28 October, 2021

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Why We Need To Keep Muslim Personal Law With The Much Needed Reforms

By Asiff Hussein

Asiff Hussein

The Muslims of our country have always felt they are very much part of our nation. The multi-ethnic, multi-cultural and multi-religious environment of Sri Lanka with its tradition of tolerance and understanding of the other has contributed to this inclusive attitude in no mean measure.

As such it is sad to see sinister attempts being made to deprive the country’s Muslims of their personal laws which govern civil matters like marriage, divorce and inheritance. Other communities like the upcountry Sinhalese and Jaffna Tamils also have their customary laws in the form of Kandyan Law and Thesavalamai, but strangely nothing is spoken about repealing or radically reforming these legal systems.

These customary laws as much as Muslim Personal Law (MPL) have co-existed in the country for centuries without creating any division or social discord in the least. Personal laws, like language and other cultural markers, are very much part of all these communities, adding so much vigour and vibrancy under that time-tested adage “Unity in Diversity” that forms the very lifeblood of our beautiful nation with all its wonderful variety and has stood us in good stead all these years. These customary laws, as much as Muslim personal law, do not infringe on the rights of others. They never have and never will, which is why they have survived this far.

However, unlike these traditional usages, MPL has an added dimension, because it has a religious foundation. It is grounded in the Islamic faith and reflects religious obligations to one’s family among other things. The fact that even our colonial rulers recognized the right to our personal laws without any obligation or commitment to do so, speaks much of the importance it holds in Muslim hearts. To repeal it or radically transform it so that its entire purpose is lost will only serve to isolate and marginalize the country’s Muslims, with its many social and political implications. After all, no Muslim would be willing to forgive or forget those who deprived them of this much cherished personal law that means so much to them. Any party or government that does so, will have to face severe political repercussions because it is bound to antagonize every single segment of those who profess the Islamic faith. Fools rush where angels fear to tread.

This is not to say that our Personal Law, as reflected in the Muslim Marriage and Divorce Act (MMDA) does not need reforms. It certainly does. This is exactly why the Justice Saleem Marsoof Committee was constituted- to come up with a final solution that would particularly address the rights and concerns of women. There is certainly a need to amend the MMDA such as requiring the written consent of the bride, recognising her legal capacity to marry at her own discretion by appointing an agent in lieu of agnate guardian if she so chooses and enter into prenuptial contracts with her intended husband. Any reasonable Muslim would agree to such changes, because they are very much part of the Islamic faith as well.

However, there have been some very unsavoury developments of late that threaten to undermine the whole objective and purpose of MPL, which is to safeguard the institution of marriage and the family, which as we all know is the very foundation of a healthy society. Two such changes that were recently included in a cabinet decision in a very arbitrary manner and in total disregard to the sentiments of the community was to abolish polygamy and Quazi courts that adjudicate in the matter of Muslim marriages and divorces. These two proposals were never part of the JSM recommendations and it has now come to a state where even those who dearly wanted reforms are very much against these proposed changes, and with good reason.

Quazi courts are not law courts as they are sometimes made out to be, but perhaps may be better described as quasi judicial bodies that adjudicate on Muslim family law with a view to effect reconciliation between the parties. This is why it has been proposed to rename these as Muslim Family Conciliate. Their existence is not only important to the Muslim community due to religious and sentimental reasons, but also because they do not involve a costly and lengthy litigation process in matters like divorce unlike conventional law courts. It is in fact, a very cost effective way to settle family disputes.

As for polygamy, this is something that has been part of Muslim law for centuries and is in fact embedded in the Islamic faith. It must however be stated that this is not an arbitrary right given to a Muslim male. It comes with many conditions attached including equal treatment of all co-wives. It could be best described as a concession to human nature, a concession that seeks to eliminate vices so common in our society today such as prostitution, mistresses and brothels along with their ill effects such as venereal diseases and destruction of the family.

It could also be viewed as a social mechanism to preserve the family since males who have recourse to it, would be less likely to divorce their first wives for reasons best known to them, especially those that affect their sex lives such as frigidity or desire to have offspring, that is if the wife proves to be infertile.

Furthermore, it offers a very viable solution to care for less fortunate women such as widows, divorcees, handicapped or economically unprivileged women who also have basic human needs as well as require financial support. A male who has the option of polygamy open to him, would be more likely to marry such an unfortunate woman, even if she were of a lower social background than his.

It is only those who live in a fantasy world blinded to reality and the social realities others face who call for a ban on polygamy. One often finds that those who hold these views and make loud and bold statements against polygamy actually live a very comfortable and affluent life and care nothing or little to understand the harsh realities of life which to many is a daily struggle, a struggle that impacts mostly on women with dependents to take care of.

We need to understand that the Muslim community is one that takes care of family and is religiously obliged to do so. This is why you hardly find elders homes or orphanages within the community. Aged parents are taken in and lovingly cared for by their children, while orphans are adopted and taken care of by other kinsfolk. To deprive destitute women of the only handhold that holds out some form of relief to them within a socially acceptable and respectable arrangement that meets their most basic needs is unfair to say the least.

It is not just a sin, it is a crime.

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Latest comments

  • 4
    0

    An interesting article, with the writer’s opinions clearly elucidated. I do not know if he speaks for all Muslims in Sri Lanka. In the Islamic world, there are varying levels of the faith incorporated in national governance. For example, there is a wide disparity between what is stipulated in Saudi Arabia and the UAE or Malaysia in terms of Islamic practice or law. Sri Lanka is not a Muslim country. Neither is it a Sinhala Buddhist country as some would like us to believe. It is a multi-ethnic multicultural state. Minority rights must be respected and upheld. However, in the matter of progression in civilisation, some aspects of laws developed 1400 years earlier would seem redundant especially in the context of children’s rights to be afforded a childhood and not be “married” for the purpose of providing sex to an older man. She must first become mature before an informed consent can be expected. Marrying more than one woman can be justified if the intended partner is proven to require the support of a man that she would be unlikely to receive otherwise.

  • 5
    8

    Tamils and Muslims who make hue and cry saying that majority Sinhalayo do not give equal rights to minorities want to have more than equal rights.
    —-
    ‘One Country One Law’
    Scrap Kandyan Law, Thesawalamei and Muslim Marriage and Divorce Law.
    By allowing minorities to keep these separate laws, the Government is discriminating the Majority.

    • 2
      2

      Not just Tamils and Muslim but Buddhists too.

      Buddhist scrips are discriminatory and bigotry. Those hate verses must be banned in Sorry Lanka.

      These include demeaning description of women and sexual intercourse with women. Buddha says it is better to do it to the mouth of a cobra than a woman.

      Buddha also says women are cursed by 5 fold additional sufferings and are not worthy to attain Buddhahood! What bunkum! Buddhist nuns have lesser rights than males according to Buddha.

      Christian church laws have similar discrimination against nuns.

      These barbaric and discriminatory hate verses must be erased too.

      One law for all irrespective of gender, ethnicity, religion, caste, etc.

  • 4
    4

    If Islam is not discriminatory, why not afford the women equal rights by permitting polygamy in favour of women on the premises that the woman will treat all her husbands equally. Why quarrel on a minor matter when a solution is available?

  • 1
    2

    One law for all.

    There cannot be different laws for different people based on ethnicity, religion, caste, etc.

    Just one law for everyone.

  • 4
    1

    I think laws are part of our social contract and must keep changing with the times.

    Something that was said 2000 years ago to an uneducated desert tribe cannot be true of all people for all time.

    True, often the recent covert is the most fanatical, like these Indian body types (India, Pakistan ,Sri Lanka..)who were converted by Muslim traders in the past few centuries.

    But they must ask where is our bread buttered ?

    Will any Muslim like to migrate to Saudi Arabia ? They all go very happily to USA, UK and Australia.

    They may say one thing, but their actions say something very different. All humans like freedom .

    You can argue bullshit, but when it comes to your personal benefit you chose the correct path .

  • 2
    0

    The Muslim Personal Law, while not infringing on the rights of non-Muslims, was increasingly being felt as infringing on the rights of Muslim females. This has been the reason for attempts by the progressive sections of the Community to amend the MMDA.
    .
    To claim that “To repeal it or radically transform it so that its entire purpose is lost will only serve to isolate and marginalize the country’s Muslims, with its many social and political implications” does not make any sense. The Muslims have to date done an excellent job of ‘isolating and marginalizing’ themselves as a community under the existing MMDL. Thanks to their sense of exclusivity and entitlement, they contributed to the creation of space for the emergence of anti-Muslim groups.
    .
    And what exactly are these ‘severe political repercussions’ that ‘Any party or government that amends the MMDA will have to face’ ? To the average Muslim, will the consequences of amending the MMDA be ‘more severe’ than the risks he/she had to face to life, limb and existence during the surges of anti-Muslim violence in the past decade ? Or, is the Muslim Community issuing threats to the GOSL ?

  • 2
    1

    Polygamy ” … could be best described as a concession to human nature, a concession that seeks to eliminate vices so common in our society today …” The Writer (AH) should indicate the extent to which vices such as “prostitution, mistresses and brothels along with their ill effects such as venereal diseases and destruction of the family” have been obviated by the practice of Polygamy among the Muslims to date instead of making such sweeping demagogic statements. Are such ‘ill-effects’ totally absent in Muslim Countries ? Is AH attempting to rationalize the practice of polygamy ?
    .
    AH believes that a man will be driven to polygamy if his wife has issues of a sexual nature and further that he will for the purpose of selecting a second wife focus on the “less fortunate women such as widows, divorcees, handicapped or economically unprivileged women who also have basic human needs as well as require financial support”. The question is : whose needs are being met in the second marriage ? The man’s need for progeny or the ‘less fortunate’ woman’s need for stability ?
    .
    Or, will the final decision of the man be based on his raging carnal desire, leading to a third and a fourth wife ?

  • 2
    1

    Brother AH,
    .
    “It is not just a sin, it is a crime”
    Indeed it will be just that.
    Especially if the more educated, enlightened, responsible members of our Community fail to use their Ilm (knowledge) and aql (intelligence) to dispense adl (justice) to the discriminated female members of our community by making far-reaching amendments to the MMDL.
    .
    If the GOSL decides to abolish Polygamy and the Quazi Courts, so be it.
    It is not the end of the world for the Muslim Community.
    What cannot be cured, must be endured. Just like the Muslim citizens residing in Muslim-minority countries like the U.K

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