this for Shafi sect.

    Wali has to be a male, may be even the younger brother of the bride. The mother has brought her to the world and cared for her but she has no right to be the guardian!!!Does this sound rational?

    All the methods available for the bride to protest or to complain against the guardian is too cumbersome for the girl to do that when there is a simple solution. Isnt it much easier to place her signature in the registration form itself.
    Signature is the best available proof and accepted form of consent for any contract including a marriage contract

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      Correction to the above

      he can be a lawyer, accountant, a graduate, an administrative officer but she will need a wali . The boy can be below 18, not qualified, not even educated does not need a wali. Is this fair or reasonable

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    No legal Representation
    I agree with Mr. Usuf that legal representation will delay cases as the lawyers would like dates and postponements etc. But there is no one to safeguard the rights of both parties, particularly the woman in the Quazi courts where Muslim law supports males. Quazies are not trained and nor have they got any qualifications to practice their profession. Some of them are not even knowledgeable in Islamic law . There integrity is questionable. Therefore representation must be allowed. Representative need not necessarily be a lawyer to represent the parties . If the complainant or the opponent wish to, they should be able to get someone to represent them. This representative can be a woman or man.

    Women as Registrars

    Mr. Usuf, Protection is also a form of control!!! I don’t think women registrars need protection, they can manage their affairs, if you allow them.
    Women are capable of performing this function when they can do so many things in the male environment. Males and females can be present at the time of the registration of the marriage.

    Female Quazies.

    Why not??
    Mr. Usuf is bringing ridiculous arguments to support his case not to appoint female quazies. Can quazi courts be more hostile than our courts including magistrate courts where there are women magistrates and lawyers appearing for cases?
    Maternity leave is recognized by the laws applicable in Sri Lanka. Pregnancy is not a disqualification for any job. Any person male or female can fall ill. There are very frail and sick quazies working today, as there is no retiring age. Most of them apply to quazies once they retire. So their health can’t be that good.
    Most of the Muslims know about our quazies, their, lack of knowledge,atrocious behavior and attitude. So I am not going to dwell in that area.
    There are female judges in our courts performing similar functions as male judges. There are Muslim women in senior positions in the judiciary. Female Quazies are appointed in Malaysia and Indonesia. These two are Muslim majority countries. There is nothing to prevent a woman being appointed a quazi.
    Mr. Usuf talks about “super safeguards” for women when he discusses Wali, but has he ever thought of “Super dangers” that a woman encounters in Muslim Marriages and Divorce Act relating to fash and talak divorce or polygamy.

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