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.
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.