By Faizer Shaheid –
Faizer Shaheid
The Muslim Marriage and Divorce Act (MMDA) continues to stand as a stark anomaly in the legal landscape of Sri Lanka. Enacted as Act, No. 13 of 1951, it replaced the Muslim Marriage and Divorce Registration Ordinance, No. 27 of 1929 and is deeply rooted in the Code of Mohammedan Laws of 1806, which was a Dutch-era adaptation by the British of regulations from Batavia (present day Jakarta, Indonesia).
For over seven decades, this Legislation has remained largely static, insulated from the progressive legal developments that have modernised the rest of the country’s judicial framework. The history of the MMDA is a timeline of systematic resistance to change, where four major Committees since the 1970s – namely the Dr. H.M.Z. Farouque Committee (1970), the Dr. A.M.M. Shahabdeen Committee (1990), the President’s Counsel (PC) and Justice (J.) Dr. Saleem Marsoof Committee (2009), and the most recent advisory effort (the Shabry Haleemdeen Committee [2020]) – have all grappled with a Law that prioritises patriarchal traditions over the Constitutional rights of individual citizens.
The Constitutional shield
The primary contention surrounding the MMDA is its direct conflict with the Fundamental Rights (FRs) Chapter of the Constitution of Sri Lanka. Articles 12(1) and 12(2) explicitly guarantee that all citizens are equal before the law and free from discrimination on the grounds of religion or sex. However, these rights are effectively nullified by Article 16(1). This Clause stipulates that all written and unwritten laws that existed prior to the 1978 Constitution shall remain valid and operative notwithstanding any inconsistency with FRs.
This Constitutional loophole has rendered the MMDA immune to judicial review, effectively creating a parallel legal system where Muslim women are denied the protections afforded to every other Sri Lankan. The impact of Article 16(1) has been a recurring theme in Parliamentary debates, most notably during the 2021 discussions on the “One Country, One Law” concept, where it was argued that the Clause created second-class citizens by shielding discriminatory personal laws from the scrutiny of the Supreme Court (SC). While the Court has occasionally lamented this limitation, it remains bound by the Constitutional mandate to uphold pre-existing laws, leaving millions of women without a legal remedy for State-sanctioned discrimination.
The Dr. Marsoof J. Committee
After nearly 40 years of stagnation, the Dr. Marsoof PC J. Committee was appointed in 2009 to propose comprehensive revisions. It took nearly a decade for the Committee to release its report in 2018, only to reveal a deep and paralysing divide within the Muslim community’s leadership. The Committee eventually submitted a split report with a majority report favouring progressive reforms, such as setting the minimum age of marriage at 18 and allowing women to serve as Quazis (Judges under the MMDA). A dissenting minority report by conservative elements, including representatives from the All Ceylon Jamiyyathul Ulama (ACJU), was also presented.
At the time, Faiszer Musthapha PC, then a Minister, was central to the deliberations, yet the Government shelved the exhaustive report. His failure to champion these reforms while in power closed the window for justice for those affected by the MMDA.
Recently, Justice and National Integration Minister, attorney Harshana Nanayakkara called for fresh proposals, but, this has been overshadowed by Musthapha’s sudden re-emergence with a Private Member’s Motion/Bill for reform. This move appears to be a publicity stunt intended to score political points and pre-empt the legitimate legislative process initiated by Nanayakkara.
It appears that former obstructionists are effectively bypassing established Parliamentary protocols for genuine stakeholder consultation. The advisory Committee under Nanayakkara is currently considering critical areas such as raising the minimum age of marriage to 18 years, mandatory marriage registration and the review of the Quazi system.
Institutionalised misogyny and the silent struggle
The repeated failure to amend the Law is the result of persistent interference by certain religious misogynists and conservative Muslim leaders who have consistently blocked any change that would empower women. Under the MMDA, Muslim women are generally silenced and subordinated by a system designed to favour male authority. The Law grants men superior privileges, most notably the unilateral right to divorce through the “Talak/Talaq” (repudiation – divorce initiated by the husband) process without assigning cause ((in Islamic law [Sharia], divorce effected by the husband’s enunciation of the word ‘talaq’, constituting a formal repudiation of his wife).
In contrast, a woman seeking a “Fasah/Fasakh” divorce (fault – divorce initiated by the wife) must undergo a gruelling process to prove matrimonial fault before a male Quazi. Furthermore, the MMDA is the only Law in the country that prevents women from serving in judicial or administrative roles within its own framework. Women are barred from being Quazis, marriage registrars, or jurors. Even the act of marriage itself reflects this subordination, as the bride’s signature is not required on the marriage register; instead, a male “Wali” (male guardian) signs on her behalf.
The MMDA is often mischaracterised as pure Sharia, yet, many of its provisions are actually colonial relics or cultural transplants that contradict authentic Islamic jurisprudence (Fiqh). For instance, the practice of Kaikuli (dowry paid by the bride to the groom) is a South Asian custom that undermines the Quranic requirement of Mahr (a gift to the bride), while the mandatory “Wali” requirement for adult women ignores the Hanafi school’s (Sunni school of jurisprudence) recognition of female autonomy.
Furthermore, the exclusion of women from judicial roles and the 12-year-old marriage loophole are based on conservative cultural choices and Dutch-Batavian-British administrative codes, respectively, rather than scriptural mandates. Ultimately, by prioritising localised patriarchy over Islamic jurisprudence, the current system lacks the intellectual and procedural rigour required by classical Islamic judicial standards.
The failed Quazi Court system
The Quazi Court system is perhaps the most glaring example of institutional failure. Unlike the regular Judiciary, Quazis are not required to have formal legal qualifications, often being appointed based on religious standing or community influence. This lack of professionalism has led to widespread corruption and arbitrary decision-making that disproportionately affects vulnerable women.
Recent years have seen a surge in arrests by the Commission to Investigate Allegations of Bribery or Corruption (CIABOC) involving Quazi Judges. In April of last year (2025), the Quazi Judge of Gelioya was arrested for soliciting a bribe to expedite a divorce case. Similarly, in July 2025, a Quazi Judge and a clerk in Kaduruwela were arrested for also soliciting bribes to deliver a judgement in favour of a complainant. In another instance in July 2024, a Quazi Judge in Matale was caught soliciting money to process a maintenance claim. These cases are not isolated. They are symptoms of a system that operates with zero oversight, where justice can be sold to the highest bidder.
The legal exceptions
The MMDA is uniquely problematic because it grants exclusive rights based on religion that would otherwise constitute criminal offenses under the Sri Lankan law. Polygamy, which is the criminal offense of bigamy for any other citizen, is legally permitted for Muslim men. Furthermore, the Act provides a valid defence to what the rest of the country recognises as statutory rape.
Section 363(e) of the Penal Code defines sexual intercourse with a girl under 16 as rape. However, it contains a specific exception: “unless the woman is his wife who is over 12 years of age and is not judicially separated from the man”. Because the MMDA allows for the marriage of children as young as 12 (and even younger with a Quazi’s permission), it effectively legalises child marriage and protects perpetrators from criminal liability. This legal duality, established by the MMDA, being the only Law that grants exclusive rights to followers of a faith, creates a hierarchy of citizenship contrary to Article 9 which ensures equality for all religions.
The futility of amendment
While appreciated, any current attempt to merely amend the said Law is a futile exercise. Political lobbying is likely to stall it. Even if it manages to receive Cabinet approval, and gets published on the order paper, it will be subjected to judicial review. While the original 1951 Act is protected by Article 16(1), any new amendments introduced today would be subject to full scrutiny under the FR Chapter. Because these amendments would necessarily be read in conjunction with the discriminatory portions of the principal Act, the SC would very likely block them for continuing to violate Constitutional guarantees of equality.
The amendments themselves would not be protected by Article 16, meaning that the moment the Legislature attempts to modify the Act, the entire structure becomes vulnerable to judicial review. Partial reform is therefore legally improbable because the core of the MMDA is fundamentally incompatible with the Constitution. Attempting to patch a law that is built on a foundation of inequality will only lead to a perpetual cycle of litigation and failure.
History has proven that every effort to change the MMDA will be met with fierce resistance. Powerful religious and political forces have consistently demonstrated their ability to block reforms through political dialogue or by inciting community opposition. Whether through ACJU dissent or political manoeuvring to protect conservative bases, the lobby for patriarchal privilege has consistently blocked change. This systemic failure is too profound to negotiate. It must be excised.
The mandatory path of repeal
It is therefore mandatory that the Government must repeal the MMDA in its entirety to guarantee justice to those oppressed by this very biased law. The money, time, and effort invested in trying to revise or fix the law have been proven many times in the past to be a futile exercise. The only viable solution is for the State to come forward with a uniform law applicable to all on the subject of marriage, or to draft fresh Muslim personal law legislation which will also be compatible with Islamic jurisprudence and the human rights standards of the Constitution. The new Act must seek to repeal and replace the old and outdated MMDA.
The abolition of the MMDA is not merely a legal necessity; it is a moral imperative. In this day and age, the continued existence of a law that institutionalises discrimination, facilitates child marriage, and fosters corruption can no longer be justified.
