18 November, 2019

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Political Wheeler Dealing & MMDA – Travesty Of Justice

By Abdul C Raashad –

A decade ago then Minister appointed a committee to examine the existing provisions in regard to Muslim Marriage and Divorce Act (MMDA) and to suggest/ recommend the amendments to the same. The normal practice is to invite all the stake holders and to obtain their input and then to formulate the recommendation and to submit a single report to the Minister. Nevertheless, it appears that the committee deliberated within the committee as there was disagreement in multiple areas. It eventually submitted two separate reports, which has caused serious concerns and turmoil within the committee.

The current Minister of Justice having accepted both reports was placed in a dilemma as to how to resolve the differences in the report. Had the Minister been capable of making a determination as to how the amendments to be made to MMDA, there was no reason for the Minister to await for a report for a decade. The Minister had an option to send both reports back to the committee and to require the committee to submit only one report. The Minister also had the option to appoint a new committee to go into the disputed areas and to recommend the manner in which those differences are to be reconciled. At this point of time acceding to the request made by ACJU the Minister referred the matters in issue to the members of the Muslim Parliamentarians.  

The committee could have averted this scenario had it acceded to the requests made to seek the input of the internationally renowned scholars. It is significant to mention that the well known scholar Dr. Yasir Qadir when approachedhad  agreed to assist the committee but for the reasons best known to the committee, his services were not obtained. In any event, if the committee had thought fit that some other scholars could have made a contribution it could have done so.

According to the information available the disputed areas seemingly are as follows:-

1. Mandatory Registration of Marriage

2. Minimum age of marriage fixed at the age of 18

3. Female Quazis and requiring Quazis to be Qualified Lawyers

According to some other sources in respect of other areas such as (iv) requiring the bride to place the signature in the Marriage Certificate (v) the procedure related to the practice of having more than one wife and areas of this nature serious difference are existing between the stake holders.

The upshot is with regard to the the actual place of a Muslim lady in Islam there seem to be disagreement between the majority of male members and the lady members of the committee.

In this writing an attempt is made to identify the role of the Muslim lady described by Prophet Muhammad (Sal).  

In the final sermon of the Prophet Muhammad (peace be upon him) in Dhual – Haj 9th day 10AH (6th March 632) is absolutely relevant. In the early part of the short sermon, Prophet Muhammad (Sal) stated that:

Quote:

“O People, it is true that you have certain rights with regard to your women, but they also have rights over you. Remember that you have taken them as your wives only under a trust from God with his permission.  Do treat your woman well and be kind to them for they are your partners and committed helpers.”

Unquote:

In Qur’an Surah 2 verse 223 Surah Baqarah it is stated as follows”-

Your wives are a tilth for you” so go to your tilth” and further he say “And fear Allah, and know that you are to meet Him” therefore emphasis that every man will have to be fair and reasonable to their wives”.

There are several Qur’anic verses emphasizing this principle.  

It is also significant that as per the orders of Allah, Prophet Ibrahim left his wife Hajarah with his infant child Ismail in a desert where no signs of presence of existence of human beings placing trust in Allah.  Today, this solemn place is visited by Muslims around the world to perform their Haj and Umrah. The well that produced uninterrupted water is referred to as Zam-Zam water.  When the infant Ismail started kicking the ground, Allah ordered the water to gush and it is significant that when Hajarah ordered to stop and stated Zam-Zam, Allah ordered the water to stop.  This is a classic incident Allah recognized the role of the woman.

The relationship of a husband and wife is lucidly expressed in Surah 9 verse 71 as “The men and women, are (helpers, supporters, friends, protectors) of one another”, hence, it could be concluded as a device order to treat a wife in equal status.

Furthermore, today during the speeches of the preaches they quote and rely on the Hadiths narrated by one of the Prophet Muhammad’s (sal) wife Ayeshah.  It is important to remember that in regard to the validity of the ablution Imams have expressed their views based on the narration of Ayeshah.  

In another Hadith emphasizing the importance between the Father and Mother of a Child, the Prophet (sal) stated first, second and third the Mother then the Father.

There are plenty of material to support the proposition that Islam has recognized the important role a Muslim lady has to play in the society.

It is noteworthy to mention that in many Muslim majority countries the Muslim ladies have been given their due place as opposed to Sri Lanka. It is evident that they have been appointed as Quazies and judicial adjudicators.  Is it our position that those appointments are unislamic?

One of the areas the difference exists is in relation to the minimum age of Marriage. Justice Tilakawardane and Justice Amaratunga in the Gunarathnam vs Registrar General’s case have arrive at a decision that unless both parties to a marriage have completed 18 years of age, the marriage cannot be registered. It is observed that in terms of section 23 of MMDA a marriage contracted by a Muslim girl who has not attended the age of 12 years shall not be registered unless the Quazi for the area in which the girl resides has after inquiry as he may deem necessary authorize the registration of the marriage. The stake holders want age 12 to be raised to 18.  he people who opposed rely on an argument that the marriage between Prophet and Ayeshah took place when Ayeshah was less than 18. The fact that they overlook is that a special permission was granted to only Prophet.  Since, Muslim believe the last Prophet is Muhammad (sal) and thereafter there is no Prophet established the fact this special privilege not bestowed on the others. It is also notable that Prophet firstly got married to a widow of 40 years. Therefore, one cannot argue that Muslim males should get married in this manner. It is the belief of Muslims that only in respect of performance of amal (worship) it is sunnah to follow not in respect of the other areas of his life. The manner he travels, the manner he live with less facilities and the manner he dressed according to the climate of the country.

The registration of marriage applies to all citizens of the country. It is the understanding of the writer that none of the religion requires registration of marriage. Nevertheless, it is essential to register a marriage to ensure that the birth of the children would be also registered and to issue birth certificates to enable the children to pursue their education, to obtain National Identity Cards and Passports to travel. Since there is no religious obligation to register the marriage, requiring the Muslim bride to sign the register will not cause any religious impediment.  Marriage is a contract, and accordingly both parties are required to understand the terms and conditions of the marriage and to intentionally agree to abide by the terms and conditions by placing their respective signatures. Unfortunately, many marriages are taking place in Masjids without the presence of the Muslim brides only to hear that they got married.  This is a serious violation of the principles of Islam and their fundamental rights. This is one of the reasons for the difference of opinion between the couple because when both parties were present and the marriage is solemnized and registered it is a great opportunity to advice not only to the couple but also to the other members of both families how they should move forward to keep the marriage without any interruption if there are any teething problem.

It is very unfortunate that the committee failed to consider Surah Nisa (4) verse 35 in which it advices how the dispute arises between the couple to be amicably reconciled.  If both parties are made to place their signatures in the marriage certificate, it is easy to adjust their differences according to this verse.  It is important the Qur’an has spoken about Arbitration/ reconciliation process 1400 years ago but unfortunately it has been not embodied in the MMDA and also in the recommendation also this issue has not been addressed. In so far Islam is concerned divorce is unacceptable without a valid reason. Today there are several divorces owing to not adhering to this Qur’anic verse. The law should be amended such a way that any difference between the married parties will have to be necessary endeavoured to be resolved according to this verse.  No one should be permitted to commence divorce proceedings in Quazi court without report from the Arbitrators functioning under Surah 4 verse 35. The arbitrators should engage in extensive discussion to reconcile the marriage. If eventually they consider that it is not possible to reconcile then they should submit an extensive report in which they should setout the areas in which both parties are not able to resolve and the Quazi will be able to accept the application only if a report of the Arbitrators is attached to the application. Quazi in the first place should discuss with the arbitrators and then he could hear the sides of the parties and endeavour to resolve in terms of section 47 (i)(h) of the MMDA. This is the area in which the assistance of a female Quazi is required. There may be issues where the female member of the applicant may not be comfortable to share with a male Quazi and therefore serious consideration should be given to a female Quazi to sit with the male Quazi to ensure that the female is not psychologically affected that her side of the case is unheard and therefore that grave injustice has happened to her because by nature the Muslim girls have been brought up not to share their personal issues with men.  

Another area in which the legislature will have to looked into is the argument for a man to have more than one wife is based on the Surah 4 verse 3. According to experts the words of the Qur’an are interpreted, the historical background in the period that was revealed will have to be taken into consideration.

According to Ibn Katheer a narration of Ayeshah whilst explaining the background of this revelation states “In the pre-Islamic times, the legal guardian of a good-looking, well-positioned orphan girl would marry her for her beauty and wealth but not give her a complete dowry (mahr), as he used to give to his other wives. This was a gross injustice.  So, Allah banned that, and said that if one could not be just and fair to orphan girls under one’s guardianship, one should not marry them at all but marry someone else. 

In any event, a careful reading of the verse clearly emphasizes the responsibility of the man to exercise reasonableness equality and fairness.

The recommendation made to regularize the 2nd, 3rd and 4th marriages is very much keeping in place with the principles of Islam. Whoever wishes to enter into contract of marriage 2nd, 3rd and 4th time will be required to serve formal notice to the 1st wife to enable the authority to ascertain as to whether or the applicant will be able to financially, morally, emotionally and physically able to support not only the 1st wife but also the children of the 1st wife and the additional wives. The argument that the husband will treat equally by providing basic necessities seem contrary to Islam.  In particular, the children best interest of the first wife essential needed to be taken into consideration atleast until they complete their education upto ordinary level the children emotional aspects will have to be looked into to ensure that those children will not be psychologically affected owing to the father’s decision to have a new family.

The upshot is not only the economic sense but also the emotional psychological impact of the 1st wife and children will have to be evaluated carefully before the permission is granted.  If not the system will facilitate unfairness, tyranny, suppression, prejudice, bigotry to many to the satisfaction of one person’s happiness.  

It is conspicuous and pronouncement by divine direction in Surah 17 verse 24 for the Children to pray for their parents as follows:-

“My Lord! Bestow on my parents, Your Mercy as they did bring me up when I was young”.  Therefore, it is evidence of affirmation that children when they pray for their parents as aforesaid it is extremely relevant and pertinent to be mindful that any injustice caused to the children will result in serious consequences.

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Latest comments

  • 1
    1

    “Be fair and kind” is not LAW. It is Ethics. The LAW is:
    “YOU SHALL NOT DO THAT, ELSE FACE THE FOLLOWING PENALTY (in this world)”
    What happens to the offender in the next world is out of the scope of law.

    Soma

    • 4
      1

      For gods sake, why are these Muslims so obsessed about their women, their marriages and dress??
      Hundreds of articles on this MMDA rather than the Easter carnage that was caused by the corruption among Muslim politicians who are funded by Saudi and land grabbing for US military bases project and causing Buddhist extremists to attack innocent Muslims, to cause religious violence so US can set up military bases in Muslim areas in Mannar and Eastern Province?!

      After the Easter carnage in SL surely the Muslims should be focusing on getting rid of their corrupt politicians who are in the pay and play book of Saudi and US Special Operations Forces (SOF) – Bathudeen, HIzbullah and Faizer Musaphar are the Cats paw of the US project to wreak multi-religious relations and peace in Sri Lanka and divide and distract in order to set up military bases…
      Why are the majority of Muslims so backwards looking and obsessed with keeping their women opressed???!

      • 3
        1

        Abdul C Raashad ,

        “For gods sake, why are these Muslims so obsessed about their women, their marriages and dress?” Says. Laxmi..

        Because they are Chattel?

        What about the USA? Are they in the 7th Century?

        https://www.msn.com/en-us/news/us/end-child-marriage-in-the-us-you-might-be-surprised-whos-opposed/ar-AAGZ64f?ocid=spartandhp

        End child marriage in the U.S.? You might…

        End child marriage in the U.S.? You might be surprised who’s opposed. Not ACJU

        Republican lawmakers, who control the Legislature, opposed it, including state Rep. Bryan Zollinger, who said it “went too far.”

        “Obviously, I’m against child marriage,” the GOP lawmaker told NBC News. “But basically marriage is a contract between people that shouldn’t require government permission.”

        Even as more states take action to end child marriage, concerns about government overreach, along with scant data about the extent of the problem, have driven skepticism to reform across the country, sometimes creating unlikely alliances between conservative politicians and groups often on the other side, including the ACLU and Planned Parenthood.

        In California and Louisiana, opponents of change have argued that raising the minimum marriage age is an ineffective solution since other child welfare laws already can prevent young girls from being exploited.And other states, such as Massachusetts, have raised doubts about the extent of the problem, even as experts note that survivors are often reluctant to come forward.
        Idaho has the highest rate of child marriages in the U.S., according to a national report from Unchained at Last, an organization dedicated to ending the practice in the U.S.

    • 1
      1

      Oh dear Soma!

      A big slip it seems. Have you ever heard about Wendsbury theory of “reasonableness”, which is based upon “fair and reasonable” . The word ” kind” or kindness should be rooted from fairness. If any law is not fair, then it’s not a human law for human but jungle law for non humans. Ethics have big roll to play in law. Your dear word “Penalty” is imposed when the doer is not far in dealing as per law.

      • 0
        0

        Dear Ahmad N.
        Can’t we be satisfied that the offender will anyway face the tune when he/she meets the Creater?

        Soma

  • 4
    0

    Abdul C Raashad ,

    RE: Political Wheeler Dealing & MMDA – Travesty Of Justice

    “It is noteworthy to mention that in many Muslim majority countries the Muslim ladies have been given their due place as opposed to Sri Lanka. It is evident that they have been appointed as Quazies and judicial adjudicators. Is it our position that those appointments are unislamic?”

    In Sri Lanka, ACJU still considers the Muslim women and girls to be chattel, things owned by men, as interpreted by them. They cite the Quran and the Hadith.,

    ACJU said that MMDA is perfect, indeed perfect for men.

    The only problem is that it contradicts the Sri Lankan constitutional rights of the women, but it it all right for the Ulama and the Muslim Parliamentarians.

    When will the Muslims get to the Age of Reason and Enlightenment?

    • 3
      0

      A.
      Saudi Arabia “stupid” is the culprit.
      They export “them” desert culture and influence poor SL women working there; as well the ACJU and the Muslim politicians in SL.

      • 3
        0

        Sarrij,

        So, the Saudi Wahhabi-Salafism is making the Sri Lankan Muslims, the Ulama, and the Parliamentarians “stupid”? According to the Hadith of Najd (just Google), Bukhari and Muslim says that the Wahhabis follow the Horn of the Satan.

        Wahhabi Saudi graduates have the lowest GMAT scores in the world. Indeed Wahhabism makes them stupid. For the Wahhabis, stupidity is a virtue.

        https://humanvarieties.org/2014/02/02/quick-post-lvs-national-iqs-predicts-gmat-scores-across-173-nations/

        • 2
          0

          Rather than focusing on the ‘source’ of the stupidity of Muslims, we should focus on the degree of stupidity of the community.

          Note however, that this stupidity is demonstrated only in the case of religion. When it comes to other socio-economic matters, our perceived skills in shrewd and astute thinking have earned us the derogatory sobriquet ‘Thambiya Kattai’.

          Over the past 100 years, the Muslims have gradually conceded the right to think for themselves regarding religious matters to the Ulemas. This has stultified our thinking process regarding religious matters and has resulted in our community depending wholly on the ulemas for this purpose. The community has reached a stage where they accept anything and everything stated by the ulema without a murmur. They dare not question the wise ulema, who are intent on maintaining a tight grip on the community by promoting the idea that they and only they are competent and qualified to think, analyse and interpret matters pertaining to Islam in Sri Lanka.

          The ACJU issued a fatwa to the effect that it is obligatory for all Muslim females to wear the niqab in public. The head of the ACJU reiterated this fatwa at a Jummah sermon a few years ago.

          This fatwa flies in the face of the following sahih (authentic) hadith :

          “He said: O Asma’, when a woman reaches the age of menstruation, it does not suit her that she displays her parts of body except this and this, and he pointed to his FACE and hands.” (Sunan Abi Dawud 4104).

          And also the sahih hadith Bukhari 6228, both of which indicate clearly that the Holy Prophet did not insist on full face cover for females.

          Yet none of the Muslims have dared to challenge this blatant distortion of the Prophetic traditions by the ACJU.

          • 1
            0

            ekelbroom

            “Note however, that this stupidity is demonstrated only in the case of religion”

            Because they take all what the ignorant and stupid Ulama say as the truth.

            The ACJU says that MMDA is perfect. The stupid Muslims accept that. If they are not stupid, they would not accept that. So, women and girls are still; chattel.

            That is why the Muslims need to get to the Age of Reason and Enlightenment,.

            They are still stuck in the 7th Century knowledge and ignorance.

            So , the Earth is spread out like a carpet, and the Sun goes around the Earth and sets in muddy murky waters.

            Is stupidity a virtue for the Ulama and the Muslims w ho follow them.

            What about the Scientific Method? Does not apply to religion and Islam?

            • 0
              0

              Brother Amarasiri

              The role of a shepherd is to guide and direct his flock of sheep in a particular direction depending on the purpose (to seek food, shelter, etc.). Over a period of time, the sheep grow to depend on the guidance of the shepherd and obey his commands almost instinctively, leading to the development of a symbiotic relationship between the shepherd and the sheep. Under these conditions the minds of the sheep will never evolve to a point where they will want to think and are indeed capable of thinking for themselves. They have effectively delegated the responsibility of thinking to an external source in which they have reposed their confidence and trust.

              Replace the term ‘shepherd’ with the term ‘ulema’. Replace the term ‘sheep’ with the term ‘muslims’ and voila! You now have an accurate description of the state of affairs that exist between the two groups today.

              What factors could therefore motivate the muslims to get to the age of reason and enlightenment of their own volition when they perceive the ulema doing such a great job of it on behalf of the community ?

              Any argument has only three purposes. To explain, to justify or to persuade. As guides and advisors to the community, the ulema would have been called upon to explain, justify or persuade the ummah that their advice is compatible with the tenets of Islam.

              Instead of which the ulema, in keeping with their self-image as enforcers, are hell-bent on imposing their thinking on the community. What else can you expect from a group of sclerotic scholars who believe that they alone will be held responsible for any religious lapses of the ummah on the Day of Judgement.

          • 1
            0

            E.
            Makes sense, and the local ulemas are all fake to quote the “Donald”.

    • 0
      0

      When will a Camel go through the needle eye?

      Soma

  • 1
    0

    ekelbroom

    “Note however, that this stupidity is demonstrated only in the case of religion”

    Because they take all what the ignorant and stupid Ulama say as the truth, without subjecting to reason, observations and data.

    The ACJU says that MMDA is perfect. The stupid Muslims accept that. If they are not stupid, they would not accept that. So, women and girls are still; chattel.

    That is why the Muslims need to get to the Age of Reason and Enlightenment. Thesy missed out 1,000 years ago. Read about Ibn Rushd and his works, and as to how the stupid Ulama ganged up on him to maintain their hegemony. Para-Sinhala “Buddhist” monks are doing the same thing: self -preservation.

    They are still stuck in the 7th Century knowledge and ignorance of new knowledge.

    https://www.alaraby.co.uk/english/artsandculture/2015/4/9/ibn-rushd-in-his-darkest-hour

    In all the struggles endured by free thinkers in which they were either killed or exiled, we find the same elements of decline no matter the time or place. This includes the time and place of the struggle of Abul Walid Muhammad Ibn Ahmad Ibn Rushd (1126 -1198), or Averroes in the Latinised form of his name.

    So , the Earth is spread out like a carpet, and the Sun goes around the Earth and sets in muddy murky waters.

    Is stupidity a virtue for the Ulama and the Muslims w ho follow them.

    What about the Scientific Method? Does not apply to religion and Islam? Why?

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