18 April, 2021

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Woman In Muslim Society & Contemporary Reformation Of Relating Laws

By Mishara Andradi and Jennifer Jansen –

A marriage is commonly accepted as a formal union and social and legal contract between two persons that unites their lives legally, economically, and emotionally. Under Sri Lankan common law (Roman Dutch Law) there are two types of marriages that are existing in the country, namely; customary marriages and statutory marriages with means registered marriages. As a result of the statutory marriage, the married couple gain a marriage registration certificate which does not issue in a customary marriage. Though common law does not mention anything about customary marriages, the courts have been accepted those kind of marriages as legal marriages too. Customary marriages directly connect with the private laws in Sri Lanka which are known as Kandyan Law, Thesawalamei Law, and Muslim Law. These multi ethnical groups celebrate their wedding ceremonies according to their culture.

Divorce is a cancellation of the marriage where it dissolute and change responsibilities and legal rights of the marriage. To divorce also above-mentioned private laws, have different grounds which are bit similar to the Sri Lankan common law, but we see a huge difference in Muslim Law apart from the other private laws in Sri Lanka when it comes to marriage and divorce. This article clearly focusses and clarify on what are the unjust provisions in Muslim Law regarding marriage and divorce comparing to other private laws and what are the amendments that government is hoping to on those unjust grounds.

Capacity to marriage under General Law and Private Laws of Sri Lanka

When a marriage happens the two individuals should be capable to have a legal marriage, therefore in the common law of Sri Lanka, there are 4 things to fulfil. Respectively minimum age, subsisting in prior marriage, consent, and prohibited degrees of marriage.

When comparing common law with the private laws of Sri Lanka under these grounds, General Law (Marriage Registration Ordinance No. 19 of 1909), Kandyan Law (Kandyan Marriage and Divorce Act No. 44 of 1952), and Thesawalamei Law state that the minimum age for marriage is 18 years. Also, the Marriage Registration Ordinance has stated in its section 15 that anybody who is below the age of 18 years cannot contract a marriage, but according to Muslim Law (Muslim Marriage and Divorce Act No. 13 of 1951) a minimum age is not mentioned. Also, the section 23 read with 47(1) J of the MMDA stated that if the Quazi gives its permission for the marriage of a girl who is below the age of 12 years, MMDA declared the consent to such marriages. Section 18 of MRO, section 6 of KMDA, and in Thesawalamei Law any man does not have the legal capacity to enter into a second marriage while the first marriage is subsisting. This is known as ‘Polygamy’, which is a punishable offence under penal code. If anybody is willing to contract another marriage, then he or she should get a legally accepted divorce from his or her prior spouse before contracting another marriage, but Muslim Law bears another law under this, as polygamy is not a punishable offence under Muslim Law. That means under Muslim Law, any man can contract 4 legal marriages but it is only applicable for Muslim-Muslim marriages. If an Islamic person registered his second marriage with a Sinhala or Tamil woman under the General Law, then it is under the offence of ‘Bigamy’ [Katchi Mohomad v. Benedict (1961)]. The other important aspect is consent. The marriage certificate requires the signature of both spouse (husband and wife), but unfortunately in Muslim Law, there is no space for the woman to sign in. Instead, the signature of her father or the guardian is required as a position titled Wali. Under the prohibited degrees to contract a marriage, the parties in a marriage should not be blood related under the section 16 of MRO, section 5 of KMDA, and section 80 of MMDA and counted as a punishable offence. Even the penal code states that a sexual intercourse between full or half blood or by adoption is prohibited by law and if anybody did that, they are punishable for 7-20 years of imprisonment. The other degree is marriage between – two persons, one party directly descended from other party, – a sister and a brother by the full blood or half blood, – a person and the daughter/son of his/her brother/ sister by the full blood or half or descendent, – a person and the daughter/son of his or her wife/ husband by another father or mother, – a person and the widow/widower of his/her son/ daughter, grandson/granddaughter, father/mother or grandfather/grandmother. On the other hand, the MMDA states under section 80 that a marriage between a male and his wife’s sister is prohibited when his wife is alive.

Divorce grounds under General Law and Private Laws in Sri Lanka

When both parties decide that they do not want to remain in the marriage any longer, they decide to terminate the marriage, filing a divorce. Generally, the divorce has two types as fault-based and marriage breakdown theory, but in Sri Lanka we use the fault-based type. The aggrieved party collect evidence and find a valid fault to claim the divorce. The fault could be either ‘Adultery’, ‘Sexual impotency’, or ‘Malicious desertion’. These faults may differ in Kandyan Law and Muslim law have. In Kandyan Law, 6 legal grounds are recognized as adultery by wife after marriage, adultery by husband coupled with gross cruelty, complete and continuous desertion by wife for 2years, inability to live happily together, mutual consent. In Muslim Law, husband can take judicial steps to get the divorce without his wife’s consent as well as he can pronounce the word ‘Talaq’ for 3 times and that will be the easiest way to dissolve the marriage. There is a form of divorce called ‘Fasakh’ which is initiated by the wife. In Sri Lanka there are different sectors of Muslim, and only Shafi’I, and Maliki recognise the Fasakh divorce but not Hanafi madhab (of Sunni sector) and Shia sector it as a women’s right. Section 28 of the MMDA stated that “Where a wife desires to effect a divorce from her husband, without his consent, on the ground of ill-treatment or on account of any act or omission on his part which amounts to a ‘fault’ under the Muslim Law governing the sect to which the parties belong, the procedure laid down in the Third Schedule shall be followed,”. Under Fasakh divorce, physical ill-treatment or cruelty such as assault, non-maintenance of the wife by the husband, malicious desertion, and adultery are the accepted grounds for a divorce. Impotency of the husband at the time of the marriage, insanity, and inability to maintain the wife are not accepted as the grounds to get a Fasakh divorce.

Issues in Muslim law compared to other private laws

Subsequently, the mentioned facts confirmed that comparing the private laws of Sri Lanka, Muslim law stand out as different in both marriage and divorce laws. It is why this topic has been talked out in seeking justice for both parties in a marriage. Compared to other private laws woman rights are lower in Muslim law. They cannot marry out of the act or it will be an illegal and annulled. It is evident that woman is being ill-treated and neglected as a party even to give consent in a marriage. When focusing on inequality in Muslim marriage law, the consent of the woman is discounted as a valid condition to contract a marriage, the minimum age is below compared to the age of marriage in other private laws where it could be even 12 years, it is also not an offence to go into a marriage with an underaged woman with the consent of Quazi court. In addition, according to the section 363 of the penal code, having sexual intercourse with a girl below the age of 16 with or without consent could amount as a rape. Later it was amended to exclude married girls above 12 years to 16-year-olds from this section. As a result, the age to count as a rape in Muslim law is 12 years. The wife had to resides with the husband for 3 months after the dissolution of marriage through Talaq. In this period the woman is not protected by the law even if they resulted in a marital rape. In the event of registration only the bridegroom is allowed to consent and also if cannot be registered within the day of the wedding seven days of time has been given to them to get a report with simple details of the ceremony. It is obvious that this law is violating woman’s rights in being in a marriage and the importance of being registered as a married couple is also less cared. The right that has been given to men to be contracted to more than one marriage at a time is also an evident that woman rights have been taken away. The man in the marriage could also be in a polygamy where he can contract into another marriage while being in another. Similarly, divorce conditions are not identical for both parties meaning husband can easily contract a divorce without reasoning but wife should justify reasons with extensive proceedings. The MMDA blocks the equal protection of human before law which is a fundamental right.

Suggested reforms to MMDA and current situation

Many Muslims as well as many individuals around the country have spoken about this matter since 1950s. their voice was never to cancel or revoke the act but to reform and restructure. They voiced out about the gender discrimination they face, the discrimination of the Quazi courts and its decisions on woman, and most importantly that they do not have an opportunity to talk and represent themselves whenever needed to. They have the fear of being threatened for speaking up about their matters which is unfair according to fundamental rights. Throughout the past public have used different approaches to find a solution and a relief but none worked out. Nonetheless, in 2009 the Justice Minister appointed a committee to submit a report on the reforms. Later a joint cabinet memorandum was passed to amend the MMDA in 2019. It stared out with providing a standard age of marriage as 18 years for both men and woman. Quazi courts can give approval from 16 years if needed or it could be an offence with 1-2 years imprisonment with Rs. 100,000. The registration is mandatory and if not considered as an offence. If the parties are in different groups they can mutually agree to a general governance. The consent of the bride is mandatory and the signature will be added to the register. The position of Wali will stay the same and will consent and sign in addition to the bride. The conditions in a situation of polygamy without the consent of the woman, she must have the right to apply and contract a Fasakh divorce. Similarly, men should also have approval of the Quazi to be in a polygamy and if not will be considered as an offence. The dissolution of uttering Talaq is compensated for the aggrieved woman. Most importantly the position of the woman is more recognizable in marriage by removing the word ‘male’ for Registrar. In addition, the custody of children is to be decided by the Quazi, the elevation of Quazi courts as a fundamental, full time and permeant court in Sri Lankan judiciary.

In conclusion, the discriminating laws should be reformed immediately. Fairness and equal treatment for woman in Muslim culture should be talked about. Legally and practically the unfair state of affairs should be amended and implementing a proper basic law for Marriage and Divorce in Sri Lanka without gender deviation or cultural differences will mark the end for most of the unethical situations’ individuals face. Meanwhile changes according to their believes and practices could be added without discriminating any part of the society which will give them the freedom and right of religion.

Bibliography;

Marriage Registration Ordinance No. 19 of 1909.

Kandyan Marriage and Divorce Act No. 44 of 1952.

Muslim Marriage and Divorce Act No. 13 of 1951.

Joint Cabinet Memorandum, Amendments to the Muslim Marriage and Divorce Act 2019.

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Latest comments

  • 24
    6

    Allow Muslims to decide their own laws. Non-Muslims, please do not interfere.

    • 13
      1

      Gatam,
      .
      For once, we can agree.

    • 0
      4

      No. this is not a Muslim problem. Muslims can only decide on some cultural practices not involving a clear violation of basic human rights. Every human in the world can get involved in any other instances where universal human rights are grossly violated. That is why there is HRC.

      Child marriage or gross discrimination based on gender is not acceptable in today’s world. Thus, the Sri Lankan government and any Sri Lankan have the right to voice against these practices and take action to mitigate/ban them

  • 11
    1

    As explain by a Muslim MPs (Mujibur or Marikar) a reform to the MMDA to address the minimum age and consent issue among others have been in the works for over a decade by a panel of legal experts, Muslim leaders and Muslim scholars. These reforms have been agreed upon and waiting to be ammended to the MMDA.
    .
    So then why are there non Muslims on here (such as the two writers and many racist commenters) so hard up to try and portray this as an issue about which nothing is being done to address it. Something has been done. Enough with this meddling in other people’s affairs.
    .
    Each community has their own problems, as the government report stated the findings presented showed more than 75% of underage marriages being in sinhala-buddhist community. Let’s address this serious gross issue with the same vigor as these MMDA reformist a barking with ??
    .
    How about the fact that the Bible doesn’t allow for a woman to EVER be divorced from her husband, however ill-treated she maybe however much of domestic violence she might experience she is not entitled to get a divorce from her husband, EVER ! These are the issues that have to be addressed.

    • 1
      4

      sitrep24,
      Which Government report showed more than 75% of underage marriages are in Sinhala Buddhist community?

      “as the government report stated the findings presented showed more than 75% of underage marriages being in sinhala-buddhist community. “

  • 2
    1

    I do not know what the purpose of this very badly written article is, but what is said about the minimum age in Tesawalamai law (Ref. “Thesawalamei Law state that the minimum age for marriage is 18 years.” ) is wrong. According to Tesawalamai the marriageable age was originally 10 for a female and 14 for a male, but had been changed to 12 and 16.
     
    Ref.
    Tesawalamai
    by T. Sri Ramananthan
    1972 edition
    page 23
    “Parties must be of marriageable age:
    The age at which a female could marry was fixed to 10.
    The age at which a male could marry was fixed at 14.
    Subsequently these ages were altered to 12 and 16. ”

    • 2
      1

      So your comparison with the Muslim law is wrong, because its basically the same or even worse, as according to a lecture by Prof. K. Kanag-Isvaran (Ref. The National Trust – Sri Lanka, Monthly Lecture 56, 31.10.2013 ) even infant marriages are allowed in Tamil law, but the father has to grant permission, in comparison, according to you in Mulsim law its the consent of Quazi court that gives legal permission. So I really cannot understand your comparison of Muslim law with the Tamil law on this issue. They are basically the same. The difference is huge though how it is practised among Tamils and Muslims in reality. What needs to be a point of discussion is not what is the written law, but how to change the people in the right direction. Child marriages had been a problem among Tamils until recent times, but not to the degree or intensity of the Muslims. There are underage marriages among Sinhalese too, but its not so accepted in the Sinhalese society and has no religious foundations and is not controlled by religious institutions, while both Muslim and Tamil matrimonial laws have foundations in religiously sanctioned social practices or beliefs.

      • 3
        0

        Really sad effort to try and downplay the prevalence of underage marriages in the sinhala community.
        .
        Let’s stick to facts, more specifically the facts from a government study found from data collected from all communities that showed more than 75% of underage child marriages are the sinhala-buddhist community. I don’t know why you want to try and hide that FACT ?? I mean it’s understandable right, while the sinhala women are sleeping with lions in the forest (a story championed by uneducated buddhist monks and nationalist fools) the sinhala frustrated men must find an avenue to vent their frustrations on. Let’s give the sinhala men some credit here, at least theyre keeping it in the same species.
        .
        This is why I keep repeating my self. The sinhala buddhist community as a whole have absolutely no right to talk to monotheists about morality. How can someone who follows his own desires (no right or wrong; as per the law of the jungle, do anything you want as long as you’re the strongest no one will have any objection. A law that has become more visible under the rule of extremist sinhala buddhist in the past year and a half) be better than someone who follows the command from God.

        • 1
          2

          What is underage? There is a difference between a 17 year old girl and a 10 or 12 year old child marrying. 17 years is still under the age of 18 years, but a girl of 17 is much more mature than a 12 year old. You missed the part which says that Sinhalese marriage and divorce practices are not religiously controlled by religious leaders. Downplaying anything won’t help the enormous social and personal tragedy Muslim marriage practices cause to its victims, not to mention the country as a whole which suffers due to the massive explosion of population growth due to Muslims breeding like cats and dogs and Muslim women who don’t have a say in their own lives as they are deprived of higher education due to being forcefully married off to men who are most times old enough to be their fathers or grandfathers. If not allowing Muslim laws which allows child marriages and molestation is Sinhala Buddhist extremism, then its clear who has the problem. You can follow commands from your ever invisible God to marry children in a Muslim country, not here.

          • 1
            2

            BTW this country is a Sinhala Buddhist country. If you Muslims find it extremist in anyway, please feel free to go back to where ever you came from. Some say the are Arabia, some are from Tamilnadu while some are from East Asia. We don’t care where, just go back.

            • 1
              0

              P.P,
              “BTW this country is a Sinhala Buddhist country. If you Muslims find it extremist in anyway, please fee……..”
              Yes, that’s the sort of argument that won you so many votes in Geneva. There are bigots who learn, and bigots who don’t.

            • 1
              0

              PP,
              .
              Once for all, SRILANKA is not a buddhist country but buddhists dominated country. By fairness it is better to refer is multi religious, multi ethnic ccountry.

              If we attack tiny minority of muslim extremists, in the same manner, we should attack, tiny minority of sinhala extremists, who have now been on a rise in the country. Most hidden behind PINGUTTHARA SIVURA are hypocrites. Number one hypocrite is that Abhayarama Ananda thero. He is backpleaser to Rajakshes. In today s context, pinguththaraya and that Alle baluwansa are dead silent as if their tongues are tied. This kind of abusiveness should not exist in SANGA community. We need law and order enforcement also to such Sangayas if we really want to see a better srilanka.
              .
              Today, innocient people have become stray dogs and cats in MIDDLE east countries where human rights have no place. Who have become vocal against their injustices. Rajakashes live their luxury lives on the COSTS of poor man s taxes. Curse on them.

          • 1
            0

            Punchi,
            “not allowing Muslim laws which allows child marriages and molestation is Sinhala Buddhist extremism, “
            Is it Muslim extremism to object to child molestation in temples?
            Why don’t you set your own house in order before criticizing others?

    • 1
      0

      Though it is so prevalent in India, conventional story goes that, during Islamic invasions and occupation, the marauding soldiers who were in search of women to marry had one rule that they did respect: if the women is married they will leave her alone. So the convention began with child marriages to save their girl children.

      But, they fell from the frying pan into the fire. Girls and Women are still exploited by the boys family, especially by the mother-in-law in India.

      Ceylon Tamil society is a matriarchal one and the daughter is not sent out to mother-in-law’s home; hence the near zero conflict for the daughter-in-law.

      Besides, Tamil women marriage has gone well after late twenties nowadays due to war and post-war situations.

      Meanwhile, for one country even within a federal set up, there should always be only one set of marriage law. Girls must be protected and liberated.

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